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Board of Overseers of the Bar v. John D. Duncan
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Docket No.: BAR-08-3
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 8, 2008
Respondent: John D. Duncan
Bar Number: 001077
Order: Disbarment
Disposition/Conduct: Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation
Order of Disbarment M. Bar R. 7.2(b)(5)
Background
In this matter, the Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis, and Defendant John D. Duncan (Duncan) was represented by Attorney George T. Dilworth. The Court, on May 1, 2008, approved counsel's Stipulated Waiver of Grievance Commission Proceedings. As a result, the Court has jurisdiction to proceed directly in this disciplinary proceeding under M. Bar R. 7.2(b) and issue an Order of Disbarment absent any of the usual preliminary procedures of M. Bar R. 7.1(d) or (e). Through his counsel, Duncan has confirmed to the Court that he waives his right to appeal this matter to the Law Court and agrees the disciplinary sanction imposed, disbarment, is to be effective July 1, 2008.
The parties have stipulated to the following facts. Duncan was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. The Board of Overseers of the Bar asserts and it is agreed by Duncan that he engaged in very serious professional misconduct which constituted both violations of specific portions of the Code of Professional Responsibility as well as violations of the Maine Criminal Code (all of which is detailed below) for which he may be disbarred.
Attorney Duncan was admitted to the bar in Maine in 1978 and practiced law in Portland at Verrill Dana, LLP from 1978 to 2007. He became a partner at the firm in 1983.
On November 2, 2007, Duncan submitted to the Board a letter reporting his own professional misconduct. He admitted that he deposited checks from certain clients for the payment of legal and other services into a personal account. He also reported that he had diverted funds from a client who had previously appointed him to act under a durable power of attorney; instead of writing out the checks for legal services to the firm, he had written them to himself and deposited them into his own bank account. When confronted by the firm's managing partner, he confessed that he diverted those funds, but falsely denied that he had diverted funds from other clients. Duncan also reported to Bar Counsel that he withdrew from the firm on October 28, 2007, and had repaid the firm $77,500. Although he did not state definitively how many times he had diverted funds or the total amount of money involved, he admitted that there were other clients from whom he had diverted funds.
In late 2007 and early 2008, Verrill Dana and Eleanor M. Rommel - Duncan's legal secretary from August 2001 through June 13, 2007--filed respective grievance complaints against Duncan. Duncan understands, agrees and the Court so finds that, in summary, those complainants correctly alleged that Duncan had misappropriated funds meant for Verrill Dana or its clients in an aggregate amount of approximately $300,000, as described below, and that when he was initially confronted he falsely denied a substantial portion of his serious misconduct.
For a significant period of his practice, Duncan had been a leader of Verrill Dana's Private Clients Group, where he primarily handled estate planning and estate administration matters. Starting in September 1997 and continuing through January 2007, Duncan deposited checks for the payment of legal and other services totaling at least $109,000 into his personal bank account, and did not transfer the proceeds to the firm as he should have. Duncan also agrees that a client, JT, had appointed him to act under a durable power of attorney. As part of his duties, Duncan issued or authorized checks from that client's bank account for payment of legal fees. On occasion, he detailed in the client's check register the amount of the check and the firm's name as the payee, but Duncan wrote his name on the check as the payee. Duncan then deposited the check into an account he controlled.
In early June 2007, Ms. Rommel informed and provided supporting documentation to at least two experienced attorneys at Verrill Dana that she had become aware of documents and conduct confirming that Duncan had engaged in theft of a significant amount of a client's funds. When initially confronted on June 28, 2007 by one of those attorneys--the firm?s managing partner--Duncan then admitted only that he had diverted funds totaling $77,500.00 to himself from one client (JT) when those funds should have gone to the firm. He offered to repay the firm that amount and to resign from the firm.
The following week, on July 2, 2007, Duncan paid the firm $77,500 to repay the money he admitted he had diverted from that client. In his further discussions with Verrill Dana attorneys during the summer of 2007, Duncan continued to falsely claim he had not stolen any other client or law firm funds. Eventually, on October 22, 2007, Duncan admitted to Verrill Dana's legal counsel that he had improperly handled and diverted other clients ' funds that were properly owed to Verrill Dana. By letter dated October 28, 2007, Duncan resigned from Verrill Dana, to be effective December 31, 2007.
Duncan now agrees that his initial statements to Verrill Dana's managing partner and other attorneys at the firm were false and deceitful. There were additional instances where Duncan diverted payments totaling $31,500 from clients for legal fees to his own account.
Duncan admits that he also diverted other payments that were intended for Verrill Dana. Duncan received checks for legal services provided to several clients from the respective trust companies attending to their particular interests. Those checks were usually made out in his name. Duncan deposited such checks from trust companies, totaling $187,495.75, into a bank account that he controlled rather than turn them over to the firm.
Duncan has reviewed the summaries prepared by accountants hired by Verrill Dana, and he understands and agrees that their records confirm that the total amount of funds he improperly diverted is approximately $300,000. The total monetary amount that Duncan has repaid or that Verrill Dana has withheld from him as a result of his thefts exceeds $480,000. Duncan acknowledges that his misconduct was most serious and violated Maine Bar Rules 3.2(f)(2),(3) and 3.6( e)(1).
On June 10, 2008 Duncan appeared before the Cumberland County Superior Court (Crowley, J.), waived indictment and pled guilty by information to two counts of Theft (Class B). Specifically, Count I (Theft by Unlawful Taking or Transfer - 17-A M.R.S. Section 353) involved Duncan's theft of $109,000.00, and Count II (Theft by Misapplication of Property - 17-A M.R.S. Section 358) involved his theft $187,495.75. After inquiry, Justice Crowley accepted Duncan's two guilty pleas pursuant to M. R. Crim. P., Rule 11, and continued those matters for sentencing until September 10, 2008.
At that Criminal Rule 11 proceeding, each counsel confirmed for Justice Crowley that the parties' agreed recommendation to that court included a condition of probation requiring Duncan to make restitution totaling $296,495.75, minus any amounts that the Court finds he has already repaid to Verrill Dana. Duncan has also admitted to federal tax authorities that he did not report the income from this conduct on his tax returns, and he has agreed to waive indictment and plead guilty to federal tax evasion charges.
Order
The Court hereby orders Duncan be disbarred effective July 1, 2008. The Court further orders (pursuant to M. Bar R. 7.3(j)) that Duncan is disbarred for his lifetime. The long-term nature of the theft, over a ten-year period, and the size of the theft make clear to the Court that Duncan should not ever be eligible to apply for reinstatement to the Bar of the State of Maine. The Court further orders that all costs of this proceeding be paid by Duncan no later than September 10, 2008.
For the Court
Hon. Warren M. Silver, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Richard K. Dubois
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Docket No.: BAR-09-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 28, 2009
Respondent: Richard K. Dubois, Esquire
Bar Number: 007032
Order: Reprimand
Disposition/Conduct:
Disciplinary Order
This matter came before the Court upon the filing of an Information by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.2(b). Throughout the proceedings before this Court, the Board has been represented by Assistant Bar Counsel, Jacqueline L.L. Gomes and Defendant, Richard K. Dubois, has been represented by Attorney Michael E. Carpenter.
Following the filing of the Information and a conference with the Court, parties submitted stipulations of the facts and exhibits. The matter was heard in Bangor on December 21, 2009. At the hearing Richard Dubois testified, and counsel presented argument primarily directed to the nature sanction that the Court might impose. The matter was then submitted for decision based on the testimony at hearing, the stipulations and exhibits, and the arguments of counsel.
I. Case History
Mr. Dubois was admitted to the Maine Bar in 1990. He is in private practice as a solo practitioner in Caribou. Proceedings before the Board commenced in September 2007 when an attorney representing a client in a criminal proceeding that did not involve Mr. Dubois, learned of Mr. Dubois' participation in the transaction discussed below and reported it to the Board.
In October 2004, Mr. Dubois was the closing agent for a real estate transaction involving property located in Madawaska. The seller of the property was represented by another attorney. The purchaser was listed on all of the documents associated with the real estate transaction as Ricky Daigle. Mr. Dubois was contacted by Michael Pelletier, a former client, who said he wanted to refer a friend (Mr. Daigle) to Mr. Dubois regarding this real estate transaction. Mr. Dubois opened a file at his office reflecting that Mr. Daigle was the purchaser of the property. Mr. Dubois was to serve only as the closing agent. He did not represent the buyer or the seller.
Numerous telephone calls were made to the Dubois law office by Mr. Pelletier concerning the transaction. Mr. Dubois's legal secretary spoke with Mr. Pelletier in great detail about the transaction. She believed that Mr. Pelletier was actual purchaser of the property and that she had authority to answer any questions from Mr. Pelletier. However, this belief was not communicated to Mr. Dubois. The office calendar as kept by the legal secretary reflected that there was a closing for Michael Pelletier on September 27, 2004, followed by a closing for Ricky Daigle and the seller on October 1, 2004.
According to Mr. Daigle's testimony in federal court, Mr. Pelletier provided him with the directions to the Dubois law office as well as the date and time to meet Mr. Pelletier for the closing. Mr. Pelletier also informed Mr. Daigle that the closing was going to be postponed to September 28, 2004. This information had been provided by Mr. Dubois's secretary to Mr. Pelletier. Again, according to Mr. Daigle's testimony, prior to Mr. Dubois's arrival at the closing on September 28, 2004, Mr. Pelletier met Mr. Daigle in the parking lot of the Dubois law office. There Mr. Pelletier gave Mr. Daigle a bag containing cash.
The parking lot surrounds the building that contains the Dubois law office and six other businesses. Because the entrance to the Dubois law office is on the back of the building, portions of the parking lot are not visible to an individual entering law office.
When Mr. Dubois arrived, Mr. Daigle followed him into the building. Mr. Daigle and the secretary then joined Mr. Dubois in his personal office. Mr. Daigle put the bag containing cash in the amount of $50,540 on Mr. Dubois's desk and signed the closing documents. Mr. Daigle asked if he could leave. Mr. Dubois informed Mr. Daigle that he would not be given a receipt if he left before the cash was counted. Mr. Daigle left the law office.
Mr. Dubois, accompanied by his legal secretary, deposited the cash into his trust account. At the time of the transaction, Mr. Dubois did not file an Internal Revenue Service (IRS) Form 8300 regarding the receipt of the cash payment in excess of $10,000. The Internal Revenue Code, 26 U.S.C. ? 6050 I (a), (b) (2008) requires that any person engaged in a business who receives more than $10,000 cash in one transaction must file a return, and IRS Form 8300 is the means for filing that return.1
The seller attended a closing at the Dubois law office on October 1, 2004. It was the seller's belief that she was selling the property to Michael Pelletier. Mr. Pelletier was in the parking lot of the Dubois Law office when the seller entered the building, and they spoke to each other briefly. The seller signed the deed and closing paperwork (which listed the buyer as Ricky Daigle) without asking any questions of Mr. Dubois. The seller received a check from Attorney Dubois's trust account for the proceeds of the sale. According to her testimony, the seller then met with Mr. Pelletier in the parking lot outside of Attorney Dubois's office and gave him the keys to the property.
For serving as closing agent for this transaction, Mr. Dubois received a fee of$250.
Based upon Mr. Dubois's contacts with the court system, he knew that Mr. Pelletier was a reputed drug dealer in Aroostook County.
As a result of the above-described transaction, in 2007, Mr. Pelletier was convicted and Mr. Daigle pled guilty to charges of money laundering in federal court.
On October 2, 2007, approximately one week after receipt of the Grievance Complaint, Mr. Dubois filed an IRS Form 8300 regarding the transaction.
II. Conclusions
In this matter, Mr. Dubois was asked by a former client to perform a relatively minor function as a closing agent for a real estate transaction. Because of the apparent minor nature of the transaction, Mr. Dubois did not give it the attention it was due. Also, he failed to adequately supervise and communicate with his staff who undertook most of the communication to schedule and effectuate the transaction before his appearance for the closing. Further, when presented with over $50,000 cash as payment for the transaction, a payment method Mr. Dubois did not anticipate, he failed to be attentive to his legal obligation, pursuant to 26 U.S.C. ? 6050 I (a), (b), to file IRS Form 8300.
These actions were the result or Mr. Dubois's carelessness and inattention, but without any plan or intent to violate the law or his ethical obligations, or to aid any other person in violating the law.
For his conduct in failing to adequately supervise his non-lawyer legal secretary and failing to file an IRS Form 8300 regarding the receipt of a cash payment in excess of $10,000 at the time of the transaction, Attorney Dubois agrees and the Court finds that he violated the then applicable M. Bar R. 3.1(a) [Conduct Prejudicial to the Administration of Justice]; and 3.13(c)(2) [Failure to Properly Supervise Attorney's Non-Lawyer Staff.2
III. Sanction
For the violations of the Maine Bar Rules, cited above, that resulted from Mr. Dubois inattention and carelessness in this transaction, the Court ORDERS discipline and sanctions, as follows:
- By this ORDER, the Court tissues a Public Reprimand to Attorney Richard K. Dubois.
- Bar Counsel may file any further complaints regarding allegations of misconduct by Attorney Richard K. Dubois directly with this Court pursuant to M. Bar R. 7.2(b) when a preliminary review panel, acting pursuant to M. Bar R. 7.1(d)(5), first find probable cause that misconducts has occurred. This is limited to complaints initially received by the Board on or before the January 11, 2011.
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial CourtFootnotes
1Title 26 U.S.C. ? 6050 I (2008) states, in pertinent part:
(a) Cash receipts of more than $10,000. Any person -
(1) who is engaged in a trade or business, and
(2) who in the course of such trade or receives more than $10,000 in cash in 1 transaction (2 or more related shall make the return described in subsection (b) with respect to such transactions) shall make the return described in subsection (b) with respect to such transaction (or related transactions at such time as the Secretary may by prescribe.
(b) Form and manner of returns. A return is described in this subsection if such return -
(1) is in such form as the Secretary may prescribe,
(2) contains -
(A) the name, address, and TIN of the person from the cash was received,
(B) the amount of cash received,
(C) the date and nature of the transaction, and
(D) such other information as the Secretary may prescribe
2The Maine Bar Rules, including its Code Professional Responsibility, are applicable to this proceeding because all events at issue occurred prior to the August 1, 2009, date of the Maine Rules of Professional Conduct.
Board of Overseers of the Bar v. Margaret P. Shalhoob
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Docket No.: GCF 08-311
Issued by: Grievance Commission
Date: December 1, 2009
Respondent: Margaret P. Shalhoob, Esquire
Bar Number: 003676
Order: Reprimand
Disposition/Conduct:
Stipulated Report of Findings and Order of Panel A of the Grievance Commission M. Bar. R. 7(e)(2)(4)
On December 1, 2009, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, Margaret P. Shalhoob, Esq. This disciplinary proceeding had been commenced by the June 22, 2009 filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar.
At the hearing, the Respondent was represented by Attorney Dale F. Thistle and the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria Eee. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Although Complainant, District Court Judge Jessie B. Gunther did not attend the hearing, the second complainant Brice E. Gould, did attend and he offered comments to the Panel concerning the proposed Report.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Margaret P. Shalhoob (Shalhoob) of Bangor, County of Penobscot, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Shalhoob was admitted to the Maine Bar in 1987 and she is currently registered as an active Maine attorney, practicing in Bangor.
Attorney Shalhoob regularly represents court-appointed clients in Maine's District Courts. During the month of August 2008, Attorney Shalhoob encountered some difficulties managing her calendar and court schedule. Part of the difficulty arose because of the absence of her support staff that month. As a consequence of those difficulties, Attorney Shalhoob failed to appear for two protective custody case hearings in August and September, 2008. In response to that failure, Judge Gunther sanctioned Attorney Shalhoob and filed the complaint referenced herein.
During the same time period, Mr. Gould engaged Attorney Shalhoob to represent him in some estate planning matters. Again, due to the decline in Attorney Shalhoob's law practice management, she did not appropriately communicate with Mr. Gould and did not timely address his legal matters.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Shalhoob's lapse in August-September 2008, there were negative impacts up on her clients' affairs and within her role as an officer of the court. The panel notes that Attorney Shalhoob has taken responsibility for her transgressions. While she has no history of bar discipline, Attorney Shalhoob did receive a public dismissal with a warning in 2006 for reasons unrelated to the instant complaints. At the disciplinary hearing, Attorney Shalhoob expressed remorse for her violations of M. Bar. R. 3.6(a)(2)(3) of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Shalhoob agrees that she did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Shalhoob's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Margaret P. Shalhoob, Esq. which is now hereby issued and imposed up on her pursuant to M. Bar R. 7. 1(e)(3)(C), (4).
For the Parties
Board - Aria Eee, Assistant Bar Counsel
Respondent - Margaret P. Shalhoob, Esquire
For the Grievance Commission
Harold L. Stewart, Esquire
Paul A. Cavanaugh, II, Esquire
Raymond J. Cota
Board of Overseers of the Bar v. James B. Smith
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Docket No.: GCF 07-029
Issued by: Grievance Commission
Date: October 19, 2009
Respondent: James B. Smith, Esquire
Bar Number: 000350
Order: Reprimand
Disposition/Conduct:
Stipulated Report of Findings and Order of Panel C of the Grievance Commission M. Bar R. 7.1(e)(2)(4)
On October 19, 2009, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, James B. Smith, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 11, 2009.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Smith appeared with Attorney James M. Bowie. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. The complainant, Jeffrey P. Buhrman, did not attend the Stipulated Hearing, but had previously received a copy of the Proposed Report and informed Bar Counsel that he did not object to the issuance of such a Report.
Having reviewed the agreed, proposed findings as presented by counsel and having heard from counsel and received testimony from Attorney Smith at that hearing the Panel now makes the following disposition:
Findings
Respondent James B. Smith, Esq. of Biddeford County of York State of Maine is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
The Board asserts upon information and belief within paragraphs #4 through #24 that Attorney Smith violated specific portions of the Code of Professional Responsibility as set forth below for which he should be disciplined.
Jeffrey P. Buhrman (Buhrman) Esq. of South Portland Maine filed a complaint on January 25, 2007. Attorney Smith filed his initial response on March 23, 2007 denying that he mishandled the representation of his client in her real estate transaction.
During the course of the Board?s investigation Attorney Buhrman and Attorney Smith were afforded opportunities for rebuttal and supplemental responses resulting in a fully developed investigation pursuant to M. Bar R. 7.1(b).
On August 16, 2007 a panel of the Grievance Commission reviewed Attorney Smith's actions in this matter, and based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Specific Facts of His Misconduct
Attorney Smith commenced representation of Felicidade Thurber on September 17, 2004. She was then 87 years old.
Ms. Thurber had been referred to Attorney Smith by another local law firm to provide representation to her concerning her daughter, Linda Wright-Phelps', proposed purchase of Mr. and Mrs. Thurber's residence in return for a life estate to her parents.
At the time of Attorney Smith's first meeting with Mrs. Thurber, he was aware that her 91-year old husband (and the adoptive father of Ms. Wright-Phelps), Everett Thurber, was residing in an assisted living facility.
Attorney Smith never met independently with Mrs. Thurber before the closing for that real estate transaction.
Hence, Mr. and Mrs. Thurber would lose the ability to sell or mortgage their home to privately pay for long-term care costs as well as lose approximately 80% of the value of their estate.
The life lease would be subject to a loan that Ms. Wright-Phelps was obtaining.
Attorney Smith was aware of the pending guardianship matter involving Mr. Thurber and had been informed by Ms. Wright-Phelps that it was uncontested. However, he did not independently confirm with the Probate Court whether the proceeding was in fact uncontested, whether Mr. Thurber had independent counsel in that proceeding or whether anyone opposed Ms. Wright-Phelps' petition.
Attorney Smith did not directly contact Mr. Thurber to determine whether he had any objections to the real estate transfer, believing that Ms. Wright-Phelps' appointment as his temporary guardian meant that he lacked the capacity to understand that transaction.
Mrs. Thurber held a Power of Attorney for her husband that had been executed by Mr. Thurber in February of 2004.
The Power of Attorney placed the following restriction on Mrs. Thurber's authorization to make gifts: "no distribution ... shall be made except upon review and written certification by an attorney from the Law Offices of Smith Elliott Smith & Garmey, P.A., or its successor, or any attorney experienced in estate planning and/or elder law that such distribution is appropriate (i.e. advisable as an estate planning and/or Medicaid planning measure) ... and is otherwise in my best interests."
While factual evidence supported a judicial finding that Attorney Smith assisted Mrs. Thurber in exceeding her authority under the Power of Attorney, and failed to appropriately evaluate her mental condition and competence which caused a drain on judicial resources and compounded the litigation and family distress, Attorney Smith denies that he knowingly did so.
Nevertheless, by Order dated August 1, 2006, York County Superior Court Justice Fritzsche ruled on a Motion for Summary Judgment filed by the personal representative for the estate of Everett Thurber (ALFSC-RE-06-053). By that Order, the court rescinded the deed from Felicidade Thurber to Linda Wright-Phelps on the grounds that the transaction ... "was for well below market value, fiduciary obligations were not met, and the restrictions on a power of attorney were not followed" (Page1 of Order on Pending Motions dated August 1, 2006).
Although Attorney Smith did not initially accept or understand the seriousness of his misconduct in this entire matter, he does so now. In fact, he has attempted to assist in resolving the disruption and disturbance suffered by the Thurber Estate as a result of the transaction at issue, including participating in a resolution which involved having him and his law firm pay a financial consideration.
Attorney Smith now agrees his conduct in this representation violated Maine Bar Rules 3.6(a) and (j) in that he did not employ reasonable skill and care or use his best judgment in the handling of Mrs. Thurber's transaction, and failed to recognize or appreciate her diminished mental capacity. Although at the time Mrs. Thurber appeared to him to have sufficient understanding and capacity to communicate her wishes and make decisions concerning her real estate, Attorney Smith now agrees the total facts showed otherwise.
Attorney Smith agrees that despite her apparent normal or satisfactory presentation and performance at meetings with him (which were never private), Ms. Thurber in fact had a variety of mental and physical conditions that impaired her judgment.
In hindsight, Attorney Smith agrees and admits he should have met privately with his client, Ms. Thurber, without the presence of her daughter, Ms. Wright-Phelps, and that he failed to ever do so.
Therefore, Attorney Smith agrees that by his conduct he engaged in violations of Maine Bar Rules 3.6(a)(standards of care and judgment) and 3.6(j)(client with diminished capacity).
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Smith's actions, judicial and attorneys' time and resources were necessarily expended for participation In the resulting litigation in the York County Superior Court.
The Panel notes that Attorney Smith has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Smith expressed his remorse for his violations of the Code of Professional Responsibility. The Panel also expects that there is little likelihood of repetition of such misconduct by Attorney Smith. The Panel was informed that Attorney Smith was previously reprimanded in 1994 for conduct dissimilar to that involved here, i.e. improperly threatening prosecution, and has received no other misconduct sanctions.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Smith agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Smith's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney James B. Smith which is now hereby issued and imposed upon him pursuant to M. Bar R. 7. 1(e)(3)(C),(4).
For the Parties
J. Scott Davis, Bar Counsel
James B. Smith Esq., Respondent
James M. Bowie, Esq. Attorney for Respondent Smith
For the Grievance Commission
David S. Abramson, Esq, Panel C Chair
Martha C. Gaythwaite, Esq.
Christine Holden Ph.D.
Board of Overseers of the Bar v. Michael Montembeau
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Docket No.: BAR-09-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 6, 2009
Respondent: Michael I. Montembeau
Bar Number: 009211
Order: Suspension
Disposition/Conduct:
Disciplinary Order M. Bar R. 7.2(b)
Background
In this matter, the Board of Overseers of the Bar was represented by Assistant Bar Counsel Jacqueline L.L. Gomes, and Defendant Michael I. Montembeau was represented by Attorney Peter J. DeTroy. On June 11, 2009 the Court approved counsel's Stipulated Waiver of Grievance Commission Proceedings. As a result, the Court has jurisdiction to proceed directly in this disciplinary proceeding under M. Bar R. 7.2(b) and issue a Disciplinary Order absent any earlier Grievance Commission hearing under M. Bar R. 7.1(e). At the hearing of this matter, Attorney Montembeau expressed his remorse and apologized for his misconduct, confirmed that he waives his right to appeal this Order to the Law Court and also agreed that the sanctions imposed by this Order are effective on the date of this Order. Charles W. Smith, Jr., Esq. who is a partner of Smith, Elliot, Smith & Garmey the injured party in this matter was present at the hearing. He was provided with a copy of the proposed Order and notice of the hearing. Attorney Smith indicated that he had no objection to the proposed Order.
Stipulations
Counsel for the parties have stipulated to the following material facts now found and adopted by the Court.
At all times relevant hereto, Attorney Montembeau has been an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. He practiced land use law and general litigation with the law firm of Smith, Elliot, Smith & Garmey in Saco from 2005 until April 1, 2008. By Attorney DeTroy's filing letter of April 4, 2008, Attorney Montembeau self-reported to Bar Counsel J. Scott Davis his misconduct in two separate instances as summarized below. Smith, Elliot, Smith & Garmey reported the misconduct by a letter dated April 7, 2008. While Attorney Montembeau has maintained an active license to practice law, he has not engaged in the practice of law since April 1, 2008.
The June 2007 Fraudulent Bill
Attorney Montembeau began representing a couple regarding a boundary dispute in the fall of 2006. The clients had title insurance through Chicago Title Company (Chicago Title) which agreed to pay for the legal defense of the clients. Attorney Montembeau attempted to persuade the other parties involved in the litigation to compensate his clients for costs they incurred to secure housing during the time they were not permitted to build a home on their property. Those attempts were unsuccessful. Attorney Montembeau then tried to persuade Chicago Title to compensate his clients for the same costs. In June 2007, Chicago Title informed Attorney Montembeau that it would not make any payment for displacement costs. On or about June 12, 2007, Attorney Montembeau submitted an invoice to Chicago Title in the amount of 23,066.76.
The document that Attorney Montembeau prepared and dated June 12, 2007 purported to be an invoice for the boundary dispute case. It was created by Attorney Montembeau in a word processing program outside the law firm's normal billing protocol, i.e. an invoice generated by computer automation from contemporaneously maintained time and billing records of the firm's employees. The invoice was approximately $7,000 higher than the actual time charges expended on the case. Chicago Title paid the invoice in full in August 2007 by a check made out to Smith, Elliot, Smith & Garmey. The check was deposited into the firm's trust account. Attorney Montembeau provided the clients with a check from the firm's trust account in the amount of $7,000.
Attorney Montembeau agrees that he misrepresented to Chicago Title the amount of total time and hourly rates included on the invoice he submitted in June 2007.
The firm's internal time and billing records - based upon the contemporaneous entries of firm staff into a time and billing data base - resulted in an actual billable amount of time spent by the firm on behalf of Attorney Montembeau's clients of $16,066.76. The firm was paid $16,066.76 from a check written on the firm's trust account based on the remittance by Chicago Title. Attorney Montembeau did not disclose this misconduct to his firm.
By his conduct in preparing and presenting inaccurate information to Chicago Title on behalf of a client concerning the above billing information, Attorney Montembeau agrees and the Court so finds that he violated M. Bar R. 3.2(f)(3) and 3.3(a).
The October 2007 Fraudulent Bill
On or about October 25, 2007, Attorney Montembeau submitted another invoice to Chicago Title in the amount of $18,584.50 for work purportedly done on the same case.
The document that Attorney Montembeau prepared and dated October 25, 2007 was again created by Attorney Montembeau in a word processing program outside the firm's normal billing protocol, i.e. an invoice generated by computer automation from contemporaneously maintained time and billing records of the firm's employees. The invoice was approximately $6,000 higher than the actual time charges expended on the case. On or about March 12, 2008 Attorney Montembeau wrote a letter to Chicago Title offering to discount the invoice to $14,000 if paid in full within a week. The discounted amount overstated the value of legal services provided by Attorney Montembeau by $2,000.
Attorney Montembeau agrees that he misrepresented to Chicago Title the amount of total time and hourly rates included on the invoice he submitted in October 2007.
The firm's internal time and billing records - based upon the contemporaneous entries of firm staff into a time and billing data base resulted in an actual billable amount of time spent by the firm on behalf of Attorney Montembeau's clients of $12,584.50. Chicago Title did not pay either the October 27, 2007 invoice or the discounted amount proposed by Attorney Montembeau. Attorney Montembeau did not disclose this misconduct to his firm.
By his conduct in preparing and presenting inaccurate information to Chicago Title on behalf of a client concerning the above billing information, Attorney Montembeau agrees and the Court so finds that he violated M. Bar R. 3.2(f)(3) and 3.3(a).
Order of Sanctions
It is agreed by the parties and now so found by the Court that Attorney Montembeau engaged in professional misconduct. Attorney Montembeau engaged in misrepresentations and misstatements to Chicago Title regarding the law firm's bill and diverted money paid for attorney's fees to his clients.
Attorney Montembeau's misconduct violated specific portions of the Code of Professional Responsibility as noted above, for which Attorney Montembeau is now disciplined and sanctioned. It is hereby ORDERED:
For his misrepresentations to Chicago Title, collection of an excessive fee, diversion of attorneys fees to his clients and resultant violations of Maine Bar Rules 3.2(f)(3) and 3.3(a) the Court issues a suspension from practice of 15 months retroactive to April 1, 2008. Pursuant to Bar Rule 7.3(j)(1), in order to return to practice in Maine he must thereafter petition for reinstatement. Prior to petitioning for reinstatement, he must complete the restitution payments to Smith, Elliot, Smith & Garmey of $7,000 in accordance with the agreement he executed May 13, 2009. He must also provide a written plan to be approved by Bar Counsel regarding appropriate financial safeguards and the manner and types of such safeguards he proposes. Although such misconduct often results in the Court's appointment of a Monitor upon reinstatement to supervise and control the disciplined attorney's conduct for an appropriate period of time, given Attorney Montembeau's remorseful attitude and actions, his filing of a self-report, his acknowledgement of his misconduct, his self-imposed sabbatical from the practice of law and his apology to the Court, the Court is satisfied that it is not necessary to appoint a Monitor in this instance; and
Attorney Montembeau shall refrain from any misconduct in the future. Bar Counsel has the authority to notify the Court of Attorney Montembeau's non-compliance with this Order and to file any future complaints of his misconduct directly with this Court without any prior review by and/or hearing before the Grievance Commission for such action as may be found or deemed appropriate.
For the Court
Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Clarence H. Spurling
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Docket No.: GCF 06-246, GCF 08-447
Issued by: Grievance Commission
Date: October 31, 2009
Respondent: Clarence H. Spurling, Esquire
Bar Number: 007416
Order: Reprimand
Disposition/Conduct: Conflict of Interest: Successive Representation
Report of Findings Panel E of the Grievance Commission
On September 29, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing, open to the public, pursuant to Maine Bar Rule 7.1(e)(2). The disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar [the Board] on February 10, 2009 (GCF# 06-246) and May 28. 2009 (GCF II 08-447). These petitions were consolidated for hearing. The petitions allege violations of M. Bar Rules, 3.1(a), 3.4(d) and 3.6(h). At the hearing, the Board was represented by Assistant Bar Counsel Aria Eee and the Respondent, Charles H. Spurling, Esq. was represented by Julian L Sweet, Esq. The complainant in 08447, Nadine Hinkley (formerly Nadine Hurley) was also present. The Respondent, Ms. Hinkley, Attorneys Alice Knapp and Barbara Raimondi testified. The Panel accepted into evidence Board Exhibits 1-23, 29, 30,33, and 34, and Respondent Exhibits l-8.
Findings
Respondent Clarence H. Spurling of Gardiner, Maine, has been at all times relevant to the petitions an attorney admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Spurling was admitted to practice in 1991 and he is in a private practice in Gardiner.
Respondent has extended family in the community in which he practices. Among them is a cousin John P. Hurley, who was married for many years to Nadine G. Hinkley [then Hurley]. Ms. Hinkley was involved in a rear-end collision in 2001 and retained Respondent to pursue her claim for damages. Her principal claim was for the loss of her vehicle, but personal injury was also an element of damages. Ms. Hinkley's deposition was taken on May 16, 2003, and the matter settled in September 2003 on the eve of jury selection. Near the end of the personal injury case, Ms. Hinkley was at least contemplating divorce and approached Respondent for representation. He declined to represent her, because of his family relationship with Mr. Hurley.
Ms. Hinkley filed for divorce in August 2005 and Mr. Hurley asked Respondent to represent him. Respondent considered the matter and made a determination that his former representation of Nadine [Hinkley] was not a conflict within the meaning of the Maine Bar Rules, and entered his appearance on behalf of Mr. Hurley. Ms. Hinkley's first counsel, Attorney Knapp, also had a conflict of interest because she had initially discussed joint representation with both parties, and drafted a settlement agreement between them. Ms. Hinkley wanted Attorney Knapp to continue in the case representing her, and offered several times that each party waive the conflict for Attorneys Knapp and Spurling respectively. Respondent made it clear that Mr. Hurley was unwilling to waive Attorney Knapp's conflict, but, since he perceived no conflict on his own part, Respondent intended to proceed with representing Mr. Hurley.1 Attorney Knapp then filed a motion in the District Court to disqualify Respondent as Mr. Hurley's attorney and withdrew from representing Ms. Hinkley. The motion was prosecuted by successor counsel, Attorney Raimondi. Respondent vigorously opposed his own disqualification, arguing to the District Court that Me. Bar Rule 3.4(d)(l)(i) did not apply in the circumstances of this case and that he should not be removed. Bd. Ex. 9, 10, 12.
The District Court had a testimonial hearing, and, on June 9, 2006, the District Court filed a Decision and Order removing Attorney Spurling as defendant's counsel. Nadine G. Hurley vs John P Hurley, Docket No. WES-FM-05-364.
Maine Bar Rule 3.4(d)(l)(i) prescribes a two pronged test for disqualification from representing an adverse party in a successive case:
(i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation. [emphasis added]
The District Court found that the personal injury case raised questions of Ms. Hinkley's "...health, prior injuries, work history and income-earning capacity," which would also be at issue in a divorce case if the Court were required to resolve issues of spousal support, attorneys fees, or parental rights and responsibilities. Thus, the divorce case met the "substantially related" prong of the Rule. Decision and Order, June 9, 2006 (Bd Ex. 13) at 5. The District Court also found that Ms. Hinkley had communicated to the Respondent confidential information regarding her health, prior injuries, work history and earning capacity in the course of the personal injury case, thus meeting the second prong of the Rule. ld, at 6. Thus, the Court concluded that "Attorney Spurling's prior representation of Mr. (sic for "Ms."] Hurley in (a] personal injury action ... is sufficient to disqualify him under Maine Bar Rule3.4(d)(1)(i)." Decision and Order, June 9, 2006 (Bd Ex. 13) at 4. On June 20, 2006 Bar Counsel filed a sua sponte grievance complaint against Attorney Spurling for conflict of interest.2
Respondent filed an interlocutory appeal from the Decision and Order. Respondent prosecuted the appeal on behalf of Mr. Hurley through the process of settling the record, which was contested in this case. Bd. Ex. 15, 16, 17. New counsel appeared and briefed the case for Mr. Hurley at the Law Court. This appeal was decided in Nadine G. Hurley vs. John P. Hurley, 2007 ME 65 (decided May 22, 2007); the Law Court affirmed the decision of the District Court. The Law Court "use[d] a highly deferential standard of review," since both prongs of the Rule require a factual determination. The decision was reviewed for clear error; the District Court would be found in error only when there is no competent evidence in the record to support its decision. Id, ? 8.
From June 2006 to May 2007, Attorney Raimondi felt she was unable to move forward with the divorce, both because the file was transmitted to the Law Court and because dealing with the Respondent on substantive issues would prejudice Ms. Hinkley's case. The divorce was eventually settled in December 2007.
Shortly thereafter, Ms. Hinkley filed a grievance complaint against Respondent, docketed GCF #08-447, for his failure to withdraw from his conflicting representation of Mr. Hurley, and cited the following as the resulting injury to her:
Thus my divorce ground to a halt for over sixteen months severely prejudicing me as I was unable to move on from my failed marriage, I was forced to maintain John on my health insurance, I was unable to proceed with a child support hearing and I incurred several thousand dollars defending my ultimately successful motion.
Bd. Ex. 20. It appears from her complaint that she was unaware of the pending sua sponte Bar Counsel complaint.
At hearing Respondent's central argument is that the decision in Hurley vs. Hurley was a radical departure from the prior law on the scope of disqualifying conflict in successive representation; that no reasonable lawyer in Respondent's position could be expected to anticipate the interpretation of the Rule set forth in the Hurley decision. Thus, Respondent should not be disciplined for pursuing his interpretation of the Rule.
Discussion
Much of Respondent's evidence at the hearing revisited the facts in both the personal injury case and the divorce, in an attempt to demonstrate that his representation in the divorce matter was not "substantially related to the subject matter of the former representation," nor did it "involve the use of confidential information obtained through such former representation." Respondent sought to demonstrate that, although personal injury was a minor component of the automobile accident case, he never actually learned anything of significance about Ms. Hinkley's health, past injury, or past and future earning capacity.
The Panel rejects this argument for three reasons.
First, Respondent's analysis of his conflict, and of thus his duty to Mrs. Hinkley, must be made at the time that he accepted representation of Mr. Hurley. Facts that came to light after he appeared for Mr. Hurley cannot be used to bootstrap him into compliance with the Rule. Divorces are notoriously changeable as to the issues in dispute. Thus, the Respondent was in error at the time that he concluded that the divorce case was not "substantially related" to his earlier representation of Ms. Hinkley in the personal injury case.
Second, by parallel reasoning, the Respondent was in possession of confidential information from Ms. Hinkley which he may have been called upon to use in the divorce case. This included information about her health, prior injuries, work history and earning capacity. He assisted her in preparing and signing interrogatory answers and objections on these topics. Bd. Ex. 21, Answers 14 - 22. That the information was in fact negative or trivial from the Respondent's point of view is beside the point. The significance of the confidential information must be judged from the client's point of view. See, Grievance Commission Opinion #2, 10/17/1979; see, M. Bar R. 2(a). From a lay person's perspective, the confidential information was significant.
Third, the Panel does not agree that the Law Court's holding in the Hurley case was a radical departure from prior law and the generally understood limits of permissible successive representation. The basis for this suggestion appears to be the discussion by the Law Court that confidential information could include " ... information about the way in which Nadine [Ms. Hinkley] handled the litigation process." 2007 ME 65, ? 13. Confidential information of this type was briefly mentioned by the District Court. Decision and Order (Bd Ex. 13) at 6.
Moreover, confidential information of this type was discussed in Adam vs. MacDonald Page &Co., 644 A.2d 461 at 464 (Me. 1994). Adam was cited with approval by the law Court in Hurley. 2007 ME 65,? 14.
As early as 1979, an Advisory Opinion of the Grievance Commission spoke of "apparent" as well as "actual" disclosure of confidences in a successive representation. Grievance Commission Opinion #2, 10/17/1979, at 2.
Ethical considerations, as well as Rule 3.4(e), suggest avoidance of representation where there may be a possible violation of confidence.
Id, 3. [emphasis in original]3
The Panel finds that, when approached by Mr. Hurley to represent him in the divorce, the Respondent had a duty to his former client Ms. Hinkley to decline to do so; that this disability should have been apparent to the Respondent at the time; and that this conclusion was not a novel or unexpected interpretation of the Rule.
Conclusion and Sanction
The Code of Professional Responsibility establishes the duties owed by an attorney to his or her client. Attorney Spurling substantially deviated from his duties to his former client, Ms. Hinkley, when he accepted representation of Mr. Hurley in the divorce.
M. Bar R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. A Public Reprimand serves those purposes.
Therefore, the Panel herby issues a Public Reprimand to Clarence H. Spurling, Esq, as provided by M. Bar R. 7.1(e)(3)(C).
For the Grievance Commission
Victoria Powers, Esq., Chair of Panel E
Jack Hunt, Esq.
Michael K. Knowles
Footnotes
1Attorney Knapp explicitly threatened to make a Bar complaint if Respondent did not advise Mr. Hurley to sign a waiver, or withdraw. Since Respondent did neither, and Ms. Hinkley eventually did file a complaint, Respondent has characterized the complaint as "retaliatory." Since this complaint was made two and one half years after the fact, it is difficult to see it as retaliatory. In any event, Attorney Knapp's motives are not relevant to the Panel's decision, which focuses on the Respondent's conduct.
2 The District Court directed that a copy of the Decision and Order be sent to Bar Counsel for review Id fn 3.
3 The facts in the Advisory Opinion parallel those faced by the Respondent. In that case, the attorney was approached by three tenants of a trailer park to bring suit on their behalf against the park developer for a malfunctioning septic system. Earlier, the attorney had represented the park developer for the real estate transaction acquiring the park property, and in obtaining the local and State approvals necessary to develop the trailer park. The former client believed that the septic system had been an element in the approval process; the attorney believed not. Id. The Grievance Commission was of the opinion that the attorney should decline the representation for two reasons. First, to accept the successive representation would erode public confidence in the confidentiality of lawyer communications; second, it would create a risk of later finding it necessary to withdraw, placing an unnecessary burden on the client. Id, 3.
Board of Overseers of the Bar v. Jed Davis
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Docket No.: GCF 07-308 & GCF 07-309
Issued by: Grievance Commission
Date: December 30, 2008
Respondent: Jed Davis, Esquire
Bar Number: 001686
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Threatening Prosecution
Report of Findings of Grievance Commission Panel D
On December 29. 2008, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(c )(2), concerning the Respondent, Jed Davis, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel on July 11, 2008, alleging violat ions of M.Bar R.3.1(a), 3.6(c), and 3.6(g).
At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes, and Respondent was present and represented by Peter J. DeTroy, Esq. The Board 's exhibits marked Board Exh. 1-12, and Respondent's Exhibit 1, were admitted without objection.1 The Panel heard testimony from Attomey Davis, David Lothridge. Shannon Shea, Ryan Shea, Karen Lothridge, and Craig Donovan.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
Findings
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules. In August 2007, Mr. Donovan engaged Respondent in connection with a dispute with his neighbors over the use of a private camp road. On August 30, 2007, Respondent sent identical letters to Mr. and Mrs. Lothridge, and to Mr. and Mrs. Shea, that contained, among other things, the following paragraph:
I don't know if you're mentally ill or just nasty; but your outrageous behavior must cease immediately. My client has a right-of-way over Lothridge Lane, and it is illegal for you to interfere with his use of it. (By the way, the last mentally-ill person who tried to do this to a client of mine ended up in jail.
The four recipients of this letter filed complaints with the Board of Overseers. Ryan Shea, Shannon Shea, and David Lothridge each complained, and subsequently testified, that they found the letter insulting, demeaning, threatening, and unprofessional. Karen Lothridge wrote:
I feel it was an expressed threat for Mr. Davis to say, "By the way, the last mentally ill person who tried to do this to a client of mine ended up in jail." He is inferring we are all "mentally ill" and we may get jail time. NOT AT ALL PROFESSIONAL. ... If I were a lawyer I would be ashamed to admit that Mr. Davis was a lawyer also.
In response to the complaints, Respondent listed various actions that his client had alleged the complainants to have committed, and concluded, "Given such outrageous behavior, my letter was not unreasonable." Respondent admitted at the hearing, however, that he had not investigated the facts of the matter in any way prior to sending the letter, and had relied entirely on the version of the facts that was related to him by his client.2
At the hearing, Respondent's client testified that he had reviewed the letter before it was sent, and that he understood it to threaten the recipients with criminal prosecution. Each of the recipients also testified that they so understood it. Respondent, however, testified that he never even considered the possibility that his reference to an adverse party who "ended up in jail" could be interpreted as a threat to present criminal charges; instead, he testified that the wording of his letter related only to the unique circumstances of a previous right-of-way dispute in which he had been involved, in which the adverse party had been jailed for contempt after violating an injunction issued by the Superior Court. The Panel did not find Respondent's explanation credible. Further, Respondent was unable to provide any plausible explanation of what purpose the reference to "jail" might have served, if it was not intended as threat to present criminal charges, and if its purpose was not solely to obtain an advantage in this civil matter.
Conclusions
The Panel concludes that Respondent has conducted himself in a manner unworthy of an attorney in violation of M. Bar R. 3.1(a), both generally through the use of abusive language in his letter to the complainants, and specifically by threatening to present criminal charges solely to obtain an advantage in a civil matter in violation of M. Bar R. 3.6(c).3
Of great concern to the Panel is Respondent's contention that only conduct expressly prohibited by the Code of Professional Responsibility is subject to sanction. The Panel finds Respondent's view of the scope of sanctionable misconduct to be unduly constrained. The Maine Bar Rules specifically state that they are "intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to, their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of the State," M. Bar R. 2(a), and that "the prohibition of certain misconduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Because the proceeding before this Panel is "an inquiry to determine the fitness of an officer of the court to continue in that capacity," M. Bar R. 2(a), and because the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties, the Panel reaffirms its view that conduct that is not specifically prohibited by the Code, but that a reasonable attorney should know to be "conduct unworthy of an attorney," may be subject to sanction. As this Panel has previously stated:
Board of Overseers v. James L. Auddifred, GCF 05-286 (Sept. 1, 2006). The Panel therefore believes that Respondent's use of gratuitously offensive and abusive language in his letter to the complainants, without more, could have constituted misconduct subject to sanction under the Maine Bar Rules, and was behavior inconsistent with the office of an attorney.
The Panel also concludes, however, that Attorney Davis violated a specific provision of the Code of Professional Responsibility, namely the prohibition in M. Bar R. 3.6(c): "[a] lawyer shall not ... threaten to present ... criminal ... charges solely to obtain an advantage in a civil matter." The Panel concludes that, contrary to his assertion at the hearing, Respondent did specifically intend the statement in his letter to serve as a threat to present criminal charges, and that his sole purpose in doing so was for advantage in this civil matter. Accordingly, Respondent has engaged in misconduct that is subject to sanction under the Maine Bar Rules.
Sanction
In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent's actions clearly violated duties owed to the legal system, to the profession, and to the public. Respondent's letter was not merely, as Respondent characterized it, "indecorous," but gratuitously abusive. Further, Respondent clearly threatened to present criminal charges solely to obtain an advantage in a civil matter. The Panel is unable to conclude that Respondent's misconduct was minor.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
The Panel concludes that Respondent's conduct was intentional and knowing. In particular, the Panel found Respondent's testimony that he had no subjective intent to threaten criminal" prosecution not to be credible, especially as he was unable to articulate any persuasive explanation of what other meaning or purpose his statement in the letter might have had.
(iii) the amount of actual or potential injury caused by the attorney's misconduct;
Any economic injury caused by Respondent's misconduct appears to have been minor. While the recipients of the letter did engage an attorney who, among other things, cautioned Respondent to temper his communications, it appears that they likely would have required legal representation in the underlying right-of-way dispute in any event. However, the Panel concludes that Respondent's letter caused unwarranted distress to the recipients, and a loss of respect for the legal profession. The Panel is therefore unable to conclude that "little or no injury" occurred.
(iv) the existence of any aggravating or mitigating factors.
The Panel finds that aggravating factors present in this matter include Respondent's initial lack of recognition of his misconduct, and his initial lack of remorse. As a mitigating factor, the Panel notes that Attorney Davis has no prior disciplinary record on file with the Board of Overseers of the Bar, and that in his testimony, he did express remorse for the misconduct. However, in light of Respondent's initial difficulty in recognizing his violation of the Code of Professional Responsibility, the Panel is unable to conclude that there is little likelihood that Respondent will repeat the misconduct in the future.
In view of the foregoing factors, the Panel concludes the appropriate sanction for Respondent' s misconduct is a public reprimand, in accordance with M. Bar R. 7.1(e)(3)(C). Accordingly, it is hereby ORDERED that Jed Davis, Esq., shall be, and hereby is, reprimanded for his violations of Maine Bar Rules 3. 1(a) and.6(c).
For the Grievance Commission
Benjamin Townsend, Esquire, Chair
William E. Baghdoyan, Esquire
David Nyberg, Ph.D.
Footnotes
1 Respondent also provided copies of various professional ethics opinions, cases, and other interpretive guidance, marked Resp. Exh. 2-6, but did not move their admission. The Panel views those materials as providing assistance with legal conclusion, rather than as evidence on any disputed factual issues.
2At the hearing, both Bar Counsel and Respondent presented evidence as to the facts of the underlying right-of-way dispute. The Panel considered that evidence only to evaluate Respondent's state of mind and purpose in sending the letter.
3The Panel concluded that notwithstanding the reference to "a client of mine" (emphasis added), the letter did not imply any improper influence in violation of M. Bar R. 3.6(g).
Board of Overseers of the Bar v. Marsha Weeks Traill
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Docket No.: BAR 09-04
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 16, 2009
Respondent: Marsha Weeks Traill, Esquire
Bar Number: 002509
Order: Decision Affirmed
Disposition/Conduct:
Decision
Procedural History
On March 12, 2009. Respondent Marsha Weeks Traill filed a petition, pursuant to Maine Bar Rule 7.2(a), seeking review by a single Justice of the Law Court of a public reprimand imposed upon her on February 17, 2009, by Panel C of the Grievance Commission of the Maine Board of Overseers of the Bar. The public reprimand was issued upon a disciplinary petition submitted to the Grievance Commission July 8, 2008, and was the subject of a public testimonial hearing conducted on December 8, 2008.
The petition for review was assigned to the undersigned Justice of the Maine Supreme Judicial Court on March 16, 2009. Oral argument was held on October 6, 2009, in Portland and the matter was submitted for decision upon the existing record.
Facts
This Court's review is based upon the facts as found by the Grievance Commission Panel, all of which are supported in the record and none of which are clearly erroneous. Indeed, the parties do not challenge the Panel's findings on this review.
Marsha Weeks Traill is an attorney admitted to practice in the courts of the State of Maine. At all relevant times, she represented Mrs. J in a contentious divorce proceeding. Her husband, Mr. J, was represented by attorney Ray R. Pallas. Mrs. J suffers from bipolar and borderline personality disorders which are treated with prescription medications. Her mental health status was a central issue in the child custody aspect of the divorce proceeding.
As the date for a final contested hearing (April 12, 2006) drew close, the parties were engaged in seemingly promising settlement negotiations. On April 7, 2006, Mrs. J was admitted to the Spring Harbor mental health facility. Attorney Traill became aware of this admission on April 10, 2006, when members of Mrs. J's church reported this fact to her and advised that Mrs. J directed her not to disclose the fact of her hospitalization to Mr. J or his attorney.
Attorney Traill knew that Mr. J and his attorney would be very interested in her client's mental health status on the eve of the hearing date. She also knew that the disclosure of the hospitalization would likely sink the settlement negotiations and force the matter to a contentious trial. Given this concern, and her client's direction to avoid disclosing the fact, she was certainly conflicted by how she would answer questions regarding her client's mental health status.1
Attorney Pallas did inquire about Mrs. J's status in a telephone call on April 10 and at the courthouse on April 12. Although his questions were posed in rather vague terms,2 the import of the questions, as understood by both parties, was clear: What is the status of Mrs. J's mental health? Asked if there was anything to be concerned about, Attorney Traill answered something to the effect of: "Not that I am aware of." No mention was made of the in-patient hospitalization. Thus reassured, Attorney Pallas advised his client to proceed with the negotiated settlement, which involved shared parental rights and responsibilities and shared primary residence.3
Discussion
Attorney Traill argues that the Panel, in finding that she violated Maine Bar Rules 3.2(f)(3)--engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 3.2(f)(4)--engaging in conduct that is prejudicial to the administration of justice; and 3.1(a)--conduct unworthy of an attorney, effectively grafted a new obligation onto the rules that required her to violate Rule 3.6(h)-- maintaining client confidentiality.4 She argues that the Panel's ruling would have required her to disclose the fact of her client's hospitalization over the client's express direction not to do so.5
Attorney Traill is quite correct when she argues that an attorney has no duty to spontaneously disclose facts to opposing counsel that he or she knows the other attorney would like to know. Absent an order or legal obligation to disclose, parties are well within their rights to play their cards as close to the vest as they wish. Indeed, Rule 3.6(h) absolutely bars disclosure of client confidences unless authorized by one or more of the enumerated exceptions. In the absence of a valid discovery order or continuing duty to disclose, Attorney Traill had no obligation to respond to Attorney Pallas's inquiries.
The fact that Attorney Traill undertook to respond to the inquiry takes her out of the scope and protection of Rule 3.6(h). She simply could have, and arguably should have, declined to comment. When she did undertake to respond, Attorney Pallas was justified in believing that Attorney Traill was expressly not invoking any rule of confidentiality. He was entitled to believe that her answer would not be dishonest, fraudulent, deceitful, or otherwise misrepresentative. In fact, her answer, which avoided any mention of the obviously pivotal fact of the psychiatric hospitalization, was patently intended to misrepresent the gravity of the situation and keep the settlement viable.6 It was deceitful.
The Panel reached the same conclusion in similar language:
A determination of whether an attorney has fulfilled the obligations set forth in Rule 3.2(f)(3) should not depend on the parsing of words or a strained interpretation of precisely what was said. Attorney Traill knew that Mr. J would not go forward with the settlement agreement if he learned about his wife's hospitalization. While Attorney Traill may not have personally believed that the hospitalization was significant, she knew that her client's husband would have found it to be fundamentally important. By answering Attorney Pallas' question the way she did on April 12, 2006, Attorney Traill knew or should have known that she had provided Attorney Pallas and his client with a false sense of security which resulted in them moving forward with the settlement agreement without further inquiry.
When attorneys undertake to make affirmative statements in their capacity as attorneys, they are bound to do so within the parameters established by the rules. Attorneys are skilled in the use of language. While nothing prevents them from using those skills to argue and communicate effectively on behalf of their clients, there is no license for patently false statements or statements that employ strategic omissions to intentionally mislead. While those practices routinely occur in the rough-and-tumble world of the marketplace or human relations, they are beneath the dignity of the law.
Accordingly, as the Court finds no errors of fact or misapplication of law in the Panel's Report and Reprimand, it is hereby AFFIRMED.
For the Court
Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court
Footnotes
1Although the Panel's findings do not mention it, Attorney Traill advised her client that they would have to disclose the fact of the hospitalization if asked a direct question during the hearing.
2 Neither party to the conversations can recall the verbatim language, but both agree it was something along the lines of: ?Do we have anything to be concerned about?"
3Although the Panel's findings do not mention it, the verbatim record discloses that Mr. J discovered the fact of the hospitalization shortly thereafter when an insurance bill arrived. He immediately commenced proceedings in the divorce court to address his concerns.
4Bar Rule 3, abrogated and replaced by the Maine Rules of Professional Conduct (effective 8/1/09), was in effect at all relevant times.
5 Although the Panel's findings do not mention it, Mr. J requested discovery, including medical reports, regarding Mrs. J 's mental health during the course of the litigation. It is not clear on the existing record whether Mrs. J had a continuing duty to disclose her status pursuant to the discovery requests. Neither the parties nor the Panel have addressed this issue.
6Attorney Traill asserts that Attorney Pallas's inquiry was not sufficiently specific (i.e. he should have asked if Mrs. J had any recent hospitalizations) and she was entitled to withhold information based upon the inartful nature of the question. The Panel implicitly-and properly-rejected this argument.
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-08-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 6, 2009
Respondent: Seth T. Carey
Bar Number: 009970
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney
Decision and Order
On November 25, 2008 counsel agreed to waive any proceedings before the Grievance Commission and to stipulate to the filing of a disciplinary information with the Court concerning a grievance complaint that had been filed on October 8, 2008 by Anne Corbin against Seth Carey. That Waiver was approved by the Court's Order dated December 1, 2008. As a result, the Board of Overseers of the Bar initiated this attorney disciplinary action by the filing of an information on January 28, 2009. Based upon their discussions, the parties' counsel notified the Court that they had agreed to a proposed Order including stipulated findings and a sanction.
On this date, October 6, 2009, the parties appeared before the Court and presented that proposed Order for its consideration. At the hearing, the Board of Overseers was represented by Bar Counsel J. Scott Davis, and Mr. Carey was represented by Gerald F. Petruccelli, Esq. Ms. Corbin was present and provided an opportunity to comment about counsel's proposed Order.
Based upon a review of the factual allegations set forth in that underlying disciplinary information coupled with this Court's knowledge of the findings and conclusions as set forth in its Order of February 12, 2009, the Court deems it appropriate to adopt counsel's proposed submission as follows:
Findings of Fact
Although Mr. Carey currently remains suspended from practice under that February 12, 2009 Order, at all times relevant to this new action he was still an attorney in good standing admitted to and engaging in the practice of law in the State of Maine and therefore subject to the Maine Bar Rules.
Mr. Carey was admitted to the Maine bar in May 2006 and since that time until his suspension in 2009 had been engaged in private practice in Rumford.
On October 8, 2008 - the second and final day of Mr. Carey's disciplinary hearing which resulted in this Court's issuance of that February 2009 suspension order - Anne Corbin, an Assistant Professor of Criminal Justice at Thomas College in Waterville, filed a grievance complaint with the Board against Mr. Carey.
A brief friendship had developed between Ms. Corbin and Mr. Carey in the middle of September 2008. As a result, Mr. Carey was at her residence on October 4, 2008 and did then discuss certain issues that greatly bothered him in his then pending grievance matters, with the Court's disciplinary hearing scheduled to commence on October 7, 2008. Mr. Carey was experiencing considerable stress at that time. Ms. Corbin reported in her complaint and would testify that Mr. Carey became quite emotionally upset and angry such that he suddenly struck or grabbed Ms. Corbin?s German Shepherd puppy; that Ms. Corbin then asked Mr. Carey to leave, but he refused; that Mr. Carey never struck or harmed Ms. Corbin, but his sudden aggressive behavior did cause her to be wary of what she termed in her complaint as his "unhinged? behavior. Ms. Corbin also reported and would testify that due to his refusal to leave. Mr. Carey spent the evening at her residence while she was in a room away from him; that on the morning of October 5th Mr. Carey initially refused to leave and continued to behave in a manner causing Ms. Corbin to remain very concerned about his emotional angry outbursts; and that he did eventually comply with her request to leave. Ms. Corbin then very soon thereafter telephoned the office of the Board of Overseers of the Bar to "report" Mr. Carey's conduct, and then formally filed her grievance complaint with the Board on October 8, 2008.
Mr. Carey does not agree with all and denies certain of Ms. Corbin's descriptions of his attitude and behavior, but he does now agree and regret that a number of his comments and actions were improper and could have caused Ms. Corbin to become as upset and distraught as she described in her complaint. As such, he agrees that his conduct was unworthy of an attorney in violation of then applicable M. Bar R. 3.1(a).
Sanction
The events that are the subject of this proceeding occurred before the February 12, 2009 Order and just prior to the time of the hearing on the earlier disciplinary matters. Therefore, the Court will not impose any additional length of suspension or repeat the conditions and terms currently imposed and in place by the February 12, 2009 Order. Accordingly, the following sanction with conditions is now imposed upon Mr. Carey in this matter effective this date:
A concurrent 60-day suspension of practice is imposed upon Mr. Carey, retroactive to August 1, 2009;
Within 14 days of the date of this Order Mr. Carey shall meet with the Director of the Maine Assistance Program (MAP) as the latter deems necessary to determine what, if any, services Mr. Carey should receive or undertake either directly or indirectly through MAP. If requested by MAP's Director, Mr. Carey shall enter into a contract for services to be administered and monitored through the MAP program as reasonably required by its Director. If the Director and Mr. Carey should disagree as to the necessity of such a contract being executed by Mr. Carey, he may file his written objection with Bar Counsel for consideration and decision by the Chair of the Grievance Commission; Mr. Carey shall have no further contact or discussion of any kind with Anne Corbin, nor shall he direct, request or allow anyone else on his behalf to do so;
Mr. Carey's future contacts with the Board of Overseers' staff shall only be through his attorney, or if done pro se shall then involve only his discussion or correspondence with Bar Counsel Davis, the Board's Executive Director or its CLE Coordinator.
Bar Counsel shall have the discretion to file an additional disciplinary information, either directly with the Court or after receiving authority from the Grievance Commission to do so under M. Bar R. 7.1(d)(5), without needing to conduct any preliminary hearing under M. Bar R. 7.1(e) concerning any new complaint(s) of professional misconduct allegedly committed by Mr. Carey, regardless of the alleged date of the occurrence of that misconduct; and
Any apparent violation of the conditions of this Order shall be brought to the attention of the Court by Bar Counsel.
For the Court
Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. James P. Boone
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Docket No.: BAR-01-05
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 14, 2002
Respondent: James P. Bonne
Bar Number: 002443
Order: Suspension
Disposition/Conduct:
Findings, Conclusions and Order
This matter is before the Court on information by the Board of Overseers of the Bar, upon recommendation of a panel of the Grievance Commission, seeking discipline of Attorney James P. Boone. M. Bar. R. 7.2(b). The information was filed with the Court and duly served upon Mr. Boone. Mr. Boone did not file a timely response to the information, and the Board of Overseers has filed a motion for default judgment.
The pending matters were heard on May 6, 2002. At that time, counsel for the Board and Mr. Boone appeared. Based on the discussion with Bar Counsel and Mr. Boone at the hearing, it appears that the factual allegations asserted by Bar Counsel are largely undisputed except that it is agreed that issues regarding Mr. Boone's obligation towards Patrons Oxford Insurance Company have been resolved with payment acceptable to Patrons Oxford.
With this matter resolved, the only issue in dispute at hearing related to the appropriate sanction, with Bar Counsel urging disbarment and Mr. Boone urging an indefinite suspension.
The facts relative to the Court's determination in this proceeding are as follows:
Mr. Boone was admitted to practice approximately twenty years ago and, until 1999, maintained an active litigation practice in York County. Prior to this proceeding, Mr. Boone had not been subject to any bar disciplinary action.
In late 1996, Mr. Boone undertook to represent David Robert Mailhiot and Mailhiot's finance, Leslie Perkins in their respective bankruptcy matters. For this legal representation, Mr. Boone was paid approximately $1,600.
Mr. Boone took no action on the Mailhiot and Lewis matters for more than a year, while telling them that such matters take time.
During this same time, a severe illness of Mr. Boone's wife caused him to close his office and work out of his home and then to cease his practice entirely.
Eventually, sometime in 1998 or 1999, Mr. Boone relocated to a residence in Dixmont, Maine where he is required to spend substantial amount of time caring for his disabled wife. In addition, Mr. Boone performs some carpentry work, but no legal work, out of this residence.
Mr. Boone closed his practice and relocated to Dixmont without notifying Mr. Mailhiot and Ms. Lewis of his actions.
Mr. Mailhiot then took the bankruptcy issue into his own hands and worked out a payment arrangement.
Some of the fees which Mr. Boone originally charged have been reimbursed. However, on March 7, 2002, a fee arbitration panel ordered that Mr. Boone repay Mr. Mailhiot the remaining $675 owed as a result of Mr. Boone's taking a fee and then performing no work.
The Board of Overseers disciplinary action was initiated as a result t of a complaint by Mr. Mailhiot in the fall of 2001. After hearing before a Grievance Commission, the matter was referred to this Court for disciplinary action.
On October 25, 2001, Mr. Boone was suspended from the practice of law as a result of his failure to register with the Board of Overseers and pay the annual fee required by the Board of Overseers for continuation of practice in the State of Maine, M. Bar. R. 6(b) and 10(b).
Mr. Boone has not sought and does not plan to seek reinstatement at the present time or in the near future.
Based on Mr. Boone's actions in: (i) agreeing to undertake representation of clients; (ii) accepting fees from clients for the representation; (iii) failing to perform any of the requested legal work for the clients; (iv) misleading the clients with regard to the status of the work; (v) abandoning his practice without notice to the clients; (vi) failing to keep the clients' funds for the representation secure in a trust account; and (vii) failing to repay the clients after he had abandoned them without doing any work, the Court concludes that Mr. Boone has violated Bar Disciplinary Rules 3.1(a); 3.2(f)(3)(4); 3.3(a); 3.5(a)(2); 3.6(a)(2)(3); 3.6(e)(2)(ii); and 3.7(e)(l)(i).
Mr. Boone's conduct in undertaking to provide legal representation and then abandoning his clients is seriously inappropriate for a lawyer. His conduct in misleading his clients as to the status of their case and in failing to repay funds he took from them and for which he did no work is dishonest.
In considering the appropriate sanction, the Court recognizes that the misconduct found here is serious misconduct. However, it is apparently the only bar disciplinary action against Mr. Boone in a twenty year active litigation practice. Further Mr. Boone's misconduct did not result from desire for personal gain, did not result in any serious prejudice to his clients and, so far as appears from the record, is not part of a pattern of widespread misconduct affecting other clients. Instead, Mr. Boone's motivations in abandoning his practice largely focused on his desire to provide necessary full-time aid to a seriously ill spouse. Mr. Boone has come forward and acknowledged his errors in judgment and, at the present time, recognizes that his personal situation makes it unlikely that he will soon return to practice. In this circumstances, with the mitigating factors of Mr. Boone's conduct having been motivated by a desire to aid a seriously ill spouse and of his accepting responsibility for his misconduct and the problems it has caused and in light of his prior unblemished record in an active litigation practice, it appears that disbarment would be to severe a remedy. An indefinite suspension is, in itself, a substantial sanction. It provides continuing protection for the public from Mr. Boone while he may be indisposed to practice law and, at the same time, it can assure that Mr. Boone may only return to practice when he is desirous and able to provide full, active representation of clients.
Order
Therefore, based on the findings and conclusions stated above, James P. Boone's present suspension from the practice of law is made indefinite. Mr. Boone may be considered for reinstatement to the practice of law only after he has:
Repaid the $675 found to be due to Mr. Mailhiot by the Fee Arbitration Panel, provided that this repayment shall occur no later than May 1, 2003.
Paid all the fees and charges due to the Board of Overseers of the Bar, the Lawyers Fund for Client Protection and any other fees which are the obligation of lawyers engaging in active practice in the State of Maine:
Demonstrated to Bar Counsel that he is capable and desirous of resuming the active practice of law and that he is capable of serving his clients promptly and with all good fidelity as required by the Bar Rules; and
Demonstrated that for the first two years of return to active practice, Mr. Boone will either be associated in practice with another active Maine attorney acceptable to Bar Counsel or have his practice monitored by a Maine attorney acceptable to Bar Counsel, to assure that Mr. Boone properly complies with his obligations to his clients, the courts, and the profession.
For the Court
Hon. Donald G. Alexander, Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen M. Brett
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Docket No.: BAR-06-01
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 11, 2006
Respondent: Stephen M. Brett, Esquire
Bar Number: 009277
Order: Temporary Suspension
Disposition/Conduct:
Order
A telephonic conference with counsel was conducted this date concerning the Board of Overseers of the Bar's Petition for Temporary Suspension. Bar Counsel J. Scott Davis appeared for the Board, with Attorney Peter J. DeTroy appearing for Mr. Brett.
As a result and by agreement of counsel, it is hereby ORDERED as follows:
The Petition for Temporary Suspension is GRANTED effective May 26, 2006. As of that date, Stephen M. Brett, Maine Bar # 9277 is suspended from the practice of law in Maine.
The Court directs counsel to continue their efforts to prepare and present a proposed stipulated Order for the Court's consideration concerning final resolution of the grievance complaints pending against Mr. Brett.
Counsel shall present that proposed Order to the Court (or competing drafts) on or before June 14, 2006.
The Court sets a hearing date of June 20, 2006, at 9:30 A.M. at the Cumberland County Courthouse, Courtroom No. 13, for its consideration of any proposed Order, a hearing, or such other action as may be needed or relevant on those pending grievances.
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Thomas Acker
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Docket No.: BAR 90-15
Issued by: Supreme Judicial Court
Date: December 11, 1990
Respondent: Thomas Acker
Bar Number: 003381
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Paul L. Letourneau
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Docket No.: BAR-09-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 25, 2009
Respondent: Paul L. Letourneau
Bar Number: 009544
Order: Suspended Suspension
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Responsibilities Regarding Non-Lawyer Assistants
Decision and Order
Background
The Board of Overseers of the Bar initiated the above attorney disciplinary action on August 29, 2009, by the filing of a Petition for Temporary Suspension. Based upon their discussions at a subsequent pre-trial conference, the parties notified the Court that they had reached an agreement concerning a provisional order that would include stipulated findings and a portion of the sanction. On September 22, 2009, the parties appeared before the Court to outline their proposal and argue the issue of disciplinary sanction. At the hearing, Attorney Letourneau was represented by Timothy E. Zerillo, Esq., and the Board of Overseers was represented by Assistant Bar Counsel Aria eee.
Attorney Letourneau was admitted to the Maine Bar in December 2003. Since then, he has primarily worked as a solo practitioner with a concentration on criminal defense, family law, and some personal injury cases. Following a review of the parties' submissions and proposal and based on the stipulations reached for this proceeding, the Court finds that over the course of his time as a solo practitioner, Attorney Letourneau violated M. Bar Rules 3.6(a) and 3.13(c). Specifically, Attorney Letourneau's failure to adequately communicate with his clients and properly monitor their legal matters led to a general neglect of eight (8) clients who complained to the Board. Furthermore, Attorney Letourneau's failure to supervise his former legal assistant exacerbated the existing problems related to client communication, neglect of legal matters, and management of his law practice.
After argument by counsel, the Court imposes upon Attorney Letourneau a seven (7) month suspension, but suspends all of that period. Having had an opportunity to review the complaints filed by Attorney Letourneau's clients, and after hearing directly from Attorney Letourneau, the Court concludes that an entirely suspended suspension is appropriate at this stage of the proceedings. If the monitoring and support system now in place do not result in a dramatic improvement in Attorney Letourneau's communication with all of his clients and with his personal involvement in the management of his office, further sanctions may be imposed.
Moreover, after brief argument from the parties, the Court concludes that Attorney Letourneau's practice shall be limited to his criminal defense cases, with the exception of one divorce matter identified at the interim hearing, and some protective custody matters already in process. Attorney Letourneau may complete the divorce matter if his client wishes him to do so, but he shall seek to withdraw from the protective custody matters. If any of Attorney Letourneau's motions to withdraw are denied, he shall associate with competent counsel to assist him in completing those cases, and such counsel shall be approved by the Office of Bar Counsel. This limitation on Letourneau's practice includes his agreement to concentrate his efforts solely on the practice of law and shall continue until further order of this Court.
Additionally, Attorney Letourneau shall undergo weekly monitoring by Joseph Mekonis, Esq., who shall serve in that capacity until further order of the Court. The specific terms of Mr. Mekonis's monitoring shall be outlined by separate order of the Court and are incorporated into this Order by reference.
Within fourteen (14) days from the date of this Order, Attorney Letourneau shall also meet with the Director of the Maine Assistance Program (MAP) to determine what, if any, services or steps he should undertake in order to improve his management of his law practice. If requested by MAP, Attorney Letourneau shall enter into a contract for services to be administered and monitored through the MAP program.
Finally, Attorney Letourneau has agreed and is ordered to personally apologize to all of the complainants involved in this bar disciplinary proceeding. Attorney Letourneau shall inform his monitor and the Office of Bar Counsel upon his completion of those apologies.
In order to put in place the monitoring and other services, the parties stipulated to a determination that Attorney Letourneau violated certain provisions of the Maine Bar Rules and also stipulated that those violations would result in a suspension of Attorney Letourneau's license to practice law. Those stipulations, which appear in this Order, do not estop Attorney Letourneau from arguing that he did not violate the Bar Rules as described in this Order, if future contested hearings on this matter are held. Likewise, the stipulations do not estop the Board of Overseers from arguing additional findings or Bar Rule violations by Attorney Letourneau. If subsequent contested hearings occur, both parties may proceed with the presentation of evidence before this Court without the preclusive effect of collateral estoppel.
Finally, by agreement of the parties, and with permission from the Court, if, after the date of this Order, the Board receives any new complaints of professional misconduct allegedly committed by Attorney Letourneau, Bar Counsel may file an Information directly with the Court without any Grievance Commission review or hearing concerning those new complaints.
Accordingly, it is hereby ORDERED and ADJUDGED that Paul L. Letourneau, Esq. is suspended for a period of seven (7) months for his violations of Maine Bar Rules 3.6(a) and 3.13. However, all of this suspension is hereby suspended so long as Attorney Letourneau complies with the above-outlined conditions and engages in no further misconduct. Within six months from the date of this Order, the Court will schedule a final proceeding concerning all bar disciplinary matters now pending against Attorney Letourneau.
For the Court
Hon. Ellen A. Gorman, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen M. Brett
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Docket No.: GCF 04-324 & 05-090
Issued by: Grievance Commission
Date: January 25, 2006
Respondent: Stephen M. Brett
Bar Number: 009277
Order: Reprimand
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct before a Tribunal; Referral Solicitation; Confidentiality
Report of Findings and Determinations
This matter came before Panel B of the Grievance Commission on a Petition of Bar Counsel, alleging in three separate Counts that Respondent Stephen M. Brett, Esq. of York Beach, Maine violated each of the following Maine Bar Rules:
?3.1(a) - conduct "unworthy of an attorney"
?3.2(f)(1) - conduct violating the provisions of the Maine Bar Rules
?3.2(f)(3) - deceitful or dishonest conduct
?3.2(f)(4) - conduct prejudicial to the administration of justice
??3.6(h)(1)&(3) - revelation of confidential information
?3.6(h)(5) - failure to call upon a client to rectify fraud on tribunal
?3.7(e)(1)(i) - misrepresentation to a judge, jury or tribunal
?3.7(e)(2)(v) - asserting a personal opinion as to the guilt or innocence of an accused
?3.7(e)(2)(vi) - engaging in conduct degrading to a tribunal
?3.9(f)(2) - engaging in solicitation of employment
A public hearing was conducted on December 15, 2005 in Portland, Maine to determine whether a Bar Rule violation had occurred and whether probable cause exists for filing an information pursuant to Maine Bar Rule 7.2(b).
The Board of Overseers of the Bar ("the Board") was represented by Aria eee, Esq. Respondent Stephen M. Brett, Esq. was represented by Peter J. DeTroy III, Esq. No objection was made to the composition of the Panel. At the hearing the Panel admitted Board Exhibits 1 - 11 and 13, as well as Respondent's Exhibit 15, all without objection. The Panel also heard testimony of Mr. Brett, Officer Jamie Rooney, Officer Paul Pomeroy, Jeffrey H. Moskowitz, Esq. and Thomas F. Lonnquist. In addition, counsel stipulated as the nature of testimony which would have been given by an Officer Ciampi if he had attended the hearing. On the basis of this evidence, Panel B finds that Respondent Stephen M. Brett, Esq. did not violate Maine Bar Rules 3.6(h)(1) or (3) or 3. 7( e )(2)(v) as alleged, but did violate each of the other Maine Bar Rules listed above. For the reasons described in greater detail below, the Panel issues three separate public reprimands to Stephen M. Brett, Esq. for violations embodied in Counts I, II and III of the Petition.
Findings of Fact
Count I: First Complaint of Judge John D. Kennedy (File No. 04-324).
On August 20,2004, Judge Kennedy facilitated a judicially-assisted settlement conference between two parties and their respective counsel, one of whom was Attorney Brett. Following an initial session with parties and counsel in the courtroom, Judge Kennedy met with both counsel in his chambers, and then, in split sessions, invited the respective parties and their counsel to meet with him separately. The party and counsel not meeting with Judge Kennedy were generally expected to stay in the courtroom adjacent to the Judge's chambers, so the Court Officer could find them when the Judge wished to see them again. That day Attorney Brett had gotten up early, failed to get lunch, and then discovered that the settlement conference process would move slowly that afternoon.
Attorney Brett testified that after about 35 to 40 minutes of initial discussion and another 30 minutes or more with Judge Kennedy, he and his client found themselves back in the courtroom, alone, waiting patiently to be called back into the discussions. In the course of their wait, Mr. Brett admits he first entered the area behind the bench (an area adjacent to the door leading directly to the Judge's chambers) to retrieve fresh water for his client and dispose of some trash. Mr. Brett also admits that somewhere between 2:30 and 3:00 PM, becoming overcome by hunger, he entered the area again with the express intent to eavesdrop on the Judge's discussions to attempt to ascertain how much longer they might need to wait. He states he could not actually translate the mumbled conversation coming from chambers. Neither Mr. Brett nor his client made any effort that afternoon to contact the Court Officer or the Clerk's office to explain their desire to leave the courtroom, even momentarily.
Court Security Officer Paul Pomeroy saw things somewhat differently. At approximately 3:00 PM, after he had closed another courtroom, he went looking for the Court Security Officer assigned to Judge Kennedy. His search began by peeking through that courtroom's entrance door window. Officer Pomeroy reports he observed Attorney Brett, whom he recognized, standing behind the Judge's bench, an uncommon event in his experience. Officer Pomeroy testified that he then saw Mr. Brett speak to a person he assumed to be Mr. Brett's client, who was on the other side of the bench. According to Officer Pomeroy, Mr. Brett next appeared to lean back to within two feet of the Judge's chambers door and cock his head, obviously eavesdropping. Rather than enter the courtroom immediately however, Officer Pomeroy continued to observe Mr. Brett for "a minute or two," although the actual time he spent in further observation remains debatable. At some point the Officer retreated from the courtroom door and spent "twenty seconds or so" entering a secure hallway alongside the courtroom and speaking with Judge Kennedy's Security Officer. He then claims to have observed Mr. Brett a second time, this time through another window between the hallway and the courtroom. In Officer Pomeroy's opinion, Attorney Brett was still engaged in eavesdropping at that time. The Officer then entered the courtroom directly from the hallway, and Mr. Brett left the area behind the bench.
Stephen Brett admits to eavesdropping, asserts it was nevertheless entirely innocent, and confesses in retrospect to exercising poor judgment, compounded by the fact he could not actually determine whether the settlement discussions were "winding down" in any event. Officer Pomeroy added that 1) logistically one would not need to enter the bench area to obtain water or dispose of trash, and 2) it is possible, in his opinion, to hear conversations clearly through the Judge's door, which is what, he maintains, Mr. Brett was doing. Panel B finds that eavesdropping by Attorney Brett, for whatever purpose, did occur for an undetermined length of time.
Count II: Second Complaint of Judge John D. Kennedy (File No. 04-324).
Judge Kennedy also passed along allegations he had heard that Attorney Stephen M. Brett had solicited business from a Town of York Police Officer. Further investigation by the Board and testimony of Officer Jamie A. Rooney (f/k/a Jamie A. Dodge) appears to confirm such an offer occurred. During the Winter of 2003 - 2004, Ms. Rooney took a bicycle "spinning" class at a facility in Portsmouth, New Hampshire known as Spinnaker Point. Although her preferred spinning instructor was a Tom Lonnquist, Mr. Lonnquist began sharing his instructor duties with his friend, Mr. Brett, during that Winter. Officer Rooney, Tom Lonnquist and Stephen Brett apparently all agree that Ms. Rooney and Mr. Brett each probably became aware of the other's occupation through Mr. Lonnquist, and likely through the class' "exercise chatter." But Officer Rooney testified that following one particular morning spinning session lead by Mr. Brett, he approached her to explain that he was building a house in York and, in fact, was already living in it. He went on to explain that he had just started out on his own and certainly could use more clients. It was then, according to Officer Rooney, that Mr. Brett made an explicit offer that she take his business cards and hand them out to her "arrestees." For each person who eventually retained Mr. Brett, he proposed to pay her $50.00. Mr. Brett then went on to regret he had no business cards to give her that day. Officer Rooney described her reaction as "being uncomfortable," although she did nothing in response to the proposal other than avoid Mr. Brett's classes in the future and then tell her fianc? about the incident.
Mr. Brett asserts the solicitation event never happened, and, along with Mr. Lonnquist, suggests Officer Rooney more likely remembers another "exercise chatter" discussion in which Mr. Lonnquist quipped that Mr. Brett should pay Officer Rooney for referrals. But Officer Rooney remains adamant that although a second referral discussion did occur, that event took place weeks later. She states the second "business referral" suggestion still made her uncomfortable, but concedes it was more clearly made entirely in jest by Mr. Lonnquist. As a young officer, she understandably was unprepared for such an unusual offer and now admits to being even somewhat disoriented in her response. To avoid being confronted with such offers again, Officer Rooney stopped attending the spinning classes entirely, until recently.
Panel B finds Officer Jamie Rooney's testimony credible. No obvious reason exists for her to embellish her story. In fact, when Officer Rooney revealed the original solicitation to her fianc?, he reported it to the York Police Department, which precipitated a regrettable, informal investigation into the matter by her superior officers. Panel B believes Ms. Rooney had every reason to minimize the first solicitation event under the circumstances, but nevertheless treated the conversation with Mr. Brett as a serious offer soliciting clients in return for cash.
Count III: Complaint of Jeffrey Moskowitz, Esq. (File No. 05-90).
The final Petition Count stems from Mr. Brett's representation of the defendant in the matter of State v. Keith Armstrong in a York County Superior Court criminal jury trial. Mr. Armstrong was alleged to have operated a motor vehicle while having a blood-alcohol level of .15 on June 16, 2004. Mr. Armstrong met Mr. Brett at the Biddeford District Court and asked that he be made his court appointed attorney. On September 28, 2004, after having spoken to Mr. Brett for only "approximately 15 - 20 minutes," the defendant and Mr. Brett appeared at the Bureau of Motor Vehicles Office in Kennebunk, Maine for Mr. Armstrong's administrative license suspension hearing. No one disputes that, at that hearing, Mr. Armstrong testified he had driven to a 7-Eleven Store, parked the car, walked to a nearby bar to have some drinks, and, when he returned to his car, he was arrested. In other words, he maintained that he had been drinking but that he had not been driving. Not surprisingly, the defendant's story differed from that of the arresting officer, an Officer Ciampi, who testified at the trial that he witnessed Mr. Armstrong driving while intoxicated.
During later plea negotiations with the Assistant District Attorney, Jeffrey H. Moskowitz, Esq., Mr. Brett explained that he expected his client to testify that he had not been driving. Mr. Moskowitz responded that if, in fact, that testimony would be presented, and he obtained a conviction, he would seek a harsher sentence because he believed the defendant would be lying under oath. Mr. Brett made no response, and continued to prepare for what would be his first jury trial. To make trial preparation somewhat more difficult for Mr. Brett, a few weeks prior to the trial Mr. Armstrong spent some time in a psychiatric ward. Mr. Brett complained that it became difficult to keep Mr. Armstrong focused. It is easy to see Mr. Armstrong may not have made a model client.
On January 24th, Mr. Armstrong did take the stand in his own defense as expected, but what he had to say caught at least the prosecuting attorney off guard. Under direct examination by Mr. Brett and again under cross examination, Mr. Armstrong insisted, under oath, that he had been very sick on June 16th, had had nothing alcoholic to drink that day, and had driven from his home to a 7-Eleven Store to buy cough medicine and cigarettes. Mr. Armstrong's story ends with the arresting officer stopping him at the store and later establishing a .15 blood-alcohol level.
Mr. Brett explained to the Panel at one point that he was "dumbfounded" by his client's testimony of no drinking and "didn't know what to do." But later he also insisted that he had not made any notes at the BMV hearing and did not recollect his client's previous testimony. In either case, the transcript of Mr. Armstrong's testimony, and specifically Mr. Brett's questioning of him, suggests strongly that Mr. Brett was aware of the story about to be told, a story on which Mr. Brett continued to rely obliquely in his closing argument to the jury. All parties agree that Mr. Brett did not request a sidebar or act in any other way during the trial to attempt to rectify his client's testimony. Despite Mr. Armstrong's testimony, the jury returned a guilty verdict, and true to his word, Mr. Moskowitz sought a slightly more caustic sentence. The presiding Justice ultimately imposed a much more rigorous sentence, noting in doing so that both he and the jury felt the defendant had lied.
After the trial, Defendant's testimony continued to bother both the arresting officer and Mr. Moskowitz, who obtained the Bureau of Motor Vehicles suspension hearing tape to compare the Armstrong testimony in both hearings and to also confirm Mr. Brett was in attendance at that earlier hearing. The result is the present complaint against Mr. Brett for allowing his client to materially deviate from his known, sworn testimony, effectively allowing a falsehood to be submitted to the Court.
Discussion
Stephen M. Brett, Esq. is alleged to have violated Maine Bar Rules in the course of his eavesdropping, business solicitation, and courtroom behavior. We chose to examine each matter independently.
Panel B views Mr. Brett's admitted eavesdropping as a deplorable and lamentable exercise of unsatisfactory judgment. We find no difficulty characterizing listening in on conversations behind closed doors, and particularly conversations between the opposing party and a Judge, as conduct 1) "unworthy of an attorney," 2) prejudicial to the administration of justice, and 3) degrading to a tribunal. In short, it is hard to imagine eavesdropping as the preferred course of action in any litigated matter, particularly since there were other avenues available to Mr. Brett to determine whether he could step out to find lunch. Moreover, we believe that, in the context of judicially assisted settlement discussions, an improper advantage could be achieved by listening in on the other party's discussions with the Judge. It is apparent to this Panel, in this instance, that Mr. Brett could have no logical or innocent reason to loiter behind the bench, near the Judge's chamber's door, other than to attempt to hear what was being said by his opponent. If it is true, as asserted by Mr. Brett, that one cannot discern the actual dialogue behind that door, then certainly no justification exists for remaining in that location more than a mere few seconds.
Panel B also views Mr. Brett's solicitation of business, whether light-hearted or deliberate, as serious lawyer misconduct. Maine Bar Rule ?3.9(f)(2) expressly prohibits engaging in solicitation of employment or giving anything of value to recommend employment by a client or as a reward for having made the recommendation resulting in employment by a client. As observed above, Panel B elects to believe the Town of York Police Officer's recollection of events surrounding Mr. Brett's offer to pay her for client referrals. The terms of Mr. Brett's business proposal could not have been more straightforward to Officer Rooney. She was to pass out Mr. Brett's business cards to solicit work for him, and in return would receive $50 for each successful referral. Such an explicit offer, even made in jest, would cause a reasonable person to conclude he or she may be receiving an actual business proposition. Mr. Brett's offer, coupled with his description of his current financial need at the time, causes this Panel to conclude that Mr. Brett violated Maine Bar Rule ?3.9(f)(2) prohibiting solicitation of employment. Panel B also chooses to find that the foregoing solicitation conduct is also a violation of Maine Bar Rule ?3.1(a), conduct "unworthy of an attorney," and Maine Bar Rule ?3.2(f)(1), conduct violating the provisions of the Maine Bar Rules.
Lastly, Mr. Brett's failure to take corrective action during his client's trial violates Maine Bar Rule ?3.6(h)(5). That particular Bar Rule compels each Maine lawyer, when he or she "receives information clearly establishing that a client ... has, during the representation, perpetrated a fraud upon any ... tribunal" to call upon the client to rectify the fraud on that tribunal. The Court in Board of Overseers v. Dineen, 481 A.2d 499 (Me. 1984), also observed:
A lawyer practicing before the Maine bar enjoys a privileged status. Upon entering the profession that lawyer takes an oath to "do no falsehood nor consent to the doing of any in court," 4 M.R.S.A. ?806 (1979). While the lawyer has a duty to act zealously on his client's behalf, that duty is subject to ethical limitations which the lawyer may ignore at his peril. Among these is the "affirmative obligation to inform the court of the falsity of the client's assertions." State v. Gilcott, 420 A. 2d 1238, 1240 (Me. 1980).
Id. at 503-504,
Panel B concludes that Attorney Stephen M. Brett was, or should have been, aware of his client's divergent, sworn testimony during his OUI and BMV hearings. Although Respondent's counsel correctly points out that Mr. Brett had no previous jury trial experience, Mr. Brett's very unfamiliarity with the process would suggest that he had committed the likely testimony of the trial's only two witnesses (the arresting officer and the defendant) to memory. In this Panel's view, Mr. Brett's response should have been obvious. Except where the information is protected (not the present circumstances), one must use the first opportunity to reveal the fraud to the tribunal, i.e. utilize a sidebar during the jury trial to explain your quandary and ask to be given the opportunity to rectify the fraud. No such effort was made by Mr. Brett.
Determinations
In the event the Panel concludes lawyer misconduct subject to sanction under the Maine Bar Rules has occurred, Maine Bar Rule 7.1 (e)(3) requires this Panel either to issue a dismissal with a warning or issue a public reprimand or a finding of probable cause for suspension or disbarment and direct Bar Counsel to commence an attorney disciplinary action by filing an information pursuant to Maine Bar Rule 7.2(b). This Panel finds that misconduct by Stephen M. Brett, Esq., subject to sanction under the Maine Bar Rules, has occurred in each matter before us.
A. The Panel finds Mr. Brett's courtroom eavesdropping violated Maine Bar Rules ?3.1 (a), ?3.2(f)(1), ?3.2(f)(4) and ?3.7(e)(2)(vi), and represents more than a minor departure from acceptable lawyer conduct The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a public reprimand.
B. The Panel also finds that Mr. Brett's solicitation of business referrals from Officer Jamie A. Rooney (f/k/a Jamie A. Dodge) is a conspicuous and distressing violation of Maine Bar Rule ?3.9(f)(2). The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a second public reprimand.
C. Lastly, the Panel finds that Mr. Brett's failure to rectify a fraud upon a tribunal to be a violation of Maine Bar Rules ??3.1(a), 3.2(f)(1), 3.2(f)(3), 3.2(f)(4), 3.6(h)(5), 3. 7(e)(1)(i) and 3.7(e)(2)(vi). This conduct represents a serious transgression of acceptable behavior during a trial. The appropriate sanction is that Stephen M. Brett, Esq. be and hereby is issued a third public reprimand.
For the Grievance Commission
David R. Weiss, Chair Panel B
John H. Rich III
Susannah White
Board of Overseers of the Bar v. Stephen M. Brett
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Docket No.: BAR-06-01
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 20, 2006
Respondent: Stephen M. Brett
Bar Number: 09277
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Conduct Prejudicial to the Administration of Justice; Neglect; Communicating with Adverse Party
Order
This matter came before the Court on June 20, 2006 pursuant to the Court's Order of May 11, 2006. The Board of Overseers of the Bar (the Board) was represented by Bar Counsel J. Scott Davis. Defendant Stephen M. Brett was present and represented by Attorney Peter J. DeTroy. Most of the various complainants have generally been made aware of counsel's stipulated proposed order, were invited to be present, but did not appear. The Court received two written statements from police officers involved in the criminal matters pending in the Cumberland County Superior Court. These statements will be made part of the record in this matter.
Stipulations
The parties have stipulated to the following material facts now found and adopted by the Court:
Stephen M. Brett has been licensed to practice law in Maine since 2001. His practice has generally focused on criminal defense and civil litigation. Mr. Brett has accepted numerous court appointments and maintained a smaller base of retained clients. Five years into his practice, Mr. Brett received three separate reprimands by a Grievance Commission hearing panel's decision dated January 25, 2006. That Grievance Commission hearing panel made the following findings:
"Panel B views Mr. Brett's admitted eavesdropping as a deplorable and lamentable exercise of unsatisfactory judgment. We find no difficulty characterizing listening in on conversations behind closed doors, and particularly conversations between the opposing party and a Judge, as conduct 1) unworthy of an attorney, 2) prejudicial to the administration of justice, and 3) degrading to a tribunal."
The Panel further determined that the balance of Attorney Brett's conduct as outlined in the decision amounted to "serious lawyer misconduct".
Approximately one month after those reprimands had been issued, on or about February 20, 2006 Cumberland County District Attorney Stephanie Anderson filed a grievance complaint with the Board against Mr. Brett which is now the subject of a pending criminal complaint to which he has entered a plea of not guilty. Ms. Anderson's complaint and the supporting statements therein detailed Mr. Brett's alleged violation of a client's conditions of release. Specifically, on or about February 20, 2006, Mr. Brett was charged with violation of those conditions because of his role in providing his then client with access to the client's victim/partner, which was in violation of a District Court order. Although Mr. Brett disputes the State's complete version of those events, he agrees a finding that he engaged in misconduct under the Bar Rules is warranted.
On or about April 25, 2006, Mr. Brett was arrested and again charged with new violations of the Maine Criminal Code (theft) based upon his alleged request and receipt of money from a client whom he had been court-appointed to represent on her criminal charge. District Attorney Anderson once again notified the Board of those new pending charges against Mr. Brett. He again pled not guilty and that criminal matter(s) remains pending against him.
During the time period between Mr. Brett's two arrests, other grievance complaints were filed against him. One of those complaints involved Mr. Brett's handling of his client's (Jeffrey Brisset's) arraignment in the Biddeford District Court. Although the District Court issued proper notice to Mr. Brett of the scheduled arraignment date for his client, neither Mr. Brett nor Mr. Brisset (who was already incarcerated in another county jail but had not been notified or arranged to be present by execution of a writ of habeas corpus) appeared at the initial arraignment. Due to Mr. Brisset's non-appearance, the court forfeited the bail money that his parents (complainants Ernie and Donna Hamel) had posted on their son's behalf. The District Court later vacated that default and returned the forfeited bail money to Mr. and Mrs. Hamel.
In his response to the Board concerning the Hamels' grievance complaint, Mr. Brett was less than completely candid when he wrote that the District Court failed to provide the necessary notice to him. Assistant Bar Counsel investigated that complaint and on March 27, 2006, a Grievance Commission review panel found probable cause to believe that concerning both his neglect of Mr. Brisset's arraignment and the inaccuracy of his written response to the Board, Mr. Brett had committed misconduct subject to sanction under the Maine Bar Rules.
A subsequent grievance revealed that Mr. Brett also exhibited poor judgment and a lack of impulse control during his interactions with another complainant, Tracy D. At the time they met, Ms. D was the former partner of Mr. Brett's then client, Taylor S. On more than one occasion, Ms. D had been assaulted by Mr. S. In order to discuss whether she intended to testify against Mr. S.; Mr. Brett repeatedly contacted Ms. D, who met with him to discuss the case. After Mr. S's case was resolved, the two met socially on a few occasions as friends, and subsequently Mr. Brett attempted to initiate a romantic relationship with her. Ms. D, however, became uncomfortable with those interactions and ceased contact with Mr. Brett. Mr. Brett, however, persisted trying to reinitiate contact with her. Despite her non-response, he requested to see her again by mailing or hand-delivering two letters. Ms. D did not respond to his correspondence, and changed her residence, cancelled her cell phone and changed her email address. Ms. D. then complained to the Board about Mr. Brett's actions.
All of the above-outlined investigations culminated in the Board's expedited filing of a "Petition for Temporary Suspension". On May 11, 2006, counsel for both parties appeared before this Court by teleconference and agreed to a resolution of the Board's Petition. Later that day, this Court issued an order temporarily suspending Mr. Brett, effective May 26, 2006, from the further practice of law in Maine.
Just prior to the issuance of that order of temporary suspension, (on May 10, 2006) the Board received a new complaint from an opposing party concerning Mr. Brett's conduct between September 2004 and August 2005 when he allegedly mishandled a mechanics lien action, including having direct contact with the opposing party without the consent of that party's attorney. Mr. Brett now agrees he should not have acted as he did in that matter.
On May 12, 2006 the Maine Law Court issued its Per Curiam decision in the matter of Hayden v. Orfe 2006 ME 56 finding among other things that "the appeal is interlocutory and must be dismissed." Mr. Brett served as Appellant Orfes' attorney. In its decision, the Court imposed sanctions upon Mr. Brett's clients because the " ... appeal (was) obviously without any merit and (had) been taken with no reasonable likelihood of prevailing ... " The Law Court also found that Mr. Brett had stated inconsistent positions at oral argument concerning the facts as they related to the "notice" issue and he was also undecided about those facts. In that opinion, Mr. Brett's clients were assessed sanctions of "treble costs and reasonable attorney fees in the amount of $1000.00".
As recently as June 12 and 13, 2006, the Board received an audio recording of Mr. Brett and a written complaint that confirmed that on June 12th Mr. Brett still acted and spoke in such a manner as to cause a recent former client, and/or his power of attorney, to believe Mr. Brett was still serving as his lawyer or was at least providing some informal legal assistance concerning an appellate matter. The Court hereby stresses that during his suspension from practice, Mr. Brett must completely abstain from providing any advice, assistance or counseling of any kind to anyone.
Taken in their totality, these continuing new allegations against Mr. Brett are serious and disturbing. Mr. Brett acknowledges collectively these allegations exhibit impulsivity, serious lapses of judgment and serious professional misconduct by him. Mr. Brett further agrees that it is necessary and appropriate for him to discontinue his practice of law for an indefinite amount of time.
It is apparent that this misconduct all occurred after Mr. Brett became a solo practitioner without any officer support in 2004 and then became financially unable to pay for health insurance. Based upon that lack of insurance, he could not afford to pay for medical care or medications essential for his mental health functioning and his ability to make reasoned decisions.
While he accepts responsibility for his behavior, Mr. Brett has asserted that he intended no harm and believed that he was justified in his actions. Regardless of Mr. Brett's intent, his actions and inactions referenced above all resulted in various violations of the rules of criminal and civil procedure and the Code of Professional Responsibility. Mr. Brett's misconduct and poor judgment provide the rationale for this Court to protect the public by providing that (at a minimum) Mr. Brett's current suspension from the practice of law remain in effect until further order of this Court.
Conclusions of Law
The parties agree and the Court so finds that Attorney Brett's conduct violated Maine Bar Rules 3.1 (a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct subverting any provision of the Maine Bar Rules); 3.2(f)(3)( conduct involving dishonesty, fraud, deceit or misrepresentation); 3.2(f)(4)(conduct prejudicial to the administration of justice); 3.6(a)(3)(neglect of a client's matter); and 3.6(f)(communicating with adverse party).
Sanction
In light of Mr. Brett's many violations of the Maine Bar Rules, the Court must now consider an appropriate sanction.
Recognizing that the primary purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:
Stephen M. Brett remains suspended from the practice of law until further order of the Court and must proceed pursuant to M. Bar R. 7.3(j)(reinstatement) prior to being readmitted to practice;
Within 30 days of this Order, Mr. Brett shall arrange to meet with the Director of the Maine Assistance Program for Lawyers and Judges (MAP) and enter into a contractual relationship with MAP that shall be incorporated by reference in this order. All conditions contained within the contract shall be completed to the satisfaction of and as directed by the Director of MAP;
Prior to seeking reinstatement to practice under M. Bar R. 7.3(j), Mr. Brett shall be and remain in compliance with the MAP contract and shall undergo a forensic evaluation by such clinical psychologist as directed by Bar Counsel.
Prior to filing any such petition for reinstatement, Mr. Brett shall obtain malpractice insurance coverage in an amount satisfactory to the Board as confirmed by Bar Counsel.
Within 90 days of this Order, Mr. Brett shall ensure that all of the sanctions imposed by the Law Court in Hayden v. Orfe have been paid as required;
In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Mr. Brett, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1 (d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b) instead of before the Grievance Commission under M. Bar R. 7.1(e);
Any apparent violation of any of the conditions of this Order shall be filed by Bar Counsel directly with the Court; and
On or before June 30, 2006, Mr. Brett shall comply with all the provisions and requirements of Maine Bar Rule 7.3(i)(1)(A), (B) and (C).
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Bronson Platner
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Docket No.: GCF 07-056
Issued by: Grievance Commission
Date: March 28, 2008
Respondent: Bronson Platner
Bar Number: 000885
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment
Stipulated Report of Findings and Sanction Order
M. Bar R. 7.1(e)(3)(C)
M. Bar R. 7.1(e)(4)
On March 28, 2008, after due notice, Panel B of the Grievance Commission, pursuant to Maine Bar Rule 7.1 (e)(2)(E), reviewed and approved this agreed sanction order concerning misconduct by the Respondent, Bronson Platner, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on January 9, 2008.
The Board was represented by Bar Counsel J. Scott Davis, and Attorney Platner was represented by Attorney James M. Bowie. The complainant, Shane K. Campbell, had been provided with a copy of this Report (in its proposal form), and stated to Bar Counsel Davis that he agreed with it.
Having reviewed the agreed proposed findings as presented by counsel, the Panel hereby finds the facts and imposes the disposition as follows:
Findings
Petitioner is the Board of Overseers of the Bar (the Board).
Respondent Bronson Platner (Attorney Platner) of Ellsworth, County of Hancock, State of Maine is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
In the summer of 2005 Attorney Platner represented Shane Campbell in his bankruptcy matter. During the course of that representation, Attorney Platner had advised Campbell concerning how to handle a $4,000.00 debt he had been ordered by the Farmington District Court to pay to his former wife, Janis Walker Campbell, regarding her attorney fees from their January 2005 divorce.
In Campbell's bankruptcy filing with the U.S. Bankruptcy Court at Bangor, Maine, Attorney Platner omitted a correct listing of the amount the Farmington District Court had ordered Campbell to pay, i.e. he was "... responsible for contributing $4,000.00 towards (Janis Walker Campbell's) legal fees and guardian ad litem costs... until paid in full ... " (Section 25 of the Campbells' divorce judgment of January 25, 2005.)
Attorney Platner agrees that he had advised Campbell that if he listed that $4,000.00 debt in his bankruptcy filing as a debt owed to his former wife and she then objected to discharge of that debt, then it would be a non-dischargeable debt. Attorney Platner then (incorrectly) believed that discharge of that court-ordered $4,000 debt would likely occur if it was instead described and stated in that bankruptcy filing as being owed by Campbell to his former wife's attorney. Attorney Platner now agrees that such legal advice was an incorrect interpretation of bankruptcy law.
As a result of Attorney Platner's incorrect advice and filing action in the U.S. Bankruptcy Court, Campbell's $4,000.00 court-ordered obligation and debt to Janis Walker Campbell was not discharged.
However, Campbell thought that debt had been discharged and he therefore did not make any payments to his former spouse after filing bankruptcy.
For a number of reasons which included Campbell's non-payment of that $4,000.00 debt, by order dated March 13,2006 he was found in contempt by the Farmington District Court (McElwee, J.), with that court specifically finding that "... since there is no evidence that plaintiff (Shane Campbell) listed defendant (Janis Walker Campbell) as a creditor, nor has he been discharged of the obligation to defendant, section 25 of the divorce judgment remains in full force and effect" (page 2, footnote 1 of that order).
Campbell then incurred additional interest and attorney fee amounts totaling approximately $1,850.00.
Attorney Platner agrees and admits that the spousal debt in question as owed by Campbell was not dischargeable under the Bankruptcy Code, and also admits that his failure to list the debt on Campbell's Schedule F meant that a debt owed to a person not listed on the schedule was not discharged even if it were otherwise dischargeable.
Attorney Platner concedes that due to the phrasing of the divorce judgment the debt, although ultimately inuring to the benefit of Attorney Laskoff, was in fact a debt owed by Campbell to his former spouse.
As a result, Attorney Platner agrees he engaged in professional misconduct involving his failure to use reasonable care and skill and his best judgment by giving improper legal advice to Campbell, in violation of Maine Bar Rule 3.6(a)(1).
Conclusion and Sanction
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Platner agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes. Attorney Platner has no history of discipline and the Panel finds that it is unlikely he will repeat the same behavior in the future.
By signature of his counsel, Attorney Platner hereby waives the right to a hearing under Maine Bar Rule 7.1(e) and also waives the right to file a petition for review under Maine Bar Rule 7.2(a).
Therefore, the Panel accepts the agreement of the parties, and concludes that the appropriate disposition of this case is to now hereby impose a reprimand upon Attorney Bronson Platner as provided by M. Bar R. 7. 1(e)(3)(C).
For the Parties
J. Scott Davis, Bar Counsel
James M. Bowie for Bronson Platner, Esq.
For the Grievance Commission
John R. Bass II, Esq., Panel B Chair
Board of Overseers of the Bar v. Stephen C. Whiting
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Docket No.: GCF 08-396
Issued by: Grievance Commission
Date: September 17, 2009
Respondent: Stephen C. Whiting, Esquire
Bar Number: 000559
Order: Reprimand
Disposition/Conduct: Conflict of Interest; Conduct Prejudiical to Admin. of Justice
Stipulated Report of Findings and Order of Panel B of the Grievance Commission M. Bar R. 7.1(e)(4), M. Bar R. 7.1(e)(2)
On September 7, 2009, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(c)(2)(E), concerning misconduct by the Respondent, Stephen C. Whiting, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 29, 2009.
At the hearing, Attorney Whiting was represented by James M. Bowie, Esq., and the Board was represented by Assistant Bar Counsel Aria Eee. The complainant, Bernard J. Broder III, Esq. was present and participated in the disciplinary hearing. Prior to the hearing, the parties had submitted a proposed, stipulated Report of Findings and Order for this Grievance Commission Panel's review and consideration.
Having reviewed the proposed Report as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Stephen C. Whiting (Whiting) of Portland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Whiting was admitted to the Maine bar in 1978 and he is currently registered with the Board of Overseers of the Bar as an active Maine Attorney.
On November 3, 2008, pursuant to his obligation as a mandated reporter, Attorney Broder filed a grievance complaint against Attorney Whiting. The complaint alleged Attorney Whiting's violations of the Code of Professional Responsibility due to his failure to appropriately protect the interests of his clients.
By way of background, the underlying legal matter concerned a real estate transaction involving Attorney Whiting's then clients, Mr. and Mrs. Proulx. The Proulx contacted Whiting to facilitate a conveyance of Seashore Motor Lodge Motels (Seashore), an ocean front property in Old Orchard Beach, ME. At that time, Seashore was owned by Proulx Real Estate Investment Company, LLC, a limited liability company owned by Mrs. Proulx and the Gerald A. Proulx Irrevocable Trust, an entity wherein Mr. and Mrs. Proulx serve as the Trustees. The conveyance to Mr. Proulx's step-son, Armand Vachon (Vachon), was designed to allow the stepson Vachon to obtain a mortgage loan on the property.
While Mr. Proulx expressed to Whiting his intention to sell the property to Vachon, Mrs. Proulx sought to outright gift the property to her son. Given the divergent goals of Mr. and Mrs. Proulx, Whiting should have conducted a conflict analysis to determine whether he could adequately protect each client's interest in the proposed transaction. In that regard Whiting should have reviewed the apparent conflict with the Proulx and thereafter sought each client's informed, written consent to the concurrent conflict of interest. His failure to undertake such measures constituted a violation of M. Bar R. 3.4(c).
Likewise, Whiting's failure to review with the Proulx and appropriately advise them of their duties as fiduciaries to the Irrevocable Trust, only served to exacerbate the conflict problem inherent in the real estate conveyance. Additionally, the manner in which Whiting carried out the transaction resulted in conduct prejudicial to the administration of justice. See M. Bar R. 3.4(c)(2); and 3.2(f)(4).
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Whiting's above-outlined failures, his clients were not made aware that they could have separate representation. The property was subsequently conveyed as a gift by the LLC to Vachon.
The Panel notes that Attorney Whiting has taken responsibility for his actions and he expressed remorse for his violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Whiting agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Whiting's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Stephen C. Whiting, Esq. which is now hereby issued and imposed pursuant to M. Bar R. 7.1(e)(3)(C),(4).
For the Parties
Aria Eee, Assistant Bar Counsel
Stephen C. Whiting, Esq.
For the Grievance Commission
Maurice A. Libner, Esq.
Ann M. Courtney, Esq.
Susannah White
Board of Overseers of the Bar v. Erika L. Frank
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Docket No.: GCF 07-095 & 09-003
Issued by: Grievance Commission
Date: July 28, 2009
Respondent: Erika L. Frank, Esq.
Bar Number: 008326
Order: Reprimand
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Competency; Conflict of Interest: Simultaneous Representation
Stipulated Report of Findings and Order of Panel E of the Grievance Commission M. Bar. R. 7.1(3)(2)(4)
On July 28, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent. Erika M. Frank, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 4, 2008. Additionally, on March 18, 2009 the Board filed a second Disciplinary Petition which was stipulated to by the parties. By agreement, the two Petitions were consolidated for this public disciplinary hearing before Panel E of the Commission.
At the hearing, James Bowie, Esq. appeared on behalf of his client, Erika Frank, Esq., and the Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction for the Grievance Commission Panel?s review and consideration. The complainant, Martica Douglas, Esq., though not present for the hearing, was provided with a copy of the Report (in its proposal form) and did not object to the parties' proposal. Having reviewed the proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Attorney Erika M. Frank (Frank) of Windham, County of Cumberland, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Frank was admitted to the Maine bar in 1995 and the bulk of her practice as a Maine Attorney has been as a solo practitioner.
First Count
On March 26, 2007, Attorney Martica S. Douglas filed a grievance complaint against Attorney Frank. The complaint alleged violations of the Code of Professional Responsibility related to Attorney Frank's involvement in a real estate closing between Victor Bernier and Robert Hanson. On April 23, 2007, Attorney Frank filed her initial response to the grievance, generally denying any Code violations. By way of background, Mr. Bernier inherited ownership of his childhood home, in Brunswick, Maine, following the death of his mother in December 2005. Mr. Bernier subsequently became unable to meet the financial obligations of maintaining the home, largely due to his impairments resulting from Myopic Dystrophy.
In August of 2006, Mr. Bernier sold the property to Mr. Hanson (the buyer) for a purchase price of $15,655, which equaled the outstanding mortgages on the family home. Mr. Bernier became aware of Mr. Hanson's possible interest through a flyer sent to him by Mr. Hanson. In the closing transaction, Attorney Frank was retained by the buyer of the property, Mr. Hanson; however, her involvement was more than that of a typical buyer's attorney. In addition to acting as closing agent, Attorney Frank prepared the Warranty Deed as well as the transfer tax documents, without Mr. Bernier's request to do so. Although Attorney Frank denied that she was representing Mr. Bernier, she procured from both buyer and seller a signed conflict disclosure rendering each party's consent to the simultaneous representation. In hindsight, Attorney Frank acknowledges Mr. Bernier's belief that she was representing his interests at the real estate closing, given the executed consent and her preparation of the seller's documents referenced above.
Based upon her actions during the 2006 closing, Attorney Frank engaged in simultaneous representation without fully informing each party of the limits of her representation, thus violating the Code of Professional Responsibility. Even with her disclosure and consent document, Attorney Frank was required to maintain the appropriate standard of care and judgment in the discharge of her professional duties.
Attorney Frank agrees that she should not have allowed the transaction to go forward with the documentation relating to Mr. Bernier's lease rights and ability to stay in the home remaining undocumented and unresolved. She should have paid more attention to the circumstances surrounding the somewhat unusual sale, and if the parties had not resolved all of the issues she should have referred them to independent counsel to resolve those issues. Attorney Frank's conduct in her essentially simultaneous representation of Mr. Bernier and Mr. Hanson, in a transaction in which they had competing interests, resulted in her violations of Rules 3.4(c)(2) and 3.6(a)(2).
Second Count
On or about January 9, 2009, Bar Counsel docketed a sua sponte complaint against Attorney Frank based upon her conduct in the case of Merrifield v. Hadlock, 2009 ME 1(ME 2009). Attorney Frank's failure to submit a required filing (notification of ADR or Report ADR conference) resulted in the dismissal with prejudice of her client's civil case in Cumberland County Superior Court. In her response to that complaint, Attorney Frank has acknowledged her resulting violations of M. Bar R. 3.1(a); and 3.2(f)(4).
Conclusion and Sanction
Due to Attorney Frank's above-outlined misconduct, Mr. Bernier's interest in his home was not fully protected, resulting in actual harm and additional litigation. Moreover, due to Attorney Frank's involvement in Merrifield, her client's legal matter was dismissed with prejudice.
Since these incidents, Attorney Frank has accepted responsibility for her lapses and admitted to her violations of the above-outlined sections of the Code of Professional Responsibility. Although Attorney Frank has no history of discipline, she did receive a warning sanction following her 2006 public disciplinary hearing concerning a lapse similar to what occurred in the Merrifield case. Following the issuance of that warning, the case against Attorney Frank was dismissed.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Frank agrees that she did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Frank's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of each of these matters is a reprimand of Erika M. Frank, Esq. as provided by M. Bar R. 7.1(e)(3)(C).
For the Parties
J. Scott Davis, Esq.
James M. Bowie, Esq.
For the Grievance Commission
Victoria Powers. Esq., Chair
James E. McKenna III, Esq.
Joseph Reisert, Ph.D
Board of Overseers of the Bar v. Sidney H. Geller
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Docket No.: GCF 08-132
Issued by: Grievance Commission
Date: August 31, 2009
Respondent: Sidney H. Geller, Esq.
Bar Number: 000218
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Preserving Identity of Funds and Property
STIPULATED REPORT OF FINDINGS M. Bar R. 7.I(e)(4); M. Bar R. 7.1(e)(2)
On August 31, 2009, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Sidney H. Geller, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 7, 2009.
At the hearing, Attorney Geller was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. The complainant, Gary Jordan, was present and participated in the disciplinary hearing. Prior to the hearing, the parties had submitted a proposed, stipulated Report of Findings and Order for this Grievance Commission Panel's review and consideration.
Having reviewed the proposed Report as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Sidney H. Geller (Geller) of Waterville, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Geller was admitted to the Maine bar in 1963 and he is currently registered with the Board of Overseers of the Bar as an active Maine Attorney.
On April 12, 2008, Mr. Jordan filed a grievance complaint against Attorney Geller. The complaint alleged violations of the Code of Professional Responsibility by Attorney Geller involving neglect, lack of communication, and Geller's conversion of settlement funds related to Mr. Jordan's boundary dispute cases. On or about June 5, 2008 Attorney Geller filed a response with the Board, providing information regarding his representation of Mr. Jordan.
By way of background, Mr. Jordan hired Attorney Geller to represent him in two cases against the Town of St. Albans Town), both involving a boundary line dispute. One case was a claim of trespass, and the other was an objection to the Town of St. Albans taking the parcel in dispute under eminent domain. After trial, Mr. Jordan did not prevail on either case. Attorney Geller represented Mr. Jordan during his appeal of the eminent domain case before the Law Court. The Law Court affirmed the lower court's ruling, and remanded the case back for a jury determination of damages. The jury returned a verdict of $6,700.19 plus costs for Mr. Jordan.
In post-judgment activity, counsel for the Town filed a table of costs. Attorney Geller filed no response to the Town's costs, as he was staying in Florida at the time. In December 2006, to satisfy the judgment awarded to Mr. Jordan, the Town delivered a $5,048.64 check to its attorney to forward to opposing counsel, Attorney Geller. The Town's check reflected the judgment of $6,700.19, less the Town's costs of proximately $2,000.00. The Town was entitled to reduction of the judgment because the judgment was less than the Town's Offer of Judgment (see M.R. Civ. P. 68). On or about September 25, 2007, Attorney Geller received the $5,048.64 check from the town's attorney.
Attorney Geller acknowledges that his attempt to notify Mr. Jordan of Geller's receipt of the funds apparently proved unsuccessful. Attorney Geller reports that upon the firm's receipt of the town's check, he instructed his secretary to notify Mr. Jordan of that receipt, with a request that Jordan contact the office to discuss the disposition of the money. According to Attorney Geller the firm did not receive a response from Mr. Jordan, so they sent a second letter in December 2007. That letter informed Mr. Jordan that if Attorney Geller received no response by a certain date, the firm would apply the check to Mr. Jordan's outstanding legal fees. Ultimately, Attorney Geller applied the funds to Mr. Jordan's outstanding legal bill.
The Panel notes that throughout the investigation, Mr. Jordan has repeatedly disputed Attorney Geller's reported notification of the receipt of the check. Likewise, Mr. Jordan disputes that he received any requests from the firm to claim that check before relinquishing the funds to pay down his legal bill. Regardless of the divergent views, the Panel accepts Attorney Geller's concession that his failure to explicitly receive consent from Mr. Jordan violated Rule 3.6(e)(2) of the Code of Professional Responsibility.
After the representation had concluded, Mr. Jordan retained successor counsel to file a claim against the Town for non-payment of the awarded judgment. Upon the filing, the town's attorney informed successor counsel that the Town had paid the judgment. During its investigation, the Board of Overseers discovered the payment to Attorney Geller. Thereafter, Attorney Geller acknowledged his failure to send Mr. Jordan those funds.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Geller's above-outlined failures, his client's post-judgment interests were not adequately protected. Attorney Geller also impermissibly retained costs recovered from an opposing party, with no agreement from his client to apply those funds to the client's legal bill.
The Panel notes that Attorney Geller has taken responsibility for applying the check to Mr. Jordan's legal bill without having obtained specific authority from Mr. Jordan to do so. During this hearing, Attorney Geller expressed remorse for his serious violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Geller agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Geller's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Sidney H. Geller, Esq. which is now hereby issued and imposed pursuant to M. Bar R.7 1(e)(3)(C), (4).
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
William E. Baghdoyan, Esq.
David Nyberg, Ph.D.
Board of Overseers of the Bar v. Jon A. Languet, Esq.
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Docket No.: GCF 08-295
Issued by: Grievance Commission
Date: July 28, 2009
Respondent: Jon A. Languet, Esq.
Bar Number: 004236
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conflict of Interest: When Lawyer May Be Called as Witness; Withdrawal from Employment
Stipulated Report of Findings M. Bar R. 7.1(e)(2)(4)
On July 28, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Jon A. Languet, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 31, 2009.
At the hearing, Attorney Languet appeared pro se, and the Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. The complainant, Judge Valerie Stanfill, did not participate in the Stipulated Hearing but had previously received a copy of the Proposed Report and informed Bar Counsel that she did not object to the issuance of such a Report.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel now makes the following disposition:
Findings
Respondent Jon A. Languet (Languet) of Topsham, County of Sagadahoc, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Languet was admitted to the Maine Bar in December 2007 and he is currently registered as an active Maine attorney.
On August 12, 2008, Farmington District Court Judge Valerie Stanfill filed a Grievance Complaint against Languet. The court's Complaint included a copy of its Findings of Fact and Conclusions of Law dated August 11, 2008 in the matter of Kenneth Burek v. Belgrade Concrete Cutting, Inc. Docket No. FARDC-CV-06-110. By incorporation of those Findings and Conclusions, the court's Complaint claimed Languet had violated the Code of Professional Responsibility by his continued representation of his client (a closely held corporation in which he was the sole shareholder), despite the fact that he intended to testify at the trial of that underlying litigation.
By way of background information, Languet's corporation, Belgrade Concrete Cutting, Inc. (BCC) became the defendant in civil litigation regarding a concrete cutting project that it had performed. Languet was a key participant in the dispute, having had discussions with the plaintiff regarding the work to be performed. A friend and fellow attorney represented BCC during the early stages of litigation. Languet assisted that attorney in a lesser capacity until Languet was admitted to the Maine Bar in January 2008. At that point, Languet took over as lead counsel in the litigation. Languet subsequently filed all of the pre-trial submissions, including ones that listed himself as the only witness for the defendant corporation, BCC. While Languet discussed this conflict with co-counsel, he failed to ever seek assistance from an experienced trial attorney not connected to the litigation.
It is clear that Languet failed to timely analyze the conflict question inherent in his remaining as lead counsel while also appearing as a witness in the litigation. Judge Stanfill brought the obvious conflict to Languet's attention and proposed two options for him: to either represent the corporation and therefore not testify; or to withdraw and then testify as BCC's lead witness. Even after Languet exercised his option to remain as BCC's counsel, he failed to appreciate the purpose behind M. Bar R. 3.4(g)(1)(i). Specifically, in his initial response to Bar Counsel concerning the court's Complaint against him, he still claimed that various exceptions to Bar Rule 3.4(g)(1)(i) applied and therefore he did not really have a conflict under that Bar Rule. In addition, he appealed the District Court's judgment in favor of the Plaintiff to the Law Court claiming the court had committed judicial error in refusing to allow Languet to testify during his representation of BCC. Languet's appeal resulted in the Law Court's Memorandum of Decision dated March 24, 2009 affirming the District Court's judgment. In hindsight, Languet now agrees that the exceptions in Bar Rule 3.4(g)(1)(i) did not apply to his handling of the BCC litigation and that Judge Stanfill made the proper findings and conclusions concerning his improper trial conduct.
As a result, Languet's failure to appropriately appreciate and resolve the conflict related to his actions in BCC's litigation constituted his violation of M. Bar R. 3.1(a), 3.4(g)(1)(i), and 3.5(b)(1). Upon further reflection, Languet has now accepted and expressed his understanding and regret for those violations by him.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Languet's actions, his corporation was unable to present a defense in its litigation, and as such was prejudiced in the underlying litigation. Attorney Languet failed to take affirmative steps to resolve the serious conflict issue with which he was presented. A review of all of the circumstances leads this Panel to find that Attorney Languet violated M. Bar R. 3.1(a), 3.4(g)(1)(i), and 3.5(b)(1).
The Panel notes that Attorney Languet has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Languet expressed his remorse for his violations of the Code of Professional Responsibility. The Panel notes that the injury his client suffered was, in fact, injury only to Attorney Languet, as he is the sole shareholder in BCC. The Panel also expects that there is little likelihood of repetition of such misconduct by Languet.
M. Bar R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Languet agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Languet's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney Jon A. Languet which is now hereby issued and imposed upon him pursuant to M. Bar R.7.1(e)(3)(C), (4).
For the Grievance Commission
Victoria Powers, Esq., Chair
James A. McKenna III, Esq.
Joseph R. Reisert Ph.D.
Board of Overseers of the Bar v. Gerald S. Cope
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Docket No.: BAR-09-6
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 14, 2009
Respondent: Gerald S. Cope, Esquire
Bar Number: 001801
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
Order M. Bar R. 7.3(g)(3)
Attorney Gerald S. Cope was admitted to practice in Maine in 1955. This matter is before the Court to consider his voluntary resignation, dated April 15, 2009, that has been tendered by him pursuant to M. Bar R. 7.3(g). Attorney Cope's letter of resignation is supported by his Affidavit dated April 15, 2009. On April 22, 2009, the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Cope's resignation from the Maine bar.
Therefore, after hearing on this date at which Attorney Cope appeared and was represented by counsel, it is hereby ORDERED:
Pursuant to M. Bar R. 7.3(g)(3), Gerald S. Cope's resignation from the Maine Bar is accepted. Thirty (30) days from the date of this Order his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Mr. Cope shall also comply with his remaining notification reporting requirements under M. Bar R. 7.3(i)(1) within that same thirty-day (30) period.
As required by M. Bar R. 7.3(g)(3), Gerald S. Cope's supporting Affidavit dated April 15, 2009, is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Mr. Cope seek reinstatement to the Maine Bar, that Affidavit may then be made public without further order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
The Court hereby Orders that the Board of Overseers of the Bar shall take no steps to initiate publication of this decision through any releases to the press.
For the Court
Hon. Ellen A. Gorman, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Gary H. Reiner
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Docket No.: BAR-05-9
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 16, 2006
Respondent: Gary H. Reiner, Esq.
Bar Number: 000230
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
Order Accepting Resignation
Pursuant to M. Bar R. 7.3(g), after hearing and upon recommendation of the Board of Overseers, the Court accepts the resignation of Gary H. Reiner. In compliance with M. Bar R. 7.3(g)(3), this order is matter of public record, but the supporting affidavit and documents are impounded.
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen E. Langsdorf
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Docket No.: GCF 08-007
Issued by: Grievance Commission
Date: June 29, 2009
Respondent: Stephen E. Langsdorf, Esq.
Bar Number: 003500
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice
Stipulated Report of Findings M. Bar R. 7.1(e)(2)(4)
On June 29, 2009, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.I(e)(2)(E), concerning misconduct by the Respondent, Stephen E. Langsdorf, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 18, 2008.
At the hearing, Attorney Langsdorf was present and represented by Attorney Peter J. DeTroy. The Board was represented by Assistant Bar Counsel Aria Eee. Complainant Jonathan S. Piper, Esq. of Preti Flaherty Beliveau & Pachois, LLP, also attended the hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Stephen E. Langsdorf (Langsdorf) of Augusta, County of Kennebec, State of Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Langsdorf was admitted to the Maine Bar in 1987 and he is currently registered as an active Maine attorney.
On January 2, 2008, Attorney Jonathan S. Piper (Piper) of Portland, filed a grievance complaint against Attorney Langsdorf. Attorneys Piper and Langsdorf are members of the same law firm. The Complaint involved the firm's Central Maine Power (CMP) utility account which had been affected by Attorney Langsdorf's actions. The complaint alleged violations of the Code of Professional Responsibility due to Attorney Langsdorf's use of the law firm as a guarantor (in lieu of a cash deposit to CMP) for a personal business enterprise owned by Langsdorf and his wife.
By way of background information, in June 2003 Attorney Langsdorf purchased an Augusta, Maine business with his wife and renamed the business as "Top Form Gym and Racquet Club" (Top Form Gym). On July 24, 2003, without his law firm's knowledge or consent, Attorney Langsdorf committed the firm to act as guarantor for Top Form Gym's utility service through CMP. Although Langsdorf had four years in which to terminate the firm's exposure as a guarantor, he failed to do so. In July 2007, Attorney Langsdorf and his wife sold Top Form Gym and liquidated its assets to pay outstanding debts. During the liquidation process, Top Form Gym's CMP bill remained delinquent as did debts to other creditors and vendors. CMP made further requests of Attorney Langsdorf for payment, which he referred to his wife in her capacity as Top Form Gym's general manager. Apparently Attorney Langsdorf had never handled any of the financial matters for Top Form Gym. In hindsight, Attorney Langsdorf concedes that his failure to take affirmative steps to ensure that his business obligations were appropriately discharged constituted a violation of M. Bar R. 3.l(a) and 3.2(f)(4).
On October 25, 2007, given the outstanding delinquency, CMP billed the law firm for the $6,575.44 owed by Top Form Gym. Thereafter, the law firm's office administrator sent an email to Attorney Langsdorf, notifying him of the firm's receipt of the bill owed to CMP. The administrator requested that Attorney Langsdorf make an immediate payment to resolve the firm's obligation. After notification, Attorney Langsdorf made payment in full and subsequently emailed the firm's "Equity Partners" admitting he had wrongfully and without authority used the firm's business account to guarantee his business' debt.
Thereafter, the firm met to review Attorney Langsdorf's actions. Following that meeting, the firm instituted various restrictions and protocol to ensure that Attorney Langsdorf had not engaged in any other bar violations.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. As a result of Attorney Langsdorf's actions, his law firm was exposed to financial liability for Attorney Langsdorf's personal business enterprise. Thereafter, Attorney Langsdorf failed to take affirmative steps to remove the firm's exposure. A review of all of the circumstances results in this Panel finding that Attorney Langsdorf engaged in violations of M. Bar R.3.1(a) and 3.2(f)(4).
The Panel notes that Attorney Langsdorf has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Langsdorf expressed his remorse for his violations of the Code of Professional Responsibility.
M. Bar.R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Langsdorf agrees that he did, in fact, violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Langsdorf's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Stephen E. Langsdorf, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
William E. Baghdoyan, Esq., Acting Panel Chair
David Nyberg, Ph.D.
Board of Overseers of the Bar v. David A. Soley
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Docket No.: GCF 02-198
Issued by: Grievance Commission
Date: December 20, 2004
Respondent: David A. Soley, Esq.
Bar Number: 006799
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Illegal Conduct that Adversely Reflects on the Lawyer's Honesty, Trustworthiness, or Fitness as a Lawyer in other Respects
Report of Findings of Panel D of The Grievance Commission
On December 20, 2004, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, David A. Soley, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on May 28, 2004.
Present at the hearing were Assistant Bar Counsel Nora Sosnoff representing the Board, and Attorney Peter J. DeTroy representing the Respondent, Attorney David A. Soley.
The Panel heard testimony from the respondent, David A. Soley, pursuant to questioning by Assistant Bar Counsel Sosnoff and Attorney DeTroy. Having heard that testimony and having reviewed the proposed findings presented by the parties, the Panel makes the following disposition:
Findings
Respondent David A. Soley, of Freeport, County of Cumberland, State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Soley was admitted to the Maine Bar in 1989. He is an attorney with the law firm of Bernstein, Shur, Sawyer & Nelson, having offices in Portland, Maine and elsewhere. Attorney Soley has no record of prior discipline or sanction under the Maine Bar Rules.
On September 24, 2002, Attorney Soley was arrested by the Freeport Police. His arrest followed a heated argument with his wife. During that argument he threw kitchen utensils. Attorney Soley denies that the utensils were aimed at his wife or thrown with intent to injure her, but admits they caused damage to a kitchen appliance near where she was standing.
On March 11, 2003, Attorney Soley plead guilty to two counts of Class D reckless conduct. The conditions of probation associated with Attorney Soley?s convictions included: counseling and attending a batterer?s intervention education program.
Attorney Soley acknowledges and in his own words states that his ?actions were part of a lifestyle and pattern of behavior that was both wrong and unhealthy.? He asserts that ?I?take full responsibility for my wrongful behavior.? Further, in his words: ?I recognize that the practice of law, for me, had become an all consuming passion. I spent most of the last twenty years engrossed in trials, litigation, and all of the intense anxiety emanating from this lifestyle. I limited my sleep, I spent long hours at work, and I lived for the ?high? created by the excess stress.... ?
The conduct by Attorney Soley that resulted in his conviction was unworthy of an attorney in violation of M. Bar R. 3.1(a) and conduct in violation of Maine?s Criminal Code, thus constituting a violation of M. Bar R. 3.2(f)(2).
Attorney Soley has abided by the conditions of probation, including attending and completing a 48 - week state certified batterer?s intervention program. Attorney Soley informs the Panel that he is engaged in insight-based counseling and that he has adopted significant lifestyle changes.
Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar R. 7.1(e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction. These factors are:
- whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the attorney acted intentionally, knowingly, or negligently;
- the amount of actual or potential injury caused by the attorney's misconduct; and
- the existence of any aggravating or mitigating factors.
The panel has accordingly considered the foregoing factors and finds: Attorney Soley has violated duties owed to the legal system and the profession. While the injury caused by the misconduct did not directly impact a client, nor did it involve the practice of law per se, it does, as Attorney Soley acknowledges, damage the public perception of the profession. The panel further concludes that the misconduct found warrants a public reprimand.
Sanction
Therefore, this Panel does hereby issue a public reprimand to Attorney Soley as sanction for his misconduct in violation of M. Bar R. 3.1(a) and 3.2(f)(2).
For the Grievance Commission
Patricia Ender, Esq.
David Nyberg, Ph.D
Benjamin Townsend, Esq.
Board of Overseers of the Bar v. Kathleen T. O'Boyle
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Docket No.: BAR-09-8
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 18, 2009
Respondent: Kathleen T. O'Boyle, Esq.
Bar Number: 008752
Order: Temporary Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Unauthorized Practice; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment: Neglect of a Client's Matter; Inadequate Preparation; Registration Requirements
Order of Suspension
Background
On June 17, 2009 the Board of Overseers of the Bar petitioned this Court for an immediate Order temporarily suspending Attorney Kathleen T. O'Boyle from the practice of law in the State of Maine. Included with the Board's petition were related exhibits and an Affidavit of Assistant Bar Counsel.
Upon consideration of the Board of Overseers of the Bar's Petition for Temporary Suspension and after providing Attorney O'Boyle an opportunity to be heard, it is hereby ORDERED as follows:
For good cause shown by the Board of Overseers of the Bar that Attorney Kathleen T. O'Boyle appears to have committed numerous violations of the Code of Professional Responsibility, thereby serving as a threat to clients, the public and to the administration of justice, this Court hereby orders that she be temporarily suspended from the practice of law in Maine until the conclusion and resulting disposition of all disciplinary matters now pending before the Grievance Commission or the Court or such other time as the Court may direct.
For the Court
Hon. Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles G. Williams
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Docket No.: BAR-02-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: April 7, 2004
Respondent: Charles G. Williams, III
Bar Number: 008827
Order: Disbarment
Disposition/Conduct: Neglect of a Client's Matter; Conduct Involving Ddishonesty, Fraud, Deceit, or Misrepresentation; Excessive Fees
Order
In this bar disciplinary proceeding there are three Informations before the Court involving twenty-eight complaints. A hearing was held before the Court at Bangor on April 5 and 6, 2004. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis, Esq. Although Charles Williams had notice of the scheduled hearing, Mr. Williams did not appear. The Court proceeded in his absence.
The Board offered evidence in connection with eighteen of the complaints contained in the three Informations filed against Mr. Williams. The evidence offered by the Board established a pattern of client neglect, excessive fees, incompetency, unauthorized disclosure of confidential information, failure to respond to orders of the Fee Arbitration Commission, and the failure to respond to inquiries from Bar Counsel. The record indicates that Mr. Williams failed to communicate with his clients, missed appointments both with his clients and with the courts, and failed to respond to telephone messages from his clients, opposing counsel, and the courts. The testimony from one former client established on three separate occasions that Mr. Williams forced her to engage in an unwanted sexual act.
The Court notes that the Lawyers' Fund for Client Protection has to date paid ten claims against Mr. Williams totaling $24,275.89 and as of March 31, 2004, the Board of Overseers of the Bar has incurred witness fees, transcription charges, and civil process service fees upon Mr. Williams and witnesses totaling $5,457.84.
The record establishes that Mr. Williams presents a danger to the public and has demonstrated an inability to follow the clear mandates of the Code of Professional Responsibility. Disbarment enforces the purpose of discipline in that the public is protected from the further practice by the lawyer and taking appropriate action against lawyers who fail to follow the professional and ethical precepts enunciated by the Code of Professional Responsibility protects the reputation of the legal profession. The record clearly demonstrates that Mr. Williams has repeatedly violated M. Bar R. 2, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.13, 6, and 9.
It is ordered and adjudged that Charles B. Williams III be and hereby is disbarred from the practice of law in the State of Maine effective this date. Should Mr. Williams seek reinstatement, a condition of his reinstatement shall be reimbursement to the Board of Overseers of the Bar of all expenses it has incurred in the prosecution of this disciplinary proceeding and reimbursement to the Lawyers' Fund for Client Protection for all payments made by it on claims made against Mr. Williams.
For the Court
Hon. Paul L. Rudman, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Thomas Acker
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Docket No.: BAR-05-08
Issued by: Single Justice, Maine Supreme Judicial Court
Date: April 7, 2006
Respondent: Thomas R. Acker
Bar Number: 003381
Order: Receiver Appointment
Disposition/Conduct:
Order on Motion for Appointment of Receiver to Protect Former Clients' Interests (M. Bar R. 7.3(f); and to Permit Limited Discovery
This matter having come before the undersigned Associate Justice of the Maine Supreme Judicial Court upon petition of the Board of Overseers of the Bar for an order appointing a Receiver to protect the interests of the former clients of suspended attorney Thomas R. Acker, the Court makes the following Order:
Findings of Fact
Prior to the initiation of this disciplinary proceeding, Thomas R. Acker of Denmark, Maine, was engaged in the practice of law as a sole practitioner with an office in Gorham, Maine. Mr. Acker was suspended from the practice of law by this Court on December 23, 2005. Mr. Acker's suspension renders him unable to continue his legal practice.
Based on the Board's offer of proof, there are recent, former clients of Mr. Acker whose legal documents and business records remain in Mr. Acker's possession. Despite their repeated efforts, these former clients have been unable to retrieve their respective materials from Mr. Acker.
Mr. Acker failed to appear for a hearing on the Board's motion seeking the appointment of a receiver held on March 29, 2006. Beginning on or about February 27, 2006, Mr. Acker was hospitalized for a period of approximately seventeen days. His current physical and mental condition is unknown to the Court.
Mr. Acker?s suspension from the practice of law, his failure to return documents to his former clients, and his failure to appear at scheduled hearings in this disciplinary proceeding, make it necessary for a Receiver to be appointed to protect the interests of Thomas R. Acker's former clients.
THEREFORE, pursuant to Maine Bar Rule 7.3(f), it IS ORDERED as follows:
- Receiver Wayne E. Tumlin, Esq., of Portland, Maine, is appointed as Receiver and directed to:
- Secure any and all professional records and files in the possession or control of Thomas R. Acker related to his clients which were active as of January 1, 2002, or opened subsequent thereto. All of these client-related records and files are to be provided by Mr. Acker to the Receiver regardless of Mr. Acker?s characterization of a particular client as a legal, tax, financial, investment or some other type of professional client. Hence, if the records and files were maintained by Mr. Acker in any business or professional capacity during the above-outlined time period, they are to be included in the turnover to the Receiver.
- Make an inventory of such records and files, and file the inventory with the Court under seal. Copies of the inventory shall be provided to the Board and to Mr. Acker.
- Take such further appropriate action as the Receiver, in the exercise of his discretion, deems necessary to protect the interests of such former clients including, but not limited to, reporting to this Court; contacting former clients to inform them how to obtain their files; informing clients of the need to obtain new legal counsel; and/or referring clients to new counsel in the appropriate cases.
- Advise the Court and the Bar Counsel when the purposes of this appointment appear to have been completed.
- Delivery of Professional Records
- Maine Assistance Program for Lawyers and Judges (MAP)
At his own expense, Mr. Acker shall immediately contact and enter into a contractual relationship with MAP, to the satisfaction of the Director of MAP. The Director of MAP shall report to the Court on the need for the appointment of a guardian ad litem or other representative pursuant to M.R. Civ. P. 17(b) to represent Mr. Acker's interests in this proceeding. The Director of MAP may also, at his discretion, report to the Court fron1 time-to-time on the status of Mr. Acker's involvement with MAP.
Mr. Mangan made inappropriate use of his client escrow account to pay a retainer on Ms. R.'s behalf to Attorney William Cote.
Mr. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work on behalf of Ms. R. regarding payment of certain medical bills and his search for the fathers of two of her daughters.
Mr. Mangan physically forced Ms. R. to have sex with him against her will. (This allegation does not turn on the existence of an attorney-client relationship.)
Mr. Mangan engaged in a sexual relationship with Ms. R. at a time when Ms. R. was a client of Mr. Mangan, the relationship adversely affected his representation of her, and Mr. Mangan abused the attorney-client relationship in the context of the sexual relationship.
- Mr. Mangan has regularly provided many hours of pro bono service to people in need of legal assistance. He has consistently been willing to represent those who may have found no other assistance in the legal community because of their financial, and occasionally language and educational, limitations.
- Mr. Mangan has been the subject of five previous disciplinary proceedings resulting in the imposition of sanctions.
- Mr. Mangan placed his own funds into his client trust fund in order to pay Ms. R.'s retainer with another attorney, notwithstanding a prior reprimand for placing his own funds into that account. In that prior reprimand, the Commission noted concerns similar to those of this Court that Mr. Mangan's decision to place his personal funds into the client trust account was for purposes of deception of a third party (in that case creditors and the IRS; here, Attorney Cote or Barry R.).
- Mr. Mangan's conduct with Ms. R. involved the abuse of the trust and confidence of a client and occurred over many months and years. He did not, at any time, explain that he could no longer provide legal services to her. He did not cease the relationship upon evidence that Ms. R. wished to do so. He threatened to "take her down with him" if she exposed him. He reminded her of his esteemed position in the legal community. At no time did he recognize the coercive nature of his conduct and cease that conduct.
- Mr. Mangan's 1997 suspension for making improper sexual advances to a client/employee related to incidents in 1995 that occurred during the time that his relationship with Ms. R. was ongoing. In that matter, in findings strikingly similar to those at bar, the single justice (Clifford, J.) found that the client was vulnerable to Mr. Mangan's advances, and that she "had little money and was dependent on Respondent to represent her as an attorney and to provide some part-time employment to her." The justice found that the client may have had a financial motive for filing her complaint against Mr. Mangan, but was credible nonetheless, and that Mr. Mangan "has not acknowledged that his conduct was improper in any way." The justice also found that "although Mr. Mangan used no force, the woman was "very vulnerable and should not have been subjected to sexual advances."
- Finally, Mr. Mangan does not acknowledge, or even appear to recognize, that his conduct with Ms. R. was unacceptable. While he is very sorry that the complaint has led to protracted litigation with the Board and that it has caused many problems with his own personal life, he is not in the least contrite for the harm done to Ms. R. or to the profession. He remains angry and feels misunderstood. He has not even begun to grapple with the difficulties caused by entering into a relationship with a client. If he believed he would not get caught, it is highly likely that he would engage in the same or similar behavior again.
- A slip and fall claim against Jo Ann Fabrics regarding the February 2, 2004 incident;
- An employment discrimination claim against ProTea regarding the June 28, 2004 refusal to allow her to return to work;
- Pursuant to the August 9, 2004 meeting, Attorney Brown did agree to investigate various matters on behalf of Ms. Dinsmore. It is not entirely clear whether at that time he undertook formal representation as defined by Rule 3.4. The Panel agrees that it is appropriate under certain circumstances to conduct an investigation prior to agreeing to representation. Unfortunately, at the time Attorney Brown agreed to undertake investigation of Mrs. Dinsmore's claims he failed to appreciate or acknowledge the applicable statute of limitations specifically the six month statute of limitations applicable to the commencing of a claim with Maine Human Rights Commission, Title 5, MRSA ?4622;
- Mrs. Dinsmore wrote to Attorney Brown on November 2, 2004. In that letter she began the communication with "I want to thank you for trying to help me with the problems". She concluded her correspondence with "I will be so relieved when this case is settled as it is causing a hardship". (See Exhibit #9) <.li>
- After receipt of the November 2, 2004, correspondence from Mrs. Dinsmore, Attorney Brown did not respond, correct, or clarify for Mrs. Dinsmore the scope or limitations of his representation. Rather, Attorney Brown wrote to Mrs. Dinsmore on December 7, 2004. In the December 7, 2004, correspondence he clearly indicated he did not believe she had a claim regarding her fall at Jo Ann Fabrics. He did, however, indicate that her wrongful termination claim against her former employer, ProTea, "may have some merit". He requested additional information and closed his letter by stating "Once I have received this information, I will then write a letter to your former employer asserting a claim on your behalf? (See Exhibit #3). At no time did Attorney Brown advise Mrs. Dinsmore of the looming and potential expiration of the statute of limitations to assert and file a claim with the Maine Human Rights Commission.
- Based upon that exchange of correspondence, Mrs. Dinsmore could objectively believe that legal representation had been commenced by Attorney Brown regarding the employment termination case against ProTea, as commencement of employment is defined by Rule 3.4(a) (2).
- On February 9, 2005, Attorney Brown communicated to Mrs. Dinsmore that he was not going to represent her regarding her employment termination case against Pro Tea. By the time of February 9, 2005, the Statute of Limitations to pursue a claim before the Maine Human Rights Commission had expired.
- Allowing the Statute of Limitations to expire without either protecting Mrs. Dinsmore's rights or advising her of the looming deadline constitutes conduct which is neglectful of a legal matter entrusted to him, which is prohibited by Rule 3.6 (a)(3). At the hearing, Attorney Brown fully acknowledged that he missed the applicable Statute of Limitations regarding the Maine Human Rights claim.
- None of Attorney Brown's conduct was done intentionally or knowingly, but it does rise to a level of negligence.
- Attorney Brown's conduct did not result in any damage to Mrs. Dinsmore's claim against Jo Ann Fabrics, as the Statute of Limitations has not expired for that claim. His conduct did, however, result in damage regarding her employment termination claim against Pro Tea. Specifically, the conduct resulted in her being barred from commencing a claim before the Maine Human Rights Commission and further barred her from making a claim for attorney fees, pursuant to Title 5, MRSA ?4614 or any of the other statutory damages, which may have been applicable pursuant to Title 5, MRSA ?4613. Although his conduct did not deprive her from still asserting a civil action in the Superior Court, pursuant to Title 5, MRSA ?4625, his conduct did result in her being barred from asserting the aforesaid claims before the Maine Human Rights Commission and deprived her from seeking attorney fees, etc.
- Attorney Brown's failure to communicate or clarify the scope (or limitations thereof) of his employment for Ms. Dinsmore may have been only "minor" misconduct. When coupled, however, with his failure to identify or communicate to Mrs. Dinsmore the looming expiration of the Statute of Limitations to assert a claim before the Maine Human Rights Commission, it cannot be said his conduct was minor. Similarly, in cannot be said that Mrs. Dinsmore suffered "little or no injury" as his conduct deprived her of the right to assert those claims before the Maine Human Rights Commission.
- In the Fall of 2000 and into the Spring and Summer of 2001, Anderson failed to follow through on her attorney obligations to many clients concerning their respective real estate transactions. In some cases, she would close the sale, but fail to record the deed. She collected many premiums from clients for title insurance for both buyers and lenders, deposited the funds in her client trust account, wrote out checks for the premiums, but failed to forward the premium amounts. As a result, many of the owners and lenders were unknowingly without title insurance they had purchased, and Anderson received and kept more money than she was entitled to which she then purportedly placed in her client trust account.
- At some point in 2001, Anderson made arrangements with an attorney to lease her law office building in Blue Hill to him from which he would operate a title insurance company. Anderson stayed on as an employee of that title company for a time, but in approximately July 2001 she left for Rochester, New York and left no forwarding address. At the time of her departure, Anderson left many clients' work unfinished and provided no notice to those clients that she had closed her office or that she had left Maine.
- As a result of information received by the office of the Board's Bar Counsel as to the unfinished status and often missing client files, upon the Board's motion, the Court issued an Order for Appointment of Counsel on January 18, 2002 under M. Bar R. 7.3(f). Pursuant to that Order, Attorney Ellen Best was so appointed and therefore visited. Anderson's former office and undertook the very time-consuming task of trying to restore the chaotic state of Anderson's former clients' files and real estate matters. Best's Interim Report of May 15, 2002 was submitted to the Court on that date. As a result of the very arduous work and services of Best, many of Anderson's former clients were notified of her misappropriation of their funds, and of the existence of the grievance complaint process of the Board of Overseers of the Bar.
- The Board initially received at least eight (8) grievance complaints from former clients claiming that Anderson had misappropriated their funds. Although notified by the Board of those complaint matters, Anderson failed to file any responses to any of them.
- Effective October 25, 2001, Anderson received a non-disciplinary summary suspension under M. Bar R 6(b) and 10(c) for failure to register with the Board or pay the annual fee as required under the Maine Bar Rules. That suspension remains in effect at present.
- In separate but related proceedings before the Fee Arbitration Commission, Anderson was ordered to refund unearned fees in four (4) of those same client complaint matters, totaling $2,050, but has failed to make any refunds in violation of M. Bar R. 9(i).
- As a result, the Court finds that Anderson violated M. Bar R 2(c) (Grounds for Discipline); 3.1(a) (Conduct Unworthy of an Attorney); 3.2(f)(1)(2)(3)(4) (Other Misconduct involving illegal conduct, deceit and misrepresentation); 3.3(a) (Excessive fees) 3.5(a) (Withdrawal from Employment); 3.6(a)(2)(3) (Conduct During Representation - Standards of Care and Judgment; Neglect); 3.6(e)(2) (Preserving Identity of Funds and Property and 9(i) (Enforcement of Fee Award).
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Gary J. Karpin is disbarred for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to his violations of Vermont's Rules of Professional Conduct as found in the Supreme Court of Vermont's Order dated May 21, 1993.
The Court appoints Robert F. Ward, Esq. as Monitor for Mr. Swales for a period of one year commencing June 1, 2002, unless terminated earlier as herein provided or by other order of this Court;
Mr. Ward shall review Mr. Swales' office procedures and help Mr. Swales establish appropriate procedures for the handling of client funds, the calendaring of appointments to insure Mr. Swales prompt attention to client matters, and prompt attendance for scheduled court matters;
During the period of supervision, Mr. Ward shall receive monthly written reports from Mr. Swales concerning the current status of matters in which he has been retained to act as counsel;
Mr. Ward is a volunteer who shall receive no compensation and who shall be expected to incur no expense;
Mr. Swales will meet with Mr. Ward within ten (10) days of the date of this Order and thereafter at the call and convenience of Mr. Ward on a monthly basis, unless Mr. Ward should determine more frequent meetings are appropriate;
Mr. Ward shall have the right to withdraw and terminate his service at any time for any reason he deems sufficient, including for reasons set forth in paragraph seven below. In the event of a withdrawal, he shall notify the Court and Bar Counsel, and Mr. Swales shall then cooperate to obtain the services of an alternate Monitor to complete the remainder of the original Monitor's term;
If any aspect of the monitoring procedure creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules (for example, if Mr. Swales is or becomes opposing counsel concerning a matter involving Mr. Ward), then Mr. Ward may adopt anyone of the following courses with the proposed result:
- Mr. Ward shall cease to act as such and a potential conflict is avoided;
- Mr. Ward shall continue as Monitor but totally exclude Mr. Swales' client and matter in question from the monitoring process, so that no conflict is deemed to exist:
- Mr. Ward shall continue as Monitor, and obligate his firm to withdraw from the conflicting matter; or
- Mr. Ward shall continue as Monitor, and obligate Mr. Swales not to participate in the matter and to obtain new counsel for his client(s).
- If, in Mr. Ward's judgment, it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Swales' reports to him;
- Mr. Ward shall have no contact with any of Mr. Swales' clients and his only contact in the performance of his duties shall be with Mr. Swales or other persons contemplated by this Order. Mr. Ward's participation in the monitoring of Mr. Swales' practice shall be deemed not to create an attorney-client relationship between Mr. Ward and Mr. Swales or between Mr. Ward and Mr. Swales' clients;
- Mr. Ward shall file a confidential report with the Court on or before July 15, 2002, and quarterly thereafter or sooner if Mr. Ward deems it necessary, with copies to Mr. Swales and Bar Counsel concerning any professional assistance Mr. Ward has provided to Mr. Swales;
- Mr. Ward will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Mr. Swales of which Mr. Ward becomes aware or lack of cooperation by Mr. Swales in the performance of this Order;
- In the event a grievance complaint is received by Bar Counsel concerning alleged conduct occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b); and
- Any apparent violation of the conditions of this Order shall be filed by Bar Counsel directly with the Court.
On or before December 27, 2004, Mr. Wilson shall take all the necessary steps to remove the two current summary suspensions now in place against him under M. Bar R. 6(b) and 12(c), including payment of all arrearage registration fees and completion of at least twenty-two (22) hours of approved continuing legal education (CLE) with at least two (2) hours being primarily concerned with issues of professional responsibility or ethics;
The Court deems Mr. Wilson's settlement of the underlying Knight judgment to be a mitigating factor in this matter. Therefore, on or before September 24, 2004, Mr. Wilson shall complete settlement of the Knight matter and complete payment to Ms. Knight at least in the amount that was disclosed to Bar Counsel by Mr Wilson?s attorney;
At his own expense, Mr. Wilson shall continue his current participation in the Maine Assistance Program for Lawyers and Judges (MAP) and shall undergo assessment, testing, and treatment as well as enter into a contractual relationship with MAP, all to the satisfaction of the Director of MAP;
Mr. Wilson shall continue being treated by Dr. Benjamin Grasso for major depression to the satisfaction of both Dr. Grasso and the Director of MAP;
Prior to returning to active practice any time after January 1, 2005, Mr. Wilson must first receive and provide to Bar Counsel the separate written agreements and approvals of both the Director of MAP and Dr. Grasso that Mr. Wilson is appropriately prepared to so return to active practice, and must also proceed under M. Bar R. 7.3(j) (reinstatement) and file the required fee and completed Petition for Reinstatement with the Court and Board for appropriate processing and investigation by Bar Counsel, with any hearing thereof to be conducted directly before this Court, not the Grievance Commission; and
Bar Counsel may file a disciplinary information directly with the Court without any Grievance Commission review or hearing concerning either any apparent violation by Mr. Wilson of any of the conditions of this Order or any new complaints of professional misconduct allegedly committed by Mr. Wilson and received by the Board after this date.
- MRWC improperly segregated itself from the church community at St. Phillips, and wrongly looked at matters from only the vantage point of their limited self interest;
- ?Many people? actively questioned MRWC?s practice of taking a percentage of the recoveries DeCoster workers received from their lawsuits against their employer;
- MRWC?s chairperson, Mr. Soto was not working to build community relations, but was seen as lining his own pockets from the misery of the DeCoster workers he claimed to represent. See Board Exhibit 29.
- In the last several months he had discussed with other members of the St. Philips? Parish MRWC?s apparent wish to end its cooperative relationship with St. Philips;
- MRWC had rejected every offer to work with St. Philips except to use the Church?s spaces; He and others at St. Philips were concerned that MRWC had lost sight of the ecumenical spirit and purpose of MRWC and that instead MRWC wanted to create a separate community within St. Philips, which conduct constituted reverse racism; and
- He discussed MRWC?s alleged improper relationship with St. Philips and that it appeared to the majority of the persons with whom he had considered matters that MRWC was working directly against church ideals. See Board Exhibit 36.
- MRWC?s failure to adopt proper accounting and bookkeeping procedures had put the tax-exempt status of MRWC and that of St. Philips at risk;
- MRWC chose to establish a segregated community instead of integrating itself with the St. Philips community at large;
- The practice of some MRWC and DeCoster workers of accepting free eggs from DeCoster was morally corrupt; and
- He intended to ask St. Paul?s to revoke its earlier decision sponsoring MRWC. See Board Exhibit 38.
- The Panel accepts and adopts as its findings the Stipulations entered into by the parties as set forth on Board Exhibit 16 attached hereto as an exhibit and incorporated herein.
- Paragraph 20 of Board Exhibit 16 states as follows:
Attorney Pickering admits that he violated Bar Rule 3.6 (a)(3) in three separate instances by (1) failing to search the Registry of Deeds indices for Ronald Lycette prior to closing the transactions from Kripps to Lycette to Realty Trust; (2) neglecting to record the deed from Realty Trust to Ruoss in a timely manner; and (3) neglecting to record the mortgage from Ruoss to Realty Trust in a timely manner. - Panel B further finds that Attorney Pickering violated Maine Bar Rule 3.6 (a)(2) by his failure to devote adequate preparation for the closings required under the contemplated transaction.
- The Panel therefore finds that as a result of the violations of Rule 3.6 (a)(2) and (3), Attorney Pickering has committed conduct deemed unworthy of an attorney within the meaning of M. Bar R. 3.1(a).
- In February 1997 Quimby contacted the Law Offices of Anthony P. Shusta, II, in Madison, Maine for the purpose of filing a bankruptcy.
- Frankenfield was an associate in the law offices, and he spoke to Quimby about his bankruptcy matter.
- Quimby paid a retainer of $600 to the law firm for the purpose of filing a bankruptcy for him.
- Frankenfield told Quimby that the matter would take approximately four to five months to finalize.
- Frankenfield told Quimby to refer any creditors to him.
- Approximately a year passed and Quimby received no information about the status of his bankruptcy.
- Creditors continued to contact Quimby directly.
- At some point Quimby received notice a creditor was taking him to court for a disclosure hearing on an amount owed.
- Quimby consulted with Frankenfield who told him that he would be in court that day and would try to resolve matters with the creditor.
- Quimby did not attend court that day and a civil order of arrest was issued for his failure to appear in court.
- After the premature birth of his son in November 1998 Frankenfield was infrequently in the office and was not available for appointments and to return telephone calls from Quimby.
- In July 1999 Frankenfield met with Quimby in his office and had him sign papers to initiate the bankruptcy process telling him he would file the paperwork to finalize the matter.
- As time went by and Quimby heard nothing on the bankruptcy from Frankenfield, in September of 1999 Quimby called the Bankruptcy Court in Bangor only to learn that no bankruptcy petition had ever been filed.
- Frankenfield has been a Maine attorney since 1995, and he has no prior disciplinary record.
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Elizabeth A. Morrow is reprimanded for her violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by her as found in Massachusetts' Order of Public Reprimand dated June 21, 2007.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Wayne R. Murphy is reprimanded for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by him as found in Massachusetts' Order of Public Reprimand dated May 1,2007.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Jennifer R. Raymond is indefinitely suspended from practicing law in Maine for her violations of those portions of Maine's Code of Professional Responsibility, namely, Bar Rules 3.2(f)(3) and 3.6(a)(2)(3), that are analogous to her violations of Massachusetts Rules of Professional Conduct as found in the Massachusetts Court's Order dated February 6, 2008. Ms. Raymond may not return to practice in Maine until she has petitioned for and achieved reinstatement pursuant to M. Bar R. 7.3(j).
The Defendant shall obtain the informed written consent of his clients in all cases where M. Bar R. 3.4(c)(2) otherwise permits simultaneous representation of clients;
The Defendant's fee agreements with all of his clients shall be in writing;
If after due notice and hearing the Court finds that the Defendant violated or failed to comply with any provision of this order, the Court may enter any additional order necessary or appropriate to protect the public, including but not limited to imposing the unsuspended portion of his suspension;
Bar Counsel may file an information against the Defendant directly with the Court concerning any professional misconduct occurring subsequent to the date of this order without the necessity of a Grievance Commission hearing, provided however that any such misconduct is first reviewed by the Grievance Commission pursuant to M. Bar R. 7.1(d);
The Defendant's thirty (30) day unsuspended portion of his suspension shall begin on September 1, 2001, and he shall comply with the notification and reporting requirements of M. Bar R. 7(i) by that date; and
With the exception of the Defendant's unsuspended portion of his suspension, all provisions of this order shall be effective on the date of this order.
Respondent Vanessa A. Bartlett (Attorney Bartlett) of Brunswick, County of Cumberland, State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Bartlett was admitted to the Maine bar in 1999. She is in private practice, having an office at 173 Park Row in Brunswick, Maine.
On April 21, 2003, Alan J. Wells (Mr. Wells) retained Attorney Bartlett to handle two family matters in District Court. One matter was a divorce; the other matter was a post-judgment motion for modification of child support obligations.
On March 12, 2004, Mr. Wells complained to the Board of Overseers concerning Attorney Bartlett?s performance as his counsel.
Upon its review of Bar Counsel?s investigation of that complaint, on July 1, 2004, Panel C of the Grievance Commission found probable cause that misconduct by Attorney Bartlett subject to sanction under the Bar Rules had occurred and directed Bar Counsel to prepare and present a formal petition for disciplinary action.
Attorney Bartlett?s conduct violated the Maine Bar Rules in two ways:
- Neglect: Attorney Bartlett neglected one of the two matters she was handling for Mr. Wells, in violation of M. Bar R. 3.6(a)(3) (neglect of a legal matter entrusted to the lawyer). Specifically, on August 6, 2003 Attorney Bartlett filed a post- judgment motion for modification of child support, but she failed ever to have that motion served upon the opposing party.
- Obligations concerning the client file: Attorney Bartlett mishandled the transfer of Mr. Wells? legal matter to successor counsel. When Mr. Wells retained successor counsel to handle the post-judgment motion for modification of child support, Mr. Wells asked Attorney Bartlett to provide him with a copy of his client file. Mr. Wells made his first request for his file in January 2004. After Attorney Bartlett discovered that she had misplaced the file and was unable thereafter to locate it, Attorney Bartlett avoided explaining these circumstances until March 2004, despite interim follow up requests from Mr. Wells and successor counsel. This conduct violated M. Bar R. 3.6(a) (a lawyer must employ reasonable care and skill; apply best judgment; be punctual in professional commitments; keep the client informed) and M. Bar R. 3.6(e)(2)(iv)(as requested by a client, a lawyer shall promptly deliver the property in the lawyer?s possession that the client is entitled to receive).
- Attorney Bartlett?s misconduct as described above occurred during a time period when she had no support staff, was moving her office and was changing the plan of management of her law practice. Since opening her new office on Park Row in Brunswick in May 2004, Attorney Bartlett has effectively and significantly improved her law practice management, as described below.
- Since May 2004, Attorney Bartlett has employed full-time, experienced clerical staff; her files are maintained on location; client financial records are updated on a reliable computer data base designed to support a law practice; internal law office communications are regular; client communications are regular; and continuing legal education is planned in advance through membership in the Maine State Bar Association?s CLE Club.
- Attorney Bartlett engaged in professional misconduct during her representation of Mr. Wells in 2003. On August 6, 2003 Attorney Bartlett filed a post-judgment motion for modifications of child support, but she failed ever to have that motion served upon the opposing party. This conduct violated M. Bar R. 3.6(a)(3) (neglect of a legal matter entrusted to the lawyer).
- Attorney Bartlett engaged in professional misconduct during her representation of Mr. Wells in 2004. When Mr. Wells obtained successor counsel to handle the post-judgment motion for modification of child support, Mr. Wells asked Attorney Bartlett to provide him with a copy of his client file. Mr. Wells made his first request for his file in January 2004. After Attorney Bartlett discovered that she had misplaced the file and was unable to locate it, Attorney Bartlett avoided explaining these circumstances until March 2004, despite interim follow up requests from Mr. Wells and successor counsel. This conduct violated M. Bar R. 3.6(a)(a lawyer must employ reasonable care and skill; apply best judgment; be punctual in professional commitments; keep the client informed) and 3.6(e)(2)(iv) (as requested by a client, a lawyer shall promptly deliver the property in the lawyer?s possession that the client is entitled to receive).
should not have counseled one client not to divorce another client, and/or, after doing so, should have immediately withdrawn;
incorrectly analyzed the tax refund issue;
incorrectly analyzed the right of the Lancasters to retain vis-a-vis the Trustee in Bankruptcy their tax refund;
failed to discuss with his clients that he had indicated in their petition that they would be reaffirming their $4700 debt to him;
inappropriately appeared at Christopher's Creditors' Meeting on October 28, 2002 representing Christopher's former father-in-law (Pritchard); and
inappropriately wrote to the IRS on October 30, 2002 repeating allegations of fraudulent conduct by Christopher and characterizing Mariah as an "innocent spouse."
On or about May 21, 1999 in a Per Curiam decision, the Maine Law Court decided Worrey v. Fournier, et al., 1999 Me. 78, 729 A.2d 907 (Me. 1999).
Brown was the attorney for the Plaintiff-Appellant, Wayne B. Worrey, and the case was a collection matter brought by Worrey against Fournier for electrical work performed.
In Worrey, the Law Court:
- Affirmed an order entered in the Cumberland County Superior Court dismissing Worrey's case against Fournier for want of prosecution pursuant to M. R. Civ. P. 41(B)(1);
- Held that a trustee's disclosure under oath pursuant to M. R. Civ. P. 4 (B)(e) was insufficient to prevent dismissal of an action pursuant to M. R. Civ. P. 41(B)(I);
- Ruled that Worrey?s appeal was a frivolous, egregious abuse of the appellate process, that it had been instituted primarily for the purpose of delay and was taken with no reasonable likelihood of success; and
- Awarded treble costs to Fournier plus $200.00 towards his counsel fees.
- In representing Worrey, Brown:
- Neglected Worrey's case against Fournier by allowing it to be dismissed by the Superior Court for want of prosecution pursuant to M. R. Civ. P. 41(B)(1); and
- Did not adequately and sufficiently communicate with Worrey about his case including failing to inform him of the Superior Court's prospective and ultimate dismissal of his case and of Brown's later frivolous appeal of that dismissal.
- Brown's neglect of Worrey's case, his later frivolous appeal of the Superior Court's dismissal of the matter, and his failure to timely communicate with Worrey about case developments violated M. Bar R. 3.1(a); 3.2{f)(4J; 3.3(a}; 3.6(a)(2),(3).
- On or about 1989 Bernard Carson (Bernard) and his wife Nancy Carson (Nancy) opened Carson's Family Restaurant (The Restaurant) in Scarborough, Maine.
- In the fall of 1995, the Carsons retained Brown to advise them about the operation of the Restaurant, which then was experiencing financial problems.
- On or about November 16, 1995 Brown filed a Chapter 13 Bankruptcy Petition for Nancy and Bernard, the Standing Chapter 13 Assistant U.S. Trustee being Peter C. Fessenden, Esq. (Fessenden).
- On or about September 29, 1998 the Bankruptcy Court ordered that the Carsons' Chapter 13 proceeding be converted to a Chapter 7 case effective September 11th.
- On or about January 15, 1999 Fessenden filed an adversarial proceeding to deny the Carsons a discharge from their debts.
- During the course of Brown's representation of Bernard and Nancy in the Chapter 13, 7 and Adversarial matters he violated M. Bar R. 3.1(a}; 3.2(1)(4); 3.3(a); 3.4(1)(1), (2)(i)(A),(B) & (C); 3.5(b)(2)(ii)-(iii); 3.6(a)(I),(2) & (3); and 3.6(1) by engaging in multiple misconduct including but not limited to the following:
- Brown failed to monitor the Carsons' accumulation of post petition debt, including unpaid sales taxes, and he was unaware in the late summer, early fall of 1998 that the Carsons had accrued approximately $100,000.00 in post petition trade debt and post petition sales tax liability of $20,000.00 to $30,000.00.
- Brown never advised the Carsons that as debtors in possession, they had fiduciary responsibilities to both their pre-petition and secured creditors.
- Brown failed to monitor the Carsons on their obligation to submit regular, periodic reports to Fessenden, a failure caused by Brown's sloppy office procedures.
- Brown drafted and prepared a will for Bernard, presided over its execution, and then later billed Bernard $364.00 for those legal services without ever disclosing any of these matters to Fessenden or to the Bankruptcy Court as he should have done under Federal Rule of Bankruptcy Procedure 2016 and Maine Bankruptcy Rule 2016-1.
- At the same time Brown drafted Bernard's will, he also drafted a promissory note in the amount of $50,000.00 payable to Brown, which Bernard also signed, Brown again never disclosing any of this to the Bankruptcy Court or to Fessenden as he was required to do under Federal Rule of Bankruptcy Procedure 2016 arid Maine Bankruptcy Rule 2016-1.
- Several times during his handling of the Carsons' Bankruptcy cases, he had communications with a creditor of the Carsons, which were not known by or consented to by the attorney representing that creditor.
- Although Fessenden later orally withdrew motions that he made in the adversarial proceeding for a Default and Default Judgment pursuant to Federal Rule of Bankruptcy Procedure 7055, Brown never timely answered or otherwise responded to the motions.
- On May 13, June 17, 1999 and on two other occasions the Bankruptcy Court held pretrial conferences in the adversarial proceeding, but Brown did not attend or participate in them despite being timely informed of the conferences in advance. Additionally, neither Bernard nor Nancy appeared for the conferences because Brown never notified the Carsons of them.
- Brown did not file any stipulations or premarked exhibits pursuant to the Bankruptcy Court's scheduling order, and he also failed to file any objections to Fessenden's stipulations and exhibits.
- Neither Brown nor the Carsons ever appeared for trial, which was set for September 16, 1999, Brown having failed ever to advise the Carsons of that trial crate or the earlier scheduled one, August 25th.
- On or about September 24, 1999 the Bankruptcy Court entered an order denying the Carsons a discharge, that discharge later being set aside upon motion by the Carsons' successor counsel, Richard P. Olson, Esq.
- In the year 2000 Beatrice E. Robenson (Robenson) was diagnosed with cancer, and her nephew, Andrew Germaine (Germaine) assisted her in putting her personal affairs in order.
- Robenson also hired Brown to revise her will and draft other related documents for her eventual signature. Because of her illness, Brown's work for Robenson was time sensitive.
- Because of Brown's neglect of Robenson's matters and his multiple failures to timely communicate with her and Germaine about them, Robenson did not execute her new will and related documents until on or about February 9, 2001.
- The will Brown drafted for Robenson and had her sign bequeathed a significant amount of her property directly to her sister, Rita A. Litton (Litton), who then resided in a nursing home.
- The federal and state governments' Medicaid Program (Medicaid) paid for either all or a substantial amount of Litton's nursing home care.
- On or about May 29, 2001 Robenson died.
- The amount of property Litton directly received through Robenson's will caused or will cause her to exceed, at least temporarily, Medicaid's eligibility criteria for income or assets. This effect, unanticipated or provided for by Brown, resulted or will result in Litton's having to "spend down" the property Robenson left to her so that she again could qualify for Medicaid assistance.
- Alternatively, Brown could and should have drafted a "Supplemental Needs Trust" for Robenson, thereby avoiding the Medicaid spend down effect on Litton as long as Litton could not have compelled any trustee of such a trust to spend trust funds for her own support.
- Robenson's will named Germaine as the Personal Representative (PR), and shortly after her death, he retained Brown to assist him in his duties as Robenson's PR.
- In the middle of November, 2001 Germaine discharged Brown and hired other counsel because of Brown's chronic and continuing failures to communicate with him about Brown's work on Robenson's estate.
- By engaging in the above described misconduct during the course of his representation of Robenson and Germaine, Brown violated M. Bar R. 3.1(a); 3.2(f)(4); 3.3(a) & 3.6(a)(1),(2) & (3).
- In late 2000 or early 2001 Vincent Son (Son) entered into an agreement to buy some land in Old Orchard Beach, Maine, and paid the prospective seller a deposit in the amount of $15,000.00.
- The seller later either refused to timely close the real estate transaction, could not satisfactorily close it or failed to return Son's deposit of $15,000.00.
- On or about January 22, 2001 Brown began representing Son in the matter to try to recover his $15,000.00 deposit.
- Son paid Brown an initial retainer of $2,600.00.
- Brown neglected his legal work for Son, failed to complete it and he has not timely communicated with Son about it.
- Son still has not had his deposit returned to him or otherwise adequately resolved his legal problems over the failed real estate transaction.
- By engaging in the above described misconduct during his representation of Son, Brown violated M. Bar R. 3.1 (a); 3.2(1)(4); 3.3(a) & 3.6(a)(1),(2) & (3).
- On or about June 4, 2001 Juli Hughes (Hughes) retained Brown, and paid him $700.00 to file a Chapter 7 Bankruptcy Petition for her, which he did not file until November 14th (Chapter 7- Case No. 01-21800).
- On or about March 14, 2002 Brown filed an adversary proceeding against the U.S. Department of Education on behalf of Hughes, and that proceeding remains pending (Adversary Proceeding Case No. 02-2026).
- On April 3, 2002 Hughes received a discharge concerning her Chapter 7 Bankruptcy Petition.
- During the course of his representation of Hughes, Brown neglected his work for her, failed to timely complete it and he did not adequately communicate with her about it, including the adversary proceedings. He also did not appear with her at the Meeting of Creditors scheduled under Federal Rule of Bankruptcy 2003.
- By engaging in the above described misconduct during his representation of Hughes, violated M. Bar R. 3.1(a); 3.2(f)(4); 3.3{a) & 3.6(a)(1),(2) & (3).
- Attorney Ralph W. Brown is suspended from the practice of law in the State of Maine for a period of six (6) months effective the date of this order;
- The Court does not intend to suspend Brown for longer than six months or to impose on him full reinstatement provisions and procedures of M. Bar Rule 7.3(j). After his six month suspension, however, Brown may elect at any time to be placed on inactive status. Regardless of any change in his status as a Maine attorney, however, Brown shall not resume practicing law without further order of this court concerning appropriate conditions to be imposed on him and his practice, including restitution, if any, to the above referenced clients.
- Within 30 days of his suspension, Attorney Brown will comply with the notification and filing requirements of Maine Bar Rule 7.3(i).
- GCF #05-405 Public Reprimand dated May 19, 2004.
The Bangor District Court (Gunther, J.) initially brought this complaint matter to the Board?s attention based upon Attorney Bean?s failure to follow through with an agreement to provide a very modest settlement amount ? $250.00 ? to Attorneys Hodsdon?s and Smith?s client, Concord Group Insurance Company.
In the Bangor District Court matter of Concord Group Insurance Co. vs. Charles R. Bean, Esq., Concord was the insurer for Elise York and had paid $4,433.62 to her for damages caused to her motor vehicle in a motor vehicle accident caused by the negligence of Michael Totman on March 19, 1998.
By its subrogation action, in January 1999 Concord Group obtained judgment in the amount of $4,433.62. In his capacity as counsel for Mr. Totman, by letter dated February 7, 2002 to Concord?s attorney, Charles Hodsdon, Attorney Bean requested a release from Attorney Hodsdon.
After having a telephone conversation with Attorney Bean on February 8, 2002, Attorney Hodsdon received a letter from Attorney Bean indicating Mr. Totman was going to file bankruptcy, and enclosing a check in the amount of $250.00 as a proposed settlement offer with the explanation that his client wished to obtain his license and right to operate as soon as possible. However, that check was drawn on a personal account. As a result, on February 13, 2002, Attorney Bean spoke to Attorney Smith and indicated a $250.00 bank check or check from his trust account would replace that earlier personal check.
On behalf of Attorney Hodsdon, Attorney Smith timely delivered that release to Attorney Bean by letter dated February 15, 2002 on the expressly stated condition and mutual agreement that the release would be held in escrow by Attorney Bean until he replaced that personal check with a bank check, money order or check from his office?s escrow account to Attorney Hodsdon or Attorney Smith in the amount of $250.00 to settle Concord?s outstanding judgment.
Such a condition was critically important to Attorney Hodsdon and Attorney Smith, in light of the fact that they knew Totman was about to file for bankruptcy, which would cause his debt to Concord to be discharged.
On June 28, 2002 Attorney Hodsdon received a copy of the Notice to Creditors regarding Mr. Totman?s bankruptcy, but Attorney Bean had still not tendered the proper $250.00 payment as promised.
On July 1, 2002 Attorney Hodsdon spoke with Attorney Bean who assured him that the failure to send the check for $250.00 was an oversight that would be then corrected.
On July 24, 2002, Attorney Hodsdon wrote to Attorney Bean regarding this matter, but Attorney Hodsdon received no response. On September 10, 2002, Attorney Hodsdon again wrote to Attorney Bean regarding the matter, but still received no response. On January 28, 2003, Attorney Hodsdon sent Attorney Bean an acknowledgment of service, but it was not returned to Attorney Hodsdon. On April 28, 2003, Attorney Hodsdon received an answer to the complaint he served on Attorney Bean. Thereafter, Attorney Hodsdon has received no further communication from Attorney Bean. On May 20, 2003, Attorney Hodsdon served Attorney Bean with a request for admissions. Attorney Bean did not respond. On June 25, 2003, Attorney Hodsdon filed a Motion for Summary Judgment to which Attorney Bean did not object.
Concord?s Motion for Summary Judgment against Attorney Bean was granted by the court, but that judgment that was so entered has not been satisfied by Attorney Bean.
Thus, Attorney Bean never followed through to pay that $250.00 settlement amount but was aware that the release had been improperly used to allow Mr. Totman to obtain his motor vehicle license back from Maine?s Secretary of State?s Office.
By respective letters dated August 1 and September 19, 2003, Attorney Bean was notified and directed to respond to Bar Counsel concerning this complaint matter as filed by Judge Gunther. Attorney Bean?s response thereto was initially due to be received by Bar Counsel on or before August 22, 2003. Attorney Bean failed to so respond by that date, in violation of M. Bar R. 2(c). Bar Counsel?s subsequent certified letter of September l9, 2003 notifying him of that Rule 2(c) violation, was received by Attorney Bean.
Attorney Bean still failed to timely respond to Bar Counsel, only doing so by his belated letter of October 15, 2003 (with enclosures), despite having been earlier informed that the Grievance Commission Panel?s preliminary review of this complaint matter was to occur forthwith on October 17, 2003.
The underlying pleadings and resulting court action in this matter set forth misconduct by Attorney Bean involving at least misrepresentation in violation of M. Bar R. 3.2(f)(3) and conduct prejudicial to the administration of justice in violation of M. Bar R. 3.2(f)(4).
Having obtained and benefited from one part of a negotiated settlement, i.e. the execution of Concord Group?s Release Document, Attorney Bean failed to comply with his obligation under that agreement and did not forward the required $250.00 payment to Attorney Smith. His conduct in that regard was again in violation of M. Bar R. 3.2(f)(3)(4).
- Attorney Bean now agrees and has admitted to this Panel that he engaged in professional misconduct by misrepresenting to counsel that upon receipt of that release he would remit that $250.00 bank check. His failure to do as agreed and promised was certainly conduct prejudicial to the administration of justice and conduct that involved misrepresentation and was unworthy of an attorney.
- Attorney Bean has no prior disciplinary record with the Board.
- Attorney Bean has now remitted that $250.00 and also provided restitution to Attorney Hodsdon for the costs associated with the litigation he had to initiate against Attorney Bean due to Attorney Bean?s failure to make that earlier agreed payment.
- Based upon his stated remorse and agreement that his grossly dilatory action in this matter did constitute serious misconduct in violation of the Code of Professional Responsibility, the Panel concludes that the appropriate disposition of this case is a public reprimand which is now hereby issued and imposed upon Attorney Charles R. Bean.
Ronald L. Bishop, Esq. is suspended from the practice of law in Maine for one-year, with all but 90 days of that suspension being suspended, to commence on June 1, 2001;
By June 1, 2001, Bishop will have complied with the notification and filing requirements of Maine Bar Rule 7.3(i);
On or before April 2, 2001, Bishop shall reimburse Kerns the remaining balance from her settlement check of $3,317.64, plus $525.80 interest, totaling $3,843.44;
Starting upon Bishop's return to practice on September 3, 2001, his practice shall be mentored through May 31, 2002 in the following manner:
- There shall be a Court-approved plan for professional supervision of Bishop's law practice by an attorney mentor in order to avoid neglect of any client's affairs; and
- Commencing on or before September 3, 2001, a certified public accountant (CPA) shall supervise and review Bishop?s financial records on a monthly basis. Such review shall include the ledger cards, journals, and other documentation for Bishop?s law firm client trust account, including but not limited to the journals and the bank statements relating to that client trust account. In addition, such reviews shall also include the operating account and payroll account journals and related bank statements. That CPA shall issue a report to Bar Counsel within ten days from the date such records are posted each month confirming that any and all funds advanced by clients to Bishop?s law firm, whether for costs, fees, or distribution, are being properly maintained in the client trust account and that no commingling of funds from any accounts has occurred, and that all bills are paid; and
- On or before May 15, 2001 the parties shall provide the Court with the supervision plan required by paragraph 4(i) and verification that the agreed upon respective designated attorney and accountant mentors have been selected and will so serve.
Attorney Jordan, the Defendant, represented himself in that divorce;
On December 4, 2007 an agreed Interim Order of Court had been issued giving Plaintiff Darcy Jordan exclusive possession of the marital home;
After the date of that Order, Attorney Jordan remotely accessed his wife?s private personal e-mail from her computer at the marital home;
That e-mail account contained many private e-mail communications between Plaintiff Darcy Jordan and her attorney, including trial preparation material;
Attorney Jordan knew he had not been given permission to access his wife?s personal private e-mail; and
At the contested divorce proceeding, Attorney Jordan actively sought to use Darcy Jordan?s email information in the presentation of his case to Judge Goranites, agreed under oath that he had reviewed that e-mail account including communications between Darcy Jordan and her attorney, and had copied private e-mails.
Respondent Pamela Ames (Ames) of Waterville, County of Kennebec, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Ames was admitted to the Maine bar in 1980 and is a member in good standing. She is a solo-practitioner and her private practice includes a variety of civil and criminal law cases.
On September 28, 2005 Attorney Elam filed a complaint with the Board against Attorney Ames alleging that Ames conveyed contraband to a Maine Correctional Center (MCC) inmate, "A.G.".
As a juvenile, A.G. had formerly been fostered by and a client of Attorney Ames. The two had remained close and Ames occasionally visited A.G. at the MCC. Following A.G's request, Ames agreed to send and then later bring specific items to A.G. at the MCC. Those items included photographs, magazines, stamps and a personalized watch.
Although the items by themselves may not have appeared to be illegal, Ames' giving them to A.G. while she was incarcerated resulted in violations of the MCC's rules.
On October 24, 2005, Attorney Ames filed her response to the complaint, providing background information on her relationship with A.G. and largely admitting her actions of violating correctional center policies.
Given her years of experience as an attorney, including many years as an Assistant District Attorney, Attorney Ames should have known that her gifts to A. G. would result in those violations.
On February 28, 2006 the complaint and responses were reviewed by a Panel of the Grievance Commission. The panel found that probable cause existed that Attorney Ames had engaged in misconduct subject to sanction under the Bar Rules. The Panel directed Bar Counsel to prepare and file a formal Disciplinary Petition before another panel of the Grievance Commission.
Attorney Ames has conceded that it was wrong for her to send and/ or convey the prohibited materials to A.G. She has acknowledged that by her actions she violated the MCC's policies and modeled inappropriate behavior for A.G.
After discussion between the parties, the Board filed a Stipulated Disciplinary Petition on June 4, 2007. The parties generally agreed to a finding of misconduct as referenced in the Petition.
To that end, Attorney Ames acknowledges that she violated the following provisions of the Code of Professional Responsibility:
The Motion for Temporary Suspension is GRANTED. Thomas R. Acker, Esq., Me. Bar # 3881 is suspended from the practice of law pending further order of the Court.
The Court takes no action with respect to Attorney's Acker's request to resign from the Maine Bar. The requested resignation will be considered together with Board's petition.
Attorney Acker may file an answer to the Board's petition on or before January 6, 2006. The Board may file a written response, if it so desires, on or before January 30, 2006.
The Board may file a motion for appointment of counsel pursuant to M. Bar R. 7.3(f) on or before January 6, 2006. Attorney Acker may file a written response, if he so desires, on or before January 30, 2006.
A pretrial conference shall be held on February 3, 2006, at 10:00 a.m.
Attorney Bos shall pay to the monitor reasonable compensation for his services, including reimbursement of all costs.
Attorney Bos will meet with Attorney Glazier at Attorney Glazier's calling and convenience, on a bi-weekly basis, unless Attorney Glazier determines that more or less frequent meetings are appropriate.
Attorney Glazier shall have the right to withdraw and terminate his services at any time for any reason he deems necessary. If he does so, he shall notify Bar Counsel and Attorney Bos of his withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by Bar Counsel.
If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules, Attorney Glazier may adopt anyone of the following courses with the proposed result:
- Attorney Glazier ceases to act as monitor and a potential conflict is avoided.
- Attorney Glazier continues as monitor, but totally excludes Attorney Bos' client's matter from the monitoring process, so that no conflict is deemed to exist.
- Attorney Glazier continues as monitor, but withdraws from the conflicted matter.
- Attorney Glazier continues as monitor, and obligates Attorney Bos not to participate in the matter and to promptly obtain replacement counsel for his client(s).
- If in Attorney Glazier's judgment it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Attorney Bos' reports to him.
- Attorney Glazier shall have no contact with any of Attorney Bos' clients, Attorney Glazier's only contacts in the performance of his monitoring duties shall be with Attorney Bos or other persons contemplated by this decision.
- Attorney Glazier's participation in the disposition of Attorney Bos' disciplinary case and monitoring of Attorney Bos' practice shall be deemed not to create an attorney-client relationship between Attorney Bos and Attorney Glazier or between Attorney Glazier and Attorney Bos' clients. Specifically, Attorney Glazier shall be deemed not to represent Attorney Bos or any of Attorney Bos' clients or to be employed by them in any capacity and Attorney Glazier shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to Attorney Glazier's monitoring of Attorney Bos' practice, and to the extent permitted by law, Attorney Glazier shall be immune from any civil liability (including without limitation, any liability for defamation) to Attorney Bos or any of Attorney Bos' clients.
- Attorney Glazier will have the authority to review and examine any of Attorney Bos' files, except those in which Attorney Glazier might have adverse interests under paragraph 5.
- Attorney Bos shall prepare and present to Attorney Glazier reasonably in advance of each meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof.
- Attorney Glazier will, as soon as practicable, have Attorney Bos establish a method of objectively identifying delinquent client matters and have him institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- Attorney Glazier shall file a confidential report with Bar Counsel every three months or sooner if Attorney Glazier deems it necessary, with a copy to Attorney Bos and Bar Counsel concerning at least the following subjects:
- measures Attorney Bos has taken to avoid delinquencies;
- a description of any client matter identified as delinquent;
- and any professional assistance Attorney Glazier has provided to Attorney Bos.
- Attorney Glazier shall have the duty to report to Bar Counsel any apparent or actual professional misconduct by Attorney Bos of which Attorney Glazier becomes aware or any lack of cooperation by Attorney Bos in the performance of this disposition.
- ln the event that Attorney Glazier reports any apparent or actual professional misconduct or lack of cooperation by Attorney Bos, this matter shall be scheduled for further hearing on request of Bar Counsel.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Valeriano Diviacchi is reprimanded for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by him as found in Massachusetts' Order of Public Reprimand dated June 21, 2007.
Petitioner is the Board of Overseers of the Bar (Board).
The Board avers that Respondent Charles R. Oestreicher, Esq., (Oestreicher) of Portland, County of Cumberland, and State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
As set forth below, Oestreicher has engaged in conduct unworthy of an attorney under the Maine Bar Rules.
On March 19, 1987, Nicholas Hubby (Hubby) engaged Bruce Bergen (Bergen), a partner at the law firm of Verrill & Dana, to represent him in his effort to purchase property off the Shore Road in Cape Neddick, Maine. An issue in that matter included advising Hubby as to the strength and validity of the right of way through the land that completely surrounded Hubby's prospective purchase.
The adjacent land included a farm called Cucklebottom Farm (the Farm) owned by Richard and Kathryn Thornburgh (Richard, Kathryn or the Thornburghs).
Hubby's access to that property is over a right-of-way along a driveway through the Farm property.
As early as 1987, Hubby started to explore ways to acquire the Farm property, partly in order to protect the right-of-way to his own property.
Hubby asked Bergen for legal advice, and Bergen asked for and received legal advice and information from his law partner, Oestreicher, concerning Hubby's plans.
Between 1987 and 1992 Hubby learned that the Thornburghs' Wills provided for the Farm to be placed in trust for the benefit of their daughter, Margaret.
During this time, Hubby continued to request and receive advice and information from Bergen about Hubby's plans to purchase the Farm when it became available for sale.
In 1992 Richard died leaving his entire estate to Kathryn.
In 1994 Kathryn died.
Margaret became Co-Personal Representative of Kathryn's Estate along with Jed Grover (Grover).a neighbor of Hubby.
A trust that was to hold title to the Farm was established in Kathryn's Will, with Margaret and Grover named as Co-Trustees.
John Kugler, Esq. (Kugler) represented Margaret as Co-Personal Representative of Kathryn's Estate.
During the summer of 1994, Bergen represented Hubby in his efforts to purchase the Farm, and in that context corresponded with Kugler.
During that period of time, Hubby told Bergen of a request by an abutter of the Farm that Hubby sell to that abutter a small piece of the Farm for a backyard. Hubby indicated to Bergen his concern and question as to whether such a "subdivision" would be legal.
In August of 1994, Hubby and Margaret agreed upon his purchase of the Farm, and each signed a separate copy of the same Purchase and Sale Agreement as prepared by Bergen.
As a result of Bergen's long-standing practice of taking a vacation the first two weeks of August and his resulting absence, at Bergen's request on or about August 1, 1994 Oestreicher became directly involved and covered the transaction concerning Hubby's proposed purchase of the Thornburgh property. Oestreicher had no prior involvement in this transaction, but had been previously involved in Hubby's property matters in assistance to Bergen.
Each party was to provide a copy of the Purchase and Sale Agreement to their respective attorneys, Hubby to Oestreicher and Margaret to Kugler, but the exchanges between attorneys did not actually occur, although both parties had agreed to its terms at this point.
Hubby subsequently orally proposed a reduction in price of $5,000.00 to Margaret.
At about that same time, i.e. during the summer of 1994, Kathryn Weare, owner of The Cliff House in York, was privately negotiating with the Kennebunk, Kennebunkport & Wells Water District (KK&WWD) and the Ogunquit Sewer District to have water and sewer line run down the Shore Road to service and benefit The Cliff House.
Verrill & Dana then acted as General Counsel to The Cliff House, with Michael Healey, Esq. of that firm specifically representing Weare in those negotiations with KK&WWD and the Ogunquit Sewer District.
In August and September of 1994, Hubby and some of his neighbors learned of Weare's plans and then formed a neighborhood coalition to obtain facts and information about KK& WWD's plans for the Shore Road, including the planned extension of water and sewer lines to The Cliff House.
Hubby was listed as nominal head of that coalition. The coalition retained Joseph Donahue, Esq. of the Portland law firm of Preti, Flaherty, Beliveau & Pachios to represent them before the Public Utilities Commission.
As a result, Healey, on behalf of Weare, served Hubby, represented by Oestreicher in Bergen's absence, with a request for information concerning his proposed purchase of the Farm. Weare thereafter became interested in purchasing the Farm.
With respect to the sale transaction, in early September, Oestreicher left a telephone message for Hubby stating that Grover was objecting to any sale to Hubby.
Hubby then informed Oestreicher that he was upset about the lack of direct communication as to the reversal of Margaret's intentions at this stage of the sale process.
At this time, two of Verrill & Dana's current clients, Hubby and Weare, had interests adverse to each other concerning a common subject matter of simultaneous, opposing representation - purchase of the Farm.
On or about September 25, 1994 Verrill & Dana attorneys properly advised each of those clients that they each needed different independent counsel from other firms on the matter of purchasing the Farm.
Hubby was never able to purchase the Farm, and on February 15, 1995, Weare, represented by Bruce Leddy, Esq. did purchase it.
The sale of the Farm was a component of a general refinancing for Weare which was handled by Oestreicher, e.g. he recorded the documentation that resulted from that refinancing.
When Weare offered the Farm for resale in 1995, she intended to retain the title to the land over which Hubby's right-of-way passed.
Weare then sold the Farm in a manner contrary to Hubby's interests and stated desires, namely, by her retention of the fee of his driveway. In that context, without the informed written consent of his former client, Hubby, from May 3 to August 28, 1995 Oestreicher provided legal services to Weare regarding the resale of the Farm, including issues having to do with the subject matter of the right of way.
Hubby offered to buy the Farm or just the right of way from Weare, but she rejected his offer and instead sold the Farm to a third party, Ann Gallop.
Oestreicher was Weare's attorney for that resale of the Farm to Gallop on August 28, 1995.
In that regard, Oestreicher knew that one of the conditions of that sale was that Weare would reserve title to the land over which Hubby's right of way passed.
Oestreicher drew up the description for the Seller's Deed, and by the terms thereof specifically reserved title to the real estate underlying Hubby's right of way.
Oestreicher had assisted Bergen in his representation of Hubby in his attempts to purchase the Farm in order to preserve the right of way to his property.
At the time of the resale of the Farm, another attorney at Verrill & Dana was still representing Hubby in an unrelated small subrogation matter.
Oestreicher did not disclose to Hubby that he was representing Weare in the resale of the Farm, and also failed to seek Hubby's written consent to his representation of Weare as required by the conflict of interest provisions of M. Bar R. 3.4(a),(b)(1),(c)(2), and (d)(l)(i).
Oestreicher's representation of Weare in selling the Farm to a third party and including provisions directly adverse to Hubby's interests, e.g. reserving title to the fee beneath Hubby's right of way, was conduct in conflict with Hubby's interest in purchasing the Farm and the right of way to his property, including representation of Weare on issues for which Oestreicher had previously represented Hubby's adverse interests.
The parties agree that Oestreicher's conduct was in violation of M. Bar R. 3.1(a) and 3.4(a)(b)(c) and (d).
Oestreicher has no prior disciplinary record.
Petitioner is the Board of Overseers of the Bar (Board).
Respondent Thomas J. Pelletier, Esq. (Pelletier) of Caribou, County of Aroostook, and State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine, and thereby subject to the Maine Bar Rules.
As set forth below and agreed, Pelletier engaged in conduct unworthy of an attorney and violated specific portions of the Maine Bar Rules as referenced below:
On or about January 26, 1999 Ms. B. filed a complaint on a pro se basis in the Caribou District Court seeking a Temporary Restraining Order against Mr. G.
A hearing on that matter was scheduled for February 10, 1999 at which time Ms. B. was represented by Pelletier on a pro bono basis.
Pelletier provided proper legal services and representation for Ms. B. in that matter.
A related hearing occurred on February 26, 1999, at which time Pelletier appeared again and provided competent legal services for Ms. B.
At a pre-trial preparation meeting at Pelletier's office on February 25, 1999, Pelletier had commented to Ms. B. that she was attractive a remark made in the context of a discussion that Ms. B's current boyfriend was creating legal difficulties for her.
At the second hearing, Pelletier offered to give Ms. B. a ride to her home in Presque Isle, rather than having Ms. B's grandmother and children wait for Ms. B. in the car at the courthouse in a snowstorm.
During that trip to Presque Isle, Pelletier commented to Ms. B. that she was very attractive, and made other remarks that he should have understood would be interpreted by her to be of an inappropriately casual nature beyond the scope of his representation.
Pelletier has no prior disciplinary record and agrees to stipulate to the entry of this reprimand to avoid occasioning any further difficulty for Ms. B. Mr. Pelletier has expressed his sincere remorse for the difficulties experienced by Ms. B. owing to his conduct.
For his misrepresentations to Mr. A (and indirectly to the Co-Personal Representative) and resulting violation of M. Bar R. 3.2(f)(3), the Court issues a suspension from the practice of law for three months. However, due to Attorney True's remorseful attitude and actions, his filing of a self-report, his acknowledgment of his misconduct, his lack of any prior disciplinary or sanction history during many years of practice, the absence of prior or subsequent acts of misconduct, and his apology to the Court, the execution of that suspension will be stayed for two years. Although such misconduct often results in the Court's appointment of a Monitor to supervise and control the disciplined attorney's conduct during the suspended period of suspension, given Attorney True's previously mentioned remorseful attitude and performance concerning his misconduct, the Court is satisfied it is not necessary to appoint such a Monitor in this instance. Attorney True shall, however, completely comply with Maine's Code of Professional Responsibility. If he should fail to do so, upon receipt of a grievance complaint from any source (including any self-report) alleging unethical conduct by Attorney True, Bar Counsel has the authority to file that matter directly with this Court without any prior review by or hearing before the Grievance Commission and/or to petition this Court to impose a portion or all of that suspended three month suspension;
For his improper payments of funds in violation of M. Bar R. 3.6(e) and for his unrelated conflict of interest violation of M. Bar R. 3.4(c)(2) the Court imposes a dismissal with a warning in each instance; and
As part of its imposition of these sanctions, the Court expects Attorney True will use appropriate financial safeguards and monitoring to avoid any misconduct in the future. Therefore, within forty-five days after the date of this Order, Attorney True shall provide written notice to Bar Counsel of the manner and types of such safeguards installed in his practice. Should he fail to satisfactorily notify Bar Counsel and institute appropriate safeguards, Bar Counsel has the authority to notify the Court of Attorney True's non-compliance with this Order and to file any future claims of misconduct directly with this Court for such action as may be found appropriate.
At all times relevant hereto, Defendant Gordon C. Ayer, Esquire of Kennebunkport, County of York, State of Maine was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
Attorney Ayer is in private practice in Kennebunk, Maine. At the time of the conduct at issue in this case, Attorney Ayer was corporate counsel to Spencer Press of Wells, Maine.
An owner of Spencer Press, 3 John E. Spenlinhauer III (John) was engaged in divorce proceedings with Margaret B. Spenlinhauer. The divorce action was commenced by Ms. Spenlinhauer in the Massachusetts Probate and Family Court in 1988.
John's interest in Spencer Press, a commercial printing enterprise, was a significant marital asset; John's financial status and the valuation of his ownership interest in the enterprise were matters of dispute in the divorce proceeding.
By agreement, the divorce action was referred to arbitration. The assigned arbitrator heard the case in 1991; issued a draft of proposed findings and decision in 1993; and released final findings and decision in early 1998.
Thereafter, Massachusetts counsel acting for John brought a motion before the Probate Court in Massachusetts to have the arbitrator's final findings and decision adopted by the Court.
After John's Massachusetts divorce counsel was suspended from the practice of law for matters unrelated to the divorce proceedings, Attorney Ayer was admitted pro hac vice with the Massachusetts Probate and Family Court.
Within days after the arbitrator issued his final findings and decision, Ms. Spenlinhauer obtained additional bank documents, which she had been seeking for years, for an account that she asserted was relevant to the divorce, Account No. 01-8708-9 at Massachusetts Bank and Trust Company, referred to during the Spenlinhauer divorce litigation as the "-9 account." The funds in that account derived primarily from checks issued to Spencer Press from United Paper Stock Company, a Rhode Island waste paper processor. The documents had been tied up in an unrelated proceeding involving the Bank.
The bank documents obtained supported Ms. Spenlinhauer's assertion that the -9 account was a business account owned by Spencer Press. Throughout the divorce proceedings, John had consistently maintained that the -9 account was the personal account of his brother Stephen P. Spenlinhauer (Stephen). John represented that he had no interest in and derived no benefit from the -9 account. It was not until after Attorney Ayer learned the true nature of the account from a third party that John admitted that it was a business account owned by Spencer Press and that it benefited him.
On March 27, 1998, based primarily on the new information about the -9 account, Ms. Spenlinhauer filed a motion in the Probate Court to reopen and recommit the matter to arbitration.
After reviewing Ms. Spenlinhauer's motion, Attorney Ayer made inquiries of John, Stephen and the Company's accountant, John Parent (Parent). At that time, all three maintained that the -9 account was Stephen's personal account. 4
Attorney Ayer drafted a memorandum to the Probate Court, including supporting affidavits from John, Stephen, and Parent in opposition to Ms. Spenlinhauer's motion and in support of John's motion to confirm the arbitrator's award.
In the affidavits signed by John and Stephen, and in his memorandum, Attorney Ayer described the -9 account as "owned, maintained and controlled" by Stephen.
The response deadline to serve a reply to Ms. Spenlinhauer's motion was Thursday, April 23, 1998. A hearing on both parties' motions was scheduled for Monday, April 27, 1998.
On April 23, 1998, Edmond Nugent, an independent director5 of Spencer Press, asked Parent about the controversy surrounding the -9 account. That afternoon, Parent and Nugent reached Attorney Ayer on his cellular phone while he was driving to Boston to serve and file John's responsive pleadings to Ms. Spenlinhauer's motion. During that call, Parent told Attorney Ayer the truth about the ownership of the -9 account.
As a result of the phone call, Attorney Ayer drove to the Boston office of Attorney Walter May, who had previously represented John in the divorce. Both John and Stephen were in Florida at the time. Attorney Ayer was unable to reach John, but he contacted Stephen, who confirmed Parent's information about the account.
While at May's office, Attorney Ayer altered the first page of both affidavits to remove the word "owned" from their description of the -9 account. Attorney Ayer then printed the revised pages, which indicated that Stephen "maintained and controlled" the -9 account, and substituted the revised pages for the original first pages in the previously signed affidavits. Attorney Ayer did not modify his memorandum. John subsequently confirmed and ratified the change to his affidavit.
Attorney Ayer made no supplemental filings with the court during the two business days available to him before the hearing.
On April 27, 1998, while arguing John's motion to confirm the arbitration award and opposing Ms. Spenlinhauer's request to reopen the case. Attorney Ayer informed the court that Stephen Spenlinhauer was not the owner of the -9 account; that it was a business account of Spencer Press. Ayer stated the following in open court:
- Attorney Ayer also argued on April 27, 1998, that the diversions to the -9 account, the total amount of which was discussed on the record, should be characterized as "insignificant" when considered in light of the gross revenues of Spencer Press for the years in question.
- In October 1998, 6 Ms. Spenlinhauer filed a second complaint against Attorney Ayer. Her two-part complaint was later supplemented by an additional filing through her counsel in August 2005. The August 2005 filing was not timely forwarded to counsel for Attorney Ayer; he did not receive it until October 16, 2007. However, Ayer's counsel notified the Board of Ayer's waiver of any procedural errors committed by the Board.
- Attorney Ayer filed brief responses to the 1998 complaint and, for several years, declined to answer the complaint more fully due to confidentiality issues relating to the pending Spenlinhauer divorce litigation. Throughout those years, and pursuant to Board Regulation #12, the Grievance Commission's preliminary review panel met and repeatedly deferred completion of its review of the Ayer complaint matter. In September 2005, Attorney Ayer retained counsel and provided a full response to the 1998 complaint. When they filed that written response, neither Attorney Ayer nor his attorney was aware of the 2005 filing.
- Despite the lack of response from Attorney Ayer to Ms. Spenlinhauer's 2005 filing, the preliminary review panel finalized its evaluation of both the 1998 filing and the 2005 filing. The only issue that the panel authorized for further disciplinary proceedings was related to Ayer's actions in response to the new information about the -9 account and to Ms. Spenlinhauer's motion to reopen the divorce arbitration. Accordingly, the panel directed Bar Counsel to prepare and file a formal disciplinary petition for a hearing before a different panel of the Grievance Commission. All of Ms. Spenlinhauer's other allegations were effectively dismissed.
- Bar Counsel filed a disciplinary petition against Attorney Ayer on April 4, 2007. Bar Counsel and Attorney Ayer negotiated a stipulated resolution and presented it to the Grievance Commission panel at a hearing in August 2007. Ms. Spenlinhauer attended that hearing, and the panel permitted her to make a presentation objecting to the parties' proposed resolution.
- In September 2007, the panel issued a decision declining to accept the parties' proposal. Because some panel members had lingering questions, the panel set the matter for a supplementary hearing. At that point, Attorney Ayer elected to pursue a waiver of further Grievance Commission hearings. Bar Counsel consented to his request, and this Court approved the waiver and accepted jurisdiction over the matter in December 2007.
Thomas R. Acker (Acker), of Hollis, County of York, State of Maine was duly admitted as an attorney in the State of Maine in 1986 and subject to the Maine Bar Rules.
Pursuant to M. Bar R. 7.3(j) Acker was reinstated to the Maine Bar in 1995, following his voluntary resignation in 1990.
On December 23, 2005 this Court granted the Board's Motion for Temporary Suspension of Acker. At that time, Mr. Acker did not oppose the requested suspension, as he had attempted to resign due to his debilitating mental health conditions. The suspension prohibited him from continuing his legal practice.
A telephonic conference was scheduled in this matter for March 16, 2006. Assistant Bar Counsel Aria eee appeared for the Board of Overseers of the Bar. On that same day, Mr. Acker filed a letter with the Clerk of the Maine Supreme Judicial Court which stated that he had been a patient in the psychiatric ward and as a result, \vas not able to manage his affairs.
Beginning on or about February 27, 2006, Mr. Acker was hospitalized for a period of approximately seventeen days. His then current physical and mental condition was unknown to the Court.
Following the telephonic conference, the Court issued an order which generally continued the evidentiary hearing on the merits of the Board's disciplinary pleadings. However, the Court did set two issues for limited hearing on March 29, 2006. Those issues were the Board's Petition for Appointment of Receiver and proposals for the Court's consideration of Maine Bar Rule 7.3(e) (Proceedings Where An Attorney Is Declared to be Incompetent or is Alleged to Be Incapacitated).
Mr. Acker failed to appear for the March 29, 2006 hearing.
Mr. Acker's suspension from the practice of law, his failure to return documents to his former clients, and his failure to appear at scheduled hearings in this disciplinary proceeding made it necessary for a Receiver to be appointed to protect the interests Mr. Acker's former clients. On April 7, 2006, the Court appointed Wayne E. Tumlin, Esq. of Portland, Maine as the Receiver in this matter. In that order, the Court also directed that Acker immediately contact and enter into a contractual relationship with the Maine Assistance Program (MAP), to the satisfaction of the Director of MAP.
A substantial portion of the Board's disciplinary complaints detail Mr. Acker's alleged fraudulent dealings with his clients. That issue formed the basis for a multi-count indictment against Mr. Acker. He was arraigned on that indictment on March 21, 2006. The criminal case remains pending in the Cumberland County Superior Court and 11r. Acker has pled not guilty to those charges.
While not admitting guilt for the criminal charges, Mr. Acker, for the purposes of this proceeding, does agree that he accepted various client's funds, that he mixed those funds improperly with his operating account and his investment accounts, that he has failed to return the bulk of those funds despite requests to do so, and that he generally failed in his ability to meet his fiduciary and professional obligations.
Furthermore, Mr. Acker continues to be incapacitated by his chronic, major depression which renders him incapable of providing professional services. See Maine Bar Rule 7.3(e)(3).
- By his failure to comply with Bar Rules and court orders and his recent failure to respond to inquiries by the Board and Bar Counsel, he has also violated M. Bar R. 2(c), engaged in conduct unworthy of an attorney pursuant to Maine Bar Rule 3.1(a), and violated Maine Bar Rule 3.2(f)(1).
- By his failure to take reasonable measures to assure that clients knew and understood that some of the services they were obtaining were non-lawyer related services, he violated Maine Bar Rule 3.2(h).
- By failing to obtain the informed written consent of his clients advising of his inherent conflict and of the financial risks of investing in the partnership, he violated Maine Bar Rule 3.4(f)(2)(i).
- By abandoning his clients, neglecting matters entrusted to him, and refusing or delaying requests to return files he has violated Maine Bar Rule 3.6(a) and 3.6(a)(3).
- By failing to preserve the identity of various clients' funds designated by those clients as "investment funds" he violated Maine Bar Rule 3.6 ( e)( 1) .
- By repeatedly assuring clients that their money would be refunded on dates certain and then failing to produce those refunds, he violated Maine Bar Rule 3.2 (f)(3).
- Mr. Acker shall make restitution payments in an amount at least equal to each client's payments and or investments given to Mr. Acker. Those clients include but are not limited to:
- Mr. Acker must provide reliable and credible proof that he has obtained appropriate and competent counseling and treatment for his Major Depressive Disorder and any other mental infirmity that would affect his capacity to engage in the practice of law upon reinstatement.
- Mr. Acker must provide proof that a competent psychiatrist, psychologist or clinical social worker has determined that he has addressed his mental health disorders, and that the problems no longer pose a threat to the interests of the public and any clients that Acker may serve.
- Mr. Acker must submit a plan by which he proposes to practice law in a manner that will minimize the possibility that the problems that resulted in his disbarment from the practice of law will reoccur. The plan shall include, but not be limited to, the establishment of a mentor relationship with a member of the Maine Bar with at least ten years of experience, with whom Acker will consult on a regular basis for a period of three years. The person serving as mention must certify in writing that he/she agrees to serve in this capacity, and that he/she will provide the Court and Bar counsel with regular status reports regarding Acker?s practice and his progress in addressing the problems that resulted in his disbarment.
Mr. Bishop was the subject of the Court's Disciplinary Decision and Order of February 7, 2001, suspending him from practice in Maine for 90 days, June 1 through August 31, 2001.
Near the conclusion of that suspension, Mr. Bishop told Bar Counsel that he would not be returning to practice, and confirmed that statement by letter of September 25, 2001.
Despite his suspension and later affirmations to Bar Counsel, Mr. Bishop practiced law by accepting money from and commencing representation of at least three new clients in August of 2001, while that suspension was still in effect.
Olive Jean Dalton met with and paid Mr. Bishop an initial retainer of $500.00 on August 24, 2001, to handle her divorce matter. After that meeting she was unable to find Mr. Bishop or receive any communication from him as to the status of her case. After a hearing before the Fee Arbitration Commission, Mr. Bishop was ordered to refund that total retainer to Ms. Dalton, which he has failed to do.
In mid to late August 2001, Patricia Gilley hired Mr. Bishop to handle a divorce matter for her. Her father retained Mr. Bishop for legal work on probate related matters. Mr. Bishop received fees from both Ms. Gilley and her father, but they have received no performance or status information concerning either case.
Prior to his suspension, Mr. Bishop had served as attorney for the personal representative, Sharon Butler, concerning the 'Estate of Marcella Kenniston. Mr. Bishop failed to respond to inquiries by Ms. Butler or Paula Bickford (the daughter-in-law of the late Ms. Kenniston) as to the status of the estate or for an accounting of the assets of the estate. After the Kenniston home had been sold, Mr. Bishop was to pay certain debts of the estate from the proceeds of the sale that were in his possession. He has failed to make the required payments including approximately $4,500.00 owed to the funeral home involved in that matter.
Mr. Bishop received proceeds from the settlement of client Debra Burby's personal injury matter in order to pay Burby's medical bills. Mr. Bishop has failed to pay at least $2,500.00 that is owed by Burby to Bouchard Physical Therapy Services. Mr. Bishop was obligated to make this payment with money he received for that purpose.
Mr. Bishop settled a personal injury matter for his client, Grace Burwood and received some of the settlement proceeds. From these proceeds, Mr. Bishop was required to pay Ms. Burwood's outstanding debt of approximately $8,000.00 to Dr. Eric Omsberg. Although, he told Ms. Burwood that he had paid this debt, he has failed to do so.
After many requests by his former divorce client, Lewis Stillman, Mr. Bishop has failed to return Mr. Stillman's client file to him. Mr. Stillman needs his file in order to pursue certain post divorce court matters with his new attorney.
Bill Buker and Shawn Mullen are additional clients on unrelated matters. Each has had difficulty obtaining any information from Mr. Bishop as to the status of his matter, and because of Mr. Bishop's non-response, each was forced to seek replacement counsel. Although Mr. Bishop indicated to Bar Counsel that Mr. Buker's file was returned to him, it was not. Mr. Buker has yet to receive the requested materials.
In the case of another divorce client, Susan LaChance, Mr. Bishop failed to follow through on Court ordered requirements to finalize the order in her divorce. As a result, for several years Ms. LaChance believed she had been properly divorced. Only in 2001, did she find that Mr. Bishop had failed to prepare the divorce order as directed by the court. New counsel has now corrected the matter and finalized Ms. LaChance's divorce.
In the case of at least four clients, Debra Burby, Grace Burwood, Shawn Mullen and Travis Nichols, Mr. Bishop failed to include the names of those clients within the required affidavit he filed under M. Bar R. 7.3(i)(C) concerning his 2001 suspension. He failed to inform any of them that he had been suspended from practice, effective June 1, 2001.
Except for the Buker and LaChance complaints, after due' notice, Mr. Bishop failed to respond to Bar Counsel's inquires about the respective allegations of his misconduct in each of the many grievance complaints filed with the Board.
Mr. Bishop is in contempt of the Court's 2001 suspension order, and
Mr. Bishop is in violation-of Maine Bar Rules 2(c), 3.1(a), 3.2(f)(2)(3)(4), 3.3(a); 3.6(a)(2)(3); 3.6(e)(1), (2)(IV), and
The Dalton, Gilley, Butler, Burby and Burwood matters may involve violations of the criminal laws relating to theft, 17-A M.R.S.A. ?? 354 or 358.
Ronald L. Bishop is disbarred from the practice of law in the State of Maine, effective this date.
Michael D. Seitzinger, Esq. is appointed pursuant to M. Bar R. 7.3(f) to serve as a receiver of all current or former clients' files that are either in the actual or constructive possession of Mr. Bishop. Mr. Bishop shall cooperate with Mr. Seitzinger to locate all former and current client files, and arrange for them to be provided to him. Mr. Seitzinger is to be compensated for these services by Mr. Bishop's payment to him at the rate of $75.00 per hour, and is to be reimbursed by Bishop for all expenses incurred by his service as the receiver.
Mr. Bishop shall, within 30 days of this order, account to Mr. Seitzinger as to his handling of all client fees and funds relating to clients addressed in this order and for any and all clients that had matters with him either pending or that were settled on or after January 1, 2000.
Within that same 30 days, Mr. Bishop shall comply with the affidavit notification requirements of M. Bar R. 7.3(i).
A copy of this order shall be forwarded to the District Attorney for Kennebec and Somerset Counties for such consideration as may be appropriate.
Attorney Francis P. Daughan is suspended from the practice of law in Maine for 180 days to be effective on this date, July 9, 2002; and
Within 30 days of that suspension date, Attorney Daughan will comply with the notification and filing requirements of Maine Bar Rule 7.3(i).
- Automobile Dealer Litigation
- Insurance Collection Claim
- Auto Storage Dispute
- It is alleged by Bar Counsel that Frank Walker failed to timely return files to Peter K. Dressel and this failure violates the Bar Rules. The evidence is these gentlemen had a long professional relationship that began to deteriorate sometime in 1998. The evidence demonstrates Frank Walker handled a number of small legal matters for Peter K. Dressel, Mr. Dressel's wife and his business, Bill's Towing and Recovery. On April 9, 1999, Dressel requested the return of his files; two were promptly returned. A third was partially returned on the mistaken belief it had been returned in its entirety. Walker admitted at the hearing that he located the complete third file that had been "misfiled" and the misfiling had only been identified shortly before the hearing. Walker testified he would return the misfiled file to Peter Dressel on the day of the hearing.
- On April 26, 1999, Assistant Bar counsel wrote Frank Walker, Esq. enclosing a copy of Peter K. Dressel's multipage complaint letter and requested that by May 17, 1999, "you submit to me a written response for preliminary review by a Panel of the Grievance Commission." By letter dated May 21, 1999, Phillip R. Foster, Esq. entered an appearance on behalf of Peter K. Dressel forwarding a May 7, 1999 court order dismissing a disclosure hearing, and a three page memoranda from Frank Walker, Esq. explaining the history of his relationship with Mr. Dressel and his impressions of the Dressel complaint. Bar counsel asserts Mr. Walker?s lack of candor in this response violates the Bar Rules. The Board's initial inquiry was broadly written, seeking a general response. Walker's response was as broadly written. Bar Counsel sent a follow-up letter asking specific questions. In a letter dated July 8, 1999, a letter prepared in response to Bar Counsel's specific questions, Walker admitted his failings in the handling of the Dressel- Coldbrook Saab matter.
On or before May 28, 2002, the parties will stipulate to an attorney being appointed by the Court to serve as the Monitor for Mr. Hunt for a period of one year commencing June 1, 2002, unless terminated earlier as herein provided or by other order of this Court;
During the period of supervision, the Monitor shall receive monthly written reports from Mr. Hunt concerning the current status of matters in which he has been retained to act as counsel;
The Monitor is a volunteer who shall receive no compensation and who shall be expected to incur no expense;
Mr. Hunt will meet with the Monitor within twenty-five (25) days of the date of this Order and thereafter at the call and convenience of the Monitor on a monthly basis, unless the Monitor should determine more frequent meetings are appropriate;
The Monitor shall have the right to withdraw and terminate that service at any time for any reason the monitor deems sufficient, including for reasons set forth in Paragraph 6 below. In the event of a withdrawal, the Monitor shall notify the Court and Bar Counsel, and Mr. Hunt shall then cooperate to obtain the services of an alternate Monitor to complete the remainder of the original Monitor's term;
If any aspect of the monitoring procedure creates a situation which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules (for example, if Mr. Hunt is or becomes opposing counsel concerning a matter involving the Monitor), then the Monitor may adopt anyone of the following courses with the proposed result:
- The Monitor shall cease to act as such and a potential conflict is avoided;
- The Monitor shall continue as Monitor but totally exclude Mr. Hunt's client and matter in question from the monitoring process, so that no conflict is deemed to exist;
- The Monitor shall continue as Monitor, and obligate her/his firm to withdraw from the conflicting matter; or
- The Monitor shall continue as Monitor, and obligate Mr. Hunt not to participate in the matter and to obtain new counsel for his client (s).
- If in the Monitor's judgment it is appropriate, the Monitor shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Hunt's reports to him;
- The Monitor shall have no contact with any of Mr. Hunt's clients and her/his only contact in the performance of the Monitor's duties shall be with Mr. Hunt or other persons contemplated by this Order. The Monitor's participation in the monitoring of Mr. Hunt's practice shall be deemed not to create an attorney-client relationship between the Monitor and Mr. Hunt or between the Monitor and Mr. Hunt's clients;
- The Monitor shall file a confidential report with the Court on or before July 1, 2002 and quarterly thereafter or sooner if the Monitor deems it necessary, with copies to Mr. Hunt and Bar Counsel concerning any professional assistance the Monitor has provided to Mr. Hunt;
- The Monitor will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Mr. Hunt of which the Monitor becomes aware or any lack of cooperation by Mr. Hunt in the performance of this Order;
- In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Mr. Hunt occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate. In the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d) (5), the matter shall then be filed directly before this Court under Bar Rule 7.2(b);
- Any apparent violation of the conditions of this Order by Mr. Hunt shall be filed by Bar Counsel directly with the Court;
- On or before July 10, 2002, Mr. Hunt shall refund $125.00 to Kathleen Mundell, in care of Bar Counsel, via certified bank check or money order;
- On or before June 10, 2002, Mr. Hunt shall arrange and make an appointment to be evaluated by Dr. Stanley Evans, or by an alternate addictionologist acceptable to Bar Counsel; and
- Mr. Hunt shall follow strict compliance with all aftercare requirements and recommendations that may be made for him, by Dr. Evans or other addictionologist(s) as a result of that initial or any later evaluation(s).
Respondent Andrews B. Campbell of Waldoboro, Maine was at all times relevant hereto an attorney admitted to and engaging in the practice of law in Maine and subject to the Maine Bar Rules. He was admitted to the Maine bar in 1972, but was suspended and then disbarred from practice from 1987-1999. He was conditionally reinstated to practice in 1999 and opened his law office in Waldoboro. Upon his full compliance with those conditions in 2001, the Court (Saufley, J.) found that he had successfully returned to the practice of law and therefore ordered the removal of all remaining reinstatement conditions.
On June 15, 2004 Dale Wood filed a complaint with the Board against Attorney Campbell. The complaint alleged inter alia that Campbell had agreed to handle Wood's potential case claiming he had been assaulted by correction officials, but mishandled it by failing to adequately communicate with Wood and by losing critical documents.
Since his reinstatement, Attorney Campbell has accepted cases representing inmates in various Maine correctional facilities. While Campbell asserts that he had not officially accepted Wood's case as his attorney, he agrees that in 2002 he had drafted a Notice of Claim for Wood, and failed to clarify with Wood the fact of his declination of actual legal representation of Wood.
Attorney Campbell agrees and admits that he failed to properly clarify to Wood that legal representation by Campbell had not in fact commenced, and that Wood could have reasonably believed that Campbell was his attorney.
In addition, Campbell agrees that he and his firm failed to entirely safeguard Mr. Wood's file such that some of his original documents appear to have been lost. Ultimately, Mr. Wood came to understand that Campbell had not accepted his case, but Mr. Wood's original documents still were not returned to him in a timely fashion.
On October 12, 2004 this complaint was reviewed by a panel of the Grievance Commission. The panel found probable cause to believe that Attorney Campbell had engaged in misconduct subject to sanction under the Maine Bar Rules for which appropriate discipline should be imposed as provided for in those rules.
The parties have now stipulated to a finding of misconduct as outlined in this Report.
Therefore, based upon the above facts and admissions, the Panel concludes and Attorney Campbell agrees that he engaged in the following Code violations:
- Attorney Campbell violated M. Bar R. 3.6(a); (failure to keep a client informed on the status of matters); and
- Attorney Campbell violated M. Bar R. 3.13(a)(1) (failure to properly supervise attorney staff).
- Karen Burke, a sole practitioner, operates a law practice in Winthrop, Maine.
- In May 1996, Gail and Robert Beesley sought the services of Burke with regard to their financial situation.
- Burke was relatively experienced in the bankruptcy field having clerked for the United States Bankruptcy Court following law school.
- After contacting Burke and meeting with her in person, the Beesleys were under the impression that Burke would handle all matters associated with their Chapter 7 bankruptcy for a flat fee of $750, in addition to the filing fee of $175. Supporting the Beesleys' belief that a flat fee arrangement had been agreed upon is Burke's own Rule 2016(b) statement (FED. R. BANKR. P. 2016(b)) dated June 13, 1996, in which Burke represented that the $750 was to cover all the routine tasks associated with what proved to be an unremarkable Chapter 7 bankruptcy.
- The Beesleys paid $750 to Burke the day of their first meeting and paid the $175 filing fee roughly a month later.
- Burke filed the bankruptcy petition on behalf of the Beesleys in June 1996.
- Burke believed that the $750 was merely a retainer to be applied toward her fees and expenses, and she billed the Beesleys monthly for her services on an hourly basis. Although Burke was unable to produce a fee agreement signed by the Beesleys, she did produce an addendum to the fee agreement signed by the Beesleys agreeing to hourly charges for work done by a newly hired paralegal.
- Burke billed the Beesleys for $903.24 in addition to the original $750, and was paid $478.24 beyond the $750.
- The Beesleys paid the monthly bills for a period of time and, as the bills mounted, worked out a payment plan with Burke which allowed them to pay $25 a month and thereby avoid interest charges on the remaining balance due.
- The Beesleys received their bankruptcy discharge in October 1996.
- Eventually, however, the Beesleys retained other counsel because they felt they had been misled about the nature of their fee arrangement with Burke.
- Through their new attorney, the Beesleys sought to reopen their bankruptcy case and sought an order compelling Burke to disgorge the fees they had paid to her up to that point in time.
- As a result, it came to the attention of the Bankruptcy Court that Burke's Rule 2016(b) fee disclosure statement to the court either did not accurately state the terms of her fee arrangement with the Beesleys, or Burke had billed her clients not in accordance with that arrangement.
- Burke's response to the Beesleys' motion to reopen was aggressive. She claimed that the additional charges were entirely appropriate pursuant to her fee agreement with the Beesleys and that her Rule 2016(b) statement accurately disclosed this fee arrangement.
- The Bankruptcy Court made short but painful work of this "first line of defense.? In addition to concluding that Burke "abused her clients badly" and "misled the court" with her Rule 2016(b) statement, the Bankruptcy Court wrote:
- The court granted the Beesleys relief, ordered that Burke disgorge all fees paid to her by the Beesleys ($1139.42): and determined that the Rule 2016(b) disclosure statement described a flat fee arrangement that was inconsistent with the hourly charges for which Burke had been billing the Beesleys.
- The court also ordered that Burke discharge the Beesleys' remaining balance ($425) and pay their attorney fees associated with the disgorgement petition ($1,776.04).
- Finally, the court ordered that Burke appear at another hearing, pursuant to 11 U.S.C.A. ? 105(a) (1993) and FED. R. BANKR. P. 9029:
- Between the show cause order and the hearing, Burke softened her approach. She explained in an affidavit to the court that the inconsistencies between her billing practices and the Rule 2016(b) statement, the form for which she had borrowed from another lawyer, were the result of inattention rather than any "intent to deceive this Court or my clients."
- Burke wrote to all her bankruptcy clients with outstanding balances (6) and canceled their unpaid balances ($6,400).
- At the show cause hearing, the court determined that no further sanctions were appropriate, noting the remedial measures Burke had taken to address the issue of the accuracy of future Rule 2016(b) statements and her efforts with respect to other bankruptcy clients.
- The court accepted Burke's disclaimer that she did not harbor a subjective intent to mislead the court regarding her fee arrangements.
- The court admonished Burke, however, about her reliance on a form that she had used routinely but that did not accurately reflect her fee arrangements with her bankruptcy clients.
- This court concludes that the Beesley matter was caused by Burke's failure to clearly explain and document her fee arrangement with the Beesleys which resulted in their perception that they had not been treated fairly by the individual that was their advocate. Her subsequent remedial measures, however, which included revising the form in which she discloses her fee agreements to the court and discharging the balance owed by former clients, reflect a renewed attention to the details of her bankruptcy practice and her dealings with bankruptcy clients. When the shortcomings in her conduct before the Bankruptcy Court were brought to her attention, she corrected them in an appropriate manner.
- With respect to her specific representation to the court regarding the source of the initial $750 payment made by the Beesleys, Burke had indicated in her fee disclosure statement that the money had come from the Beesleys' wages and earnings.
- In their first interview with Burke the Beesleys told Burke that they had taken a cash advance the previous week.1
- Because the advance was not more than $1000, it was of marginal relevance on the issue of the dischargeability of the Beesleys' credit card debt. See 11 U.S.C.A. ? 523(a)(2)(A) & (C) (1993) (establishing the presumption that cash advances greater than $1000 taken 60 days before filing a bankruptcy petition are extensions of credit obtained by false pretenses or fraud and therefore constitute nondischargeable debt).
- Burke also testified that she did not believe that the money used to pay her had come from the cash advance.
- The record reflects that Mr. Beesley's average weekly income at the time was in excess of $800.
- Notwithstanding Burke's attempt to "paint the Beesleys as bad people by pointing to credit card cash advances they supposedly took on the eve of bankruptcy," Beesley, Case No. 96-10686, this court accepts Burke's testimony that she did not believe these credit card funds were used to pay her fees.
- The court concludes with regard to this issue that, regardless of Burke's good faith belief, the recent credit card cash advance should have prompted more inquiry from Burke regarding the disposition of this cash advance for purposes of her Rule 2016(b) statement. While Burke may not have willfully misrepresented the source of the Beesleys' payment to her, Burke's failure to inquire further may have resulted in the court not being fully informed on matters relevant to the bankruptcy proceedings. As noted above, however, Burke has since amended her practice to provide both more accurate and more detailed disclosures regarding her fee arrangements, demonstrating an appropriate response to the problem.
- The court is satisfied that Burke's conduct was prejudicial to the administration of justice in violation of Maine Bar Rule 3.2(f)(4). The court is not persuaded as the Board has alleged that Burke's conduct amounted to a violation of Maine Bar Rules 3.2(f)(2-3), 3.3(a), 3.7(b) and 3.7(e)(1)(I). The court is also satisfied that Burke's bankruptcy billing practice and her representations regarding it were the product of negligence rather than venality.
- In November 1992, Carolee Weglarz and Daniel Austin contacted Burke regarding the purchase of a piece of property. Burke had represented Weglarz previously in a divorce.
- Prior to contacting Burke, Weglarz and Austin had entered into a purchase and sale agreement with respect to the property.
- At their request, Burke issued a certificate of title opinion indicating that the seller of the property had marketable title to the property, free and clear of all encumbrances.
- The title opinion specifically excepted matters that a physical inspection or survey of the property would reveal. Burke admitted, however, that she came to the legal conclusion at the time of her title opinion that the sellers had a right of way to a nearby lake.
- Burke then prepared a warranty deed for transfer of the property. The deed purported to convey the property and a right of way to the lake. Additionally, the deed contained a warranty of title on behalf of the seller.
- When searching and certifying the title and drafting the deed, Burke made several mistakes. She did not appreciate that the deed did not convey a right of way over retained lands of the grantor, Manter; the out-conveyances referenced by Burke in the deed had conveyed the previous owner's. i.e., Haskell's, property abutting the lake; Haskell had retained only a personal (and probably) nontransferable right of way to the lake: and Haskell's deed to Manter only conveyed the first segment of Haskell's three-segment right of way to the lake.
- These deficiencies should have been apparent without physically inspecting the property or obtaining a survey.
- Two years later, Burke represented Weglarz in matters surrounding the end of her relationship with Austin.
- Burke prepared and Austin executed a quitclaim deed ceding his interest in the property to Weglarz.
- Burke's representation of Weglarz in these and other matters had been concluded by April 1996.
- In late August 1996, Burke received a letter from an attorney representing the owners of the land over which Weglarz believed she had a right of way.
- The attorney, having been informed that Burke had done the title work, indicated that before contacting Weglarz he was contacting her to provide her an opportunity to clear up the question of whether a right of way in fact existed across his clients' property.
- Burke testified that she believed that she forwarded a copy of the attorney's letter to Weglarz.
- Weglarz testified that she did not see a copy of the letter until December of 1998.
- The court finds that Weglarz's recollection in this regard is not reliable. A copy of the letter was sent to her directly by the attorney for the landowners in June 1997 and she references the letter in her complaints to the Board of Overseers of the Bar in July and October 1998.
- Additionally, Weglarz testified to a contact between herself and the property owners in the Summer of 1996 regarding the right of way. Both Burke and Weglarz testified to a conversation occurring roughly contemporaneously with the August 1996 letter in which Burke informed Weglarz that a right of way did not entitle her to keep her canoe in the vicinity of the landowners' dock.
- Furthermore, this court credits Burke's testimony that Burke did not formally respond to the August 1996 letter from the landowners' attorney because she had not been authorized by Weglarz to communicate with this attorney on her behalf, i.e., Weglarz had not asked Burke to represent her at that time in the dispute concerning the right of way.
- The attorney for the landowners sent a letter to Weglarz directly in June 1997 enclosing a copy of his earlier letter to Burke and informing Weglarz that she did not have a right of way to the lake.
- Weglarz and Burke communicated in the fall of 1997 about the disputed right of way. Although Weglarz did not recall specifically authorizing Burke to enlist the services of another attorney, she did recall telling Burke to take care of the problem.
- It was reasonable for Burke to conclude from her communications with Weglarz that she was authorized at that time to represent Weglarz in the matter, including doing what was necessary to confirm the existence of the right of way to the lake.
- Burke's client notes indicate that she spoke with Weglarz in the early part of November 1997 and she testified that Weglarz agreed to a retainer of $200 at that time. Burke failed to memorialize this agreement, however.
- Although Burke did not receive the retainer, she nevertheless pursued the right of way matter.
- Burke at this point admittedly had two reasons to resolve this dispute: first, she had given a title opinion arguably certifying the existence of a right of way to the lake, and second, her client had asked her to take care of the problem.
- Burke asked a colleague to research the existence of the right of way.
- Burke conceded that if the colleague found a title problem that she should have caught in her prior research, she would have taken responsibility for her colleague's charges and for resolving the dispute.
- The colleague, mistakenly, as it turns out, confirmed the existence of a right of way to the lake and indicated that any ambiguity could be resolved by a couple of corrective deeds from the client's grantor (Manter), and the estate of the grantor's grantor (Haskell).
- Burke forwarded the results of her colleague's research to both Weglarz and the attorney for the landowners contesting the right of way.
- The attorney for the landowners promptly responded that the twenty foot right of way referenced in Weglarz's deed did not run to the lake and Haskell's fifteen-foot right of way to the lake was personal to him (i.e., could not have been conveyed to others), had been abandoned by Haskell before his death, and in any event had not been conveyed to Manter, Weglarz's grantor.
- Notwithstanding opposing counsel's response, Burke, again aggressively took the position with Weglarz that the defect, if any, in the right of way conveyed by Manter was not attributable to the quality of Burke's title search or her drafting of the warranty deed.
- Although in this regard she was in error, based on the memorandum prepared by her colleague claiming that Weglarz had a right of way to the lake, Burke's position was not necessarily unreasonable, at least originally, and did not constitute a misrepresentation on her part.
- Consistent with her view that she had not erred, Burke sent her client a bill for her services and that of her colleague.
- When her client filed a grievance, Burke persisted in her belief that her performance was entirely appropriate.2
- Although Burke's actions in 1996 and 1977 were not unreasonable, the title problem was the result of Burke's inadequate title work.
- The court is satisfied that Burke's handling of the original title work was "without preparation adequate in the circumstances" in violation of Maine Bar Rule 3.6(a)(2). The court is not persuaded, as the Board has alleged, that Burke's conduct amounted to a violation of Maine Bar Rules 3.2(f)(3), 3.2(f)(4), 3.3(a), 3.6(a)(1) and 3.6(a)(3).
- Burke first represented Stephen Weston in a lengthy and protracted divorce.
- She continued to represent him in post-divorce proceedings and in a foreclosure action related to the divorce.
- These matters were concluded by the early fall of 1997.
- In the course of these proceedings, Weston incurred substantial attorney fees pursuant to two written fee agreements between himself and Burke which also provided for the accrual of interest on unpaid balances. By the fall of 1997, Weston had an outstanding balance of roughly $11,000 with Burke.
- Although Weston's and Burke's testimony conflict about who first proposed the arrangement they agreed that Burke would lease office space in a building owned by Weston and that the rental payments would be applied to offset Weston?s outstanding balance.3
- Burke moved into the space at the end of November 1997 without a written lease.
- Burke asked Weston repeatedly for a written lease, but he did not provide one.
- Weston stated in his testimony to this court that he did not do business that way.
- Burke eventually took the initiative and, following discussions with Weston, attempted to memorialize the terms of their rental agreement in a written lease which they both signed at the end of January 1998.
- Weston testified that, although he had not read the final draft of the lease at the time he signed it, the lease did not in fact reflect his understanding of the terms of his agreement with Burke.
- Simultaneously with these lease negotiations. Burke assisted Weston with an application to the Winthrop Planning Board that would allow Weston to make commercial use of his property, including renting space to Burke and using the remaining portion of the building for his furniture restoration business.
- Burke appeared before the Planning Board along with Weston.
- Although the parties did not have a written fee agreement specifically addressing her representation of Weston in the Planning Board matter, Burke billed Weston for her Planning Board services.
- The Board has failed to demonstrate that Burke's lease of office space in lieu of a collection action was tantamount to an impermissible business transaction with a client.
- Even if such an arrangement were a business transaction requiring the opportunity to consult outside counsel. Burke urged Weston to contact another attorney on several occasions in her efforts to secure a written lease.
- Although Weston testified that Burke never suggested that he see another attorney, this court credits Burke's testimony on this point.4
- Lastly, while Burke's monthly rental amounts were being credited against Weston's balance, interest continued to accrue on the unpaid balance as provided in the written fee agreement.
- Although Burke had a practice of suspending interest accrual if a client made monthly payments, Burke was not required to make this accommodation pursuant to the terms of her fee agreements with Weston.
- There is no evidence that the lease arrangement incorporated an agreement to suspend interest. Therefore, it does not appear that Burke's failure to suspend interest was unreasonable.
- The court is not persuaded, as the Board has alleged, that Burke's conduct amounted to a violation of Maine Bar Rules 3.2(f)(3) & (4), 3.3(a), 3.4(b)(f)(1) & (2), 3.5(a)(2), 3.6(e)(2)(iv), 3.7(b), 3.7(e)(1)(i) and 3. 7(h)(2).
Rule 3.2(f)(4)-Conduct Prejudicial to the Administration of Justice
Rule 3.2(f)(3)-Dishonesty
Rule 3.6(a)-Failure to Exercise Reasonable Care
Rule 3.6(d)-Advising Violation of Law
Rule 3.6(f)-Communicating with Adverse Party while represented
Rule 3.7(a)-Improper Legal Action to Harass or Injure Litigant
Rule 3.7(b)-Improper Concealment of a False Statement
Rule 3.7(e)-Providing False Information to the Court
secure the professional riles, client property and client data of Attorney Steele
obtain access to Attorney Steele's post office boxes to secure any law office or legal mail
inventory the open and closed client files
give priority attention to client matters which are open and time sensitive
notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
Attorneys Cayford and Wiers shall also prudently access and utilize Attorney Steele's operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
Attorney Whalley is admitted to the Maine Bar and is a solo practitioner in Ellsworth, Maine in Hancock County.
In 2003, Rene and Jeffrey Wiesner retained Attorney Whalley to assist them with the incorporation of their two small businesses. Attorney Whalley also agreed to pursue a disclosure hearing for a small claims case in which Mr. Wiesner had previously secured a judgment.
Until 2005, Attorney Whalley employed Patrice Crossman as a legal assistant. Ms. Crossman was responsible for all small claims and collections procedures and regular corporate formation and routine filings for small business clients. Attorney Whalley admitted that he relied too much on Ms. Crossman's assistance in certain matters and should have provided more supervision of her work.
Over time, significant problems arose that led to a breakdown in the attorney-client relationship between Attorney Whalley and the Wiesners. The Wiesners were very dissatisfied with their inability to make contact with Attorney Whalley. Further, his office failed to adequately prepare the annual registration form for the corporation. Upon learning of the mistake, Attorney Whalley's office again committed the same errors in the paperwork.
Attorney Whalley also failed to diligently pursue the Wiesner disclosure/collection matter. He failed to monitor its progress, resulting in delays, problems with filing fees, late service on the defendant, and significant wait time in court for the Wiesners. He further failed to communicate with his clients regarding these problems.
The. Wiesners terminated Attorney Whalley's representation in August 2005, and requested that he return their files. Despite their repeated requests, Attorney Whalley delayed in doing so until two months later, after this grievance was filed.
Although this disciplinary proceeding had commenced and proceeded up the ladder to this Court, and Attorney Whalley had knowledge that every aspect of his practice would be scrutinized by this court, Attorney Whalley was threatened with suspension for failure to report his annual CLE hours in a timely fashion, demonstrating neglect of a very routine, yet critically important part of practicing law, while the disciplinary hearing was before this Court.
Since 2005, Attorney Whalley has employed a full-time paralegal and another assistant. He has also made a significant effort to streamline his practice and become more efficient and organized.
Attorney Whalley was truthful in preparing his defense for this Court and did not intentionally mislead Bar Counsel, the Grievance Commission, or this Court.
This Court has previously disciplined attorney Whalley. He received a reprimand in 2005, and in 2003, he received a suspended suspension for three months and was required to submit his practice to a monitor. He also received warnings in 1995, 2000, 2001, and 2005.
Mr. Dearborn shall receive no compensation and shall not be expected to incur any disbursements.
Mr. Whalley will meet with Mr. Dearborn at Mr. Dearborn's calling and convenience, on a bi-weekly basis, unless Mr. Dearborn determines that more or less frequent meetings are appropriate.
Mr. Dearborn shall have the right to withdraw and terminate his services at any time for any reason he deems necessary. If he does so, he shall notify the Court, Bar Counsel and Mr. Whalley of his withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
If any aspect of the monitoring procedures creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules, Mr. Dearborn may adopt anyone of the following courses with the proposed result:
- If in Mr. Dearborn's judgment it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Whalley's reports to him.
- Mr. Dearborn shall have no contact with any of Mr. Whalley's clients, Mr. Dearborn's only contacts in the performance of his monitoring duties being with Mr. Whalley or other persons contemplated by this order.
- Mr. Dearborn's participation in the disposition of Mr. Whalley's disciplinary case and monitoring of Mr. Whalley's practice shall be deemed not to create an attorney-client relationship between Mr. Whalley and Mr. Dearborn or between Mr. Dearborn and Mr. Whalley's clients. Specifically, Mr. Dearborn shall be deemed not to represent Mr. Whalley or any of Mr. Whalley's clients or to be employed by them in any capacity and Mr. Dearborn shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to Mr. Dearborn's monitoring of Mr. Whalley's practice, and Mr. Dearborn shall be immune from any civil liability (including without limitation, any liability for defamation) to Mr. Whalley or any of Mr. Whalley's clients.
- Mr. Dearborn will have the authority to review and examine any of Mr. Whalley's files, except those in which Mr. Dearborn might have adverse interests under paragraph 5.
- Mr. Whalley shall prepare and present to Mr. Dearborn reasonably in advance of each meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof.
- Mr. Dearborn will, as soon as practicable, have Mr. Whalley establish a method of objectively identifying delinquent client matters and have him institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- Mr. Dearborn shall file a confidential report with the Court every three months or sooner if Mr. Dearborn deems it necessary, with copies to Mr. Whalley and Bar Counsel concerning at least the following subjects:
- Mr. Dearborn shall have the duty to report to Bar Counsel and the Court any apparent or actual professional misconduct by Mr. Whalley of which Mr. Dearborn becomes aware or any lack of cooperation by Mr. Whalley in the performance of this Order.
- Mr. Dearborn's monitoring of Mr. Whalley's practice will be for a period of one year, unless terminated earlier as herein provided or by other Order of this Court.
- If Mr. Dearborn's reports identify continuing problems with Attorney Whalley's practice management and client relation skills, then this Court may implement the suspension.
- Danisinka-Washburn neglected to prosecute the appeal for which she had been retained. Her failure to prosecute the appeal violated M. Bar R. 3.2(f)(4) and 3.6(a)(2) and (3).
- She did not perform services reflecting the time and effort that would justify retention of the $14,000 payment received from Hattie Burton and Floyd Burton's family. In relation to the work done, the fee charged was excessive pursuant to M. Bar. R. 3.3(a).
- Danisinka-Washburn failed her obligation to communicate with her client, Floyd Burton, and particularly failed an obligation to consult with him prior to her decision to allow dismissal of the appeal, which he wished to maintain. Such consultation is a mandatory obligation of counsel on appeal. Florida v. Nixon, 543 U.S. 175, 187 (2005); Smith v. Robbins, 528 U.S. 259, 265-66 (2000); Anders v. California, 386 U.S. 738 (1967); State v. Junkins, 2001 ME 133, 779 A.2d 948. This failure to communicate violated M. Bar. R. 3.6(a).
- Danisinka-Washburn misled Floyd Burton and Hattie Burton with respect to the status of the appeal, leading them to believe that she was still working on the appeal, and that the appeal still might be processed after she knew that the appeal had been dismissed. This misleading conduct, including false and misleading statements, violated M. Bar. R. 3.2(f)(3) and (4).
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Attorney Charles F. Perrault is reprimanded for his violations of those portions of Maine's Code of Professional Responsibility that are analogous to those violations of Massachusetts' Rules of Professional Conduct by him as found in Massachusetts' Order of Public Reprimand dated June 21, 2007.
- In February of 2006, the complainant Irmgard Dering first contacted Attorney Salewski to represent her in a transaction for the purchase of real estate located in Bowdoin, Maine. ?She was referred to Attorney Salewski by the lender that she was working with at that time. ?Attorney Salewski did in fact represent Ms. Dering in that February 2006 land transaction, but that transaction was not consummated by the parties and the Purchase and Sale Agreement was voided.
- On or about March 11, 2006, Ms. Dering entered into a second Purchase and Sale Agreement for a piece of property and home located at 24 Stone Ridge Lane, in Bowdoin, Maine. ?The sellers of that property were Robert and Stephanie Dundas. ?For this transaction, Ms. Dering obtained her financing with Camden National Bank. ?Pursuant to Respondent's Exhibit #1, Ms. Dering chose Attorney Salewski as her attorney to close the transaction. ?Phone records further suggest that there was ongoing contact through February and March of 2006 between Ms. Dering and Attorney Salewski.
- Consistent with her selection of Attorney Salewski as her attorney, the Purchase and Sale Agreement was forwarded to Attorney Salewski and he was instructed to commence taking the necessary steps to prepare for closing.
- Ms. Dering was of the reasonable belief that Attorney Salewski was at all times representing her and acting as her lawyer for the purpose of the Stone Ridge Lane purchase transaction.
- In conducting the title search in preparation for closing, Attorney Salewski discovered a problem with the Stone Ridge Lane property. ?The existing access to the primary roadway was by a right of way over an adjacent property. ?The nature of the relevant defect was that the right of way boundaries drawn by a surveyor at the time of the subdivision approval were not the actual boundaries of the roadway as constructed and existing on the face of the earth. ?This problem was detected by a Mortgage Loan Inspection performed by a surveyor. ?The right of way was essential to allow access to and from the property.
- On or about May 11, 2006, Attorney Salewski notified Ms. Dering that there was a problem with the right of way. ?Attorney Salewski testified that these discussions were limited in scope to those problems revealed by the Mortgage Loan Inspection. ?Attorney Salewski told Ms. Dering that he would take the necessary steps to resolve the right of way problem.
- To resolve the right of way problem as identified by the Mortgage Loan Inspection, Attorney Salewski prepared deeds to be exchanged between the Dundas' and the abutting property owners, the McManus'.? Those deeds were signed by the Dundas' and McManus? on or about May 15, 2006, and appear to reasonably correct the problems identified by the Mortgage Loan Inspection.
- Attorney Salewski charged the Sellers his fee to prepare those curative documents regarding the right of way and to prepare the Dundas' deed of conveyance; but also had the Dundas' sign an acknowledgement in which they acknowledged that Attorney Salewski was representing the bank and was not representing them.
- The closing was scheduled for May 16, 2006. ?On May 15, 2006, Ms. Dering called Attorney Salewski's office to inquire as to the status of the defective right of way. ?She was informed by a staff member that the right of way defect had been taken care of.
- The closing occurred on May 16, 2006, at Attorney Salewski's office. ?Although a number of the closing documents were reviewed and explained by Attorney Salewski, he did not specifically explain to Ms. Dering the existing terms of the right of way. ?The work done by Attorney Salewski in no way changed the terms of the right of way; his work merely corrected the location of the right of way. Nonetheless, Attorney Salewski failed to discuss or explain to Ms. Dering any of the remaining terms of the right of way, specifically those regarding upkeep and maintenance of the right of way.
- A number of months after the closing, Ms. Dering was contacted by her neighbor, the McManus', on whose property the right of way was located. ?Mr. McManus presented with a bill for half of the charges he incurred to have the right of way paved. Ms. Dering became extremely upset. ?She was of the belief that Attorney Salewski had "resolved" the right of way issues, and has since come to the misunderstanding that Attorney Salewski's curative work with the right of way somehow created for her greater obligations with regards to maintenance and upkeep.
- Upon receipt of the complaint brought by Ms. Dering, Attorney Salewski took the position that he was never representing Ms. Dering. ?In responses written by Attorney Salewski dated September 5, 2006, and January 30, 2007, Attorney Salewski repeatedly maintained he was not representing Ms. Dering and that he was only representing the lender, Camden National Bank.
- 3.4(a)1 Disclosure of Interest;
- 3.4(a)2 Commencement;
- 3.4(c)(2);
- 3.6(a) Standards of Care and Judgment;
- Attorney Shadis of Newcastle, County of Lincoln, State of Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Shadis was admitted to the Maine Bar in 1989 and has been practicing law in Newcastle, Maine since 1989.
- On November 1, 2005 Lori S. Hall filed a grievance complaint against Attorney Shadis. On November 28, 2005 Attorney Shadis filed her response to the grievance.
- The specifics of Attorney Shadis' conduct are outlined below.
- Attorney Shadis, on behalf of her client, filed a post-divorce motion in the Wiscasset District Court. The post-divorce custody case began in January 2005 and ended in August 2005.
- During the pendency of that civil case, Attorney Shadis pursued a closed criminal investigation involving Mrs. Hall's then domestic partner, now husband, Mr. Hall. To that end, Attorney Shadis arranged contact between the witnesses and provided information to the Maine State Police with the intent to obtain information for the custody case and to reopen the criminal investigation against Mr. Hall. Prior to her involving the State Police, Attorney Shadis had been in contact with the former wife of Mr. Hall who expressed concern and provided information about the allegations.
- In her answer to the grievance, Attorney Shadis asserted that she was vigorously representing her client, rather than violating the Code of Professional Responsibility. She maintained that the information was relevant to her custody case. However, Respondent now acknowledges that her initiation of contact with the Maine State Police and the alleged victim transcended acceptable standards of an attorney's proper representation of a client. See Maine Bar Rules 3.6(a) and 3.7(a).
- Attorney Shadis also now agrees that her previous criticism of a District Court Judge demonstrated poor judgment and was discourteous to a tribunal in violation of Maine Bar Rule 3.7(e)(2)(vi).
- Ultimately, the principal parties involved in the Hall custody case resolved their differences, and law enforcement never charged Mr. Hall with any criminal conduct.
- Attorney Shadis violated M. Bar R. 3.2(f)(4);
- Attorney Shadis violated M. Bar R. 3.6(a) and (c);
- Attorney Shadis violated M. Bar R. 3.7(e)(2)(vi).
- Attorney Shadis' foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).
- whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the attorney acted intentionally, knowingly, or negligently;
- the amount of actual or potential injury caused by the attorney?s misconduct; and
- the existence of any aggravating or mitigating factors.
- On December 20, 2004, Mr. Cervizzi's spouse was properly served by a deputy sheriff at their residence in Scarborough, Maine with copies of the information, a notice directing Mr. Cervizzi to file an answer within 20 days of service and the Board's Motions for Default and Contempt. Such service upon Mrs. Cervizzi constituted service upon Defendant Cervizzi himself. M.R. Civ. P. 4 (d)(1). At the direction of Bar Counsel, on January 7, 2005, Mr. Cervizzi was served in-hand by private detective, Ronald J. Randall, with duplicate copies of those same documents. Service was accomplished at Mr. Cervizzi's employment, Lee Auto Sales in Windham.
- Mr. Cervizzi did respond to the Board's Motion for Contempt by cooperating with the Board on January 19, 2005 in the removal of his former clients' files from his residence, pursuant to the Court's Order of January 14, 2005.
- Mr. Cervizzi did not respond to the information filed by the Board of Overseers or a subsequent motion for default.
- Because Mr. Cervizzi did not respond to the Board's information or oppose the motion for default, he is defaulted. The facts and allegations of that information are deemed admitted. M. Bar R. 7.2(b)(2), M.R. Civ. P. 7(c)(3), 55.
- Mr. Cervizzi was provided notice of this hearing by the Court's letter of March 10, 2005, and also had several telephone discussions with Board staff between March 18th and March 29th confirming his knowledge of the hearing date.
- By his hand-delivered letter to the Court dated March 30, 2005, Mr. Cervizzi stated that he did not oppose the sanction of disbarment being sought by the Board. He failed to appear at the hearing. Mr. Cervizzi did notify Bar Counsel that he would not be present.
- Mr. Cervizzi practice law in Maine from 1970 until July/August 2003.
- Upon receiving notice in early July, 2003 that he had been summarily suspended from practice by the Board, effective July 30, 2003, for his failure to comply with his tax obligations, Mr. Cervizzi failed to inform his clients, courts, opposing counselor other required individuals or agencies of that suspension.
- Mr. Cervizzi failed to assist many of his clients to obtain new counsel, and abandoned most of his clients and the legal matters they had entrusted to him. A number of his clients were left with no idea where their lawyer was, that in fact he was no longer acting as their lawyer, where to find him or their files, or in what status their legal affairs had been left.
- While Mr. Cervizzi did respond to two initial grievance inquires from Bar Counsel, thereafter he repeatedly ignored the Board's and Bar Counsel's efforts to contact him about grievances filed against him and the whereabouts of clients' files.
- In at least two matters, he continued to represent clients in court after July 30, 2003, in direct violation of his suspension notice.
- In one of those matters, a pending criminal case, Mr. Cervizzi signed a document on August 7, 2003 that was dated July 31, 2003. He then filed that document with the Biddeford District Court for his client's case, making it appear that he had signed it before he had been suspended from practice.
- By his unsigned letter of September 12, 2003 from Cervizzi's Title Company, he admitted that he was obligated to disburse fees and charges totaling $990.00 to a mortgage broker, NovaStar Home Mortgage, Inc., concerning a loan transaction for which Mr. Cervizzi had acted as the settlement agent. To date, there is no evidence that he has made that payment to NovaStar.1
- Mr. Cervizzi initially failed to comply with this Court's Order for Custody of Files issued on April 28, 2004 requiring him to turn his former clients' files over to Bar Counsel by May 7, 2004. It was not until some eight months later - on January 19, 2005 - after the Board's agent, Mr. Randall, had directly confronted him about the seriousness of his failure to turn over those files to Bar Counsel, that Mr. Cervizzi finally complied with that April 28, 2004 Order for Custody of Files.
- Mr. Cervizzi abandoned each of the four clients who testified at hearing, refused to respond to inquiries by each of the four, and refused to return files and wills to his clients, so that they could pursue their pending legal matters through alternate counsel.
- Mr. Cervizzi lost all or parts of files of some clients.
- Clients received files only after they were removed from Mr. Cervizzi's home by court order and transferred to the custody of the Board and a law office in Saco.
- The Court incorporates by reference as findings all of the allegations in the information that have been admitted by default.
- By failure to comply with Bar Rules and court orders and failure to respond to inquiries by the Board and Bar Counsel, he has violated M. Bar. R. 2(c), engaged in conduct unworthy of an attorney pursuant to M. Bar. R. 3.1(a), and violated M. Bar R. 3.2(f)(1), (2), (3), (4).
- By practicing law and filing court documents after his suspension, he has violated M. Bar R. 3.2(f)(1), (3), (4), and 7.3(i)(1)(B), (C).
- By refusing to return files to clients after ceasing practice and representation and by failing to act promptly to provide the files after request by Bar Counsel and order of the Court, he has violated M. Bar R. 3.4(a)(4).
- By abandoning his clients, neglecting legal matters entrusted to him, and refusing or delaying requests to return files he has violated M. Bar. R. 3.6(a) and 3.6(a)(3).
- By representing clients after being suspended, he has violated M. Bar R. 2(c); 3.1(a); 3.7(b), and 7.3(i)(1)(B), (C).
- By failing to notify clients after his suspension for disciplinary purposes, he has violated M. Bar R. 7.3(i)(1)(B), (C).
- Restitution payments of $990.00 to NovaStar Home Mortgage, Inc. of Santa Ana, California, and $600 to Valerie L'Heureux for jury trial payments on cases that were abandoned;
- $2212.55 to the Board of Overseers of the Bar (for its expenses incurred for the removal of former clients' files from his residence, and providing notice of that removal).
- Respondent Richard B. Romanow of Portland, County of Cumberland, State of Maine, was at the time relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Mr. Romanow was admitted to the Maine Bar in 1980, but was summarily suspended in 2003 for failure to complete his continuing legal education requirement, as he considered himself retired from practicing law since 2000. He is now employed as a high school history teacher and has no plans to return to practicing law.
- The background on these cases is as follows: Mr. Romanow served his client, Annie Wright for many years, including acting as trustee during her last years and Personal Representative (PR) and trustee following her death in 1995. Mr. Romanow explained that Ms. Wright's previous direction to him was to take care of her sister (Josephine Anderson) and Ms. Anderson's extended family members, including financial assistance as resources allowed. In addition to the financial assistance, members of the family had been permitted to live in the decedent's former home. It was Mr. Romanow's belief that Ms. Wright would have wanted the trust money spent in the manner in which he allowed and or provided for, during the years following Wright's death.
- Since 1995, Mr. Romanow provided for Josephine Anderson's financial needs along with some other financial needs of the family as approved by Ms. Anderson. However, Mr. Romanow did not keep formal records of his financial transactions as trustee, thereby violating Maine Bar Rule 3.6(e)(1). In addition to that problem, there were instances in which Mr. Romanow failed to pay the South Carolina real estate taxes in a timely manner, resulting in a violation of Maine Bar Rule 3.6(a). Finally, due to overspending, some of the family trusts and the charitable giving outlined by Ms. Wright's will were not established.
- In October 2004 Tara Jo Johnson filed a complaint with the Board against Mr. Romanow. The complaint alleged inter alia that Romanow had promised Johnson that her son would receive money from the trust. In 2005, other devisees under Ms. Wright's will (Lucero, Bently, Stenger) complained to the Board against Mr. Romanow for his failure to produce the funds owed to those complainants or their relatives.
- On July 5, 2005 and September 6, 2005, respectively, these four complaints were reviewed by a panel of the Grievance Commission. The panel found probable cause to believe that Mr. Romanow had engaged in misconduct subject to sanction under the Maine Bar Rules for which appropriate discipline should be imposed as provided for in those rules.
- The Board's Disciplinary Petition was filed on January 12, 2006. The parties stipulated to the finding of misconduct outlined in the Petition.
- Although there is a factual dispute as to how the money was spent, the end result is the same: there were not enough funds to fulfill the directives outlined in Ms. Wright's will.
Therefore the Panel concludes that the following Code violations occurred:
- Mr. Romanow violated M. Bar R. 3.6(a);
- Mr. Romanow violated M. Bar R. 3.6(e)(1);
- Mangan made inappropriate use of his client escrow account in violation of M. Bar R 3.1(a) and 3.6(e)(1), (2);
- Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work in violation of M. Bar R.3.1(a); 3.6(a)(3); and 3.6(e)(2)(iii); and
- Mangan engaged in a sexual relationship with a client which relationship with a client which relationship adversely affected his representation of the client and abused the attorney-client relationship in the context of the sexual relationship in violation of M. Bar R. 3.1(a): 3.2(f)(2), (3), (4); 3.4(b)(1); 3.4(f)(1); and 3.6(a)(3).
- Attorney Condon has practiced law in Maine since his admission to the Maine Bar in 1997 and from 2002 until March 7,2005, was a partner at the law firm of Hufnagel, Lake & Condon (HLC);
- Like most Maine law firms, HLC kept a pooled client trust account with detailed client records. At HLC, these client records were made and retained on a computer-based accounting program called "Quickbooks";
- On or about March 10, 2004, Attorney Condon received from an insurance company a settlement check for Client A for $2547.95 with instructions to hold and not deposit the check until Attorney Condon's client had signed a release. Although Client A had not signed a release, Attorney Condon deposited the check in the HLC pooled client trust account in a subaccount attributable to Client A. Then, still without a release from Client A, on August 26, 2004, in violation of the insurer's terms of settlement, Attorney Condon paid the firm $400 in legal fees from the sub-account attributable to Client A;
- Although Attorney Condon attributes this to an unintended clerical error, the Court is satisfied that sometime between mid-September and early October 2004, Attorney Condon manipulated the "Quickbooks" accounting program to change the name on the trust sub-account from Client A to Client Band change the source of those funds from an insurance company to the law firm to whom .. Attorney Condon had previously referred Client B to handle his personal injury claim.
- On December 6, 2004, the firm to whom Client B had been referred sent Attorney Condon $1111.11 as a referral fee (i.e., one-third of the one-third of the $10,000 settlement negotiated for Client B). Rather than deposit the sum in the firm's general account as income, Attorney Condon directed his secretary to "please deposit (the check) ... in (Client B) Trust Account." With that deposit the sub-account in the name of Client B totaled $3259.06 (i.e., $2547.95 minus $400, plus $1111.11);
- Attorney Condon admits that on December 10, 2004, he caused a check to be drawn on HLC' s trust account payable to Client B and that he deposited that check for $3259.06 into Attorney Condon's personal checking account. Although he does not remember doing so, the Court is satisfied that Attorney Condon endorsed Client B' s name to the back of the check. The funds neither belonged to Attorney Condon nor to Client B;
- On January 25, 2005, Client A called HLC wanting to speak with Attorney Condon about his case. Within an hour of that call, the Court is satisfied that Attorney Condon, using an absent employee's password to gain access to the Quickbooks program, established a sub-account for Client A for $2547.95 indicating the source of those funds was a law firm rather than the insurance company and reduced the size of another client's sub-account by $2547.95;
- When a month later Attorney Condon's manipulations began to be uncovered he first blamed the firm's staff. Only after viewing a videotape of him making the deposit into his personal checking account did he admit the deposit. He claims not to remember endorsing Client B' s name on the back of the check and intimated at the hearing that a credit union teller may have done so.
- Attorney Condon testified that he has recently been diagnosed with attention deficit disorder and is taking medication to help him "focus" and "operate in more of a controlled manner." While the Court is unqualified to assess whether this condition may explain his conduct, it is a working hypothesis.
- Respondent Robert Levine (Attorney Levine) of Rockland, County of Knox, State of Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Levine was admitted to the Maine Bar in 1974.
- On or about December 15, 2004, Robert Rubin, Esq. on behalf of his client, Steven Dunn, filed a complaint with the Board against Attorney Levine. [Board Exhibit# 1] The complaint filed by Mr. Dunn involved a family law matter (Dunn v. Dunn) in Rockland District Court.
- On or about January 24, 2005, Attorney Levine filed a response to Mr. Dunn's complaint with the Board. [Board Exhibit # 2] Thereafter, the Board received rebuttals and replies from both complainant and respondent. [Board Exhibits #3, #4 #5, #6 and #7]
- On April 25, 2005 a panel of the Grievance Commission reviewed Attorney Levine's actions in this matter, and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules for which appropriate discipline should be imposed as provided for in those rules. Therefore, that Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission. [Board Exhibit #8]
- The incident which constituted Attorney Levine's misconduct is as follows. In July 2004, Attorney Levine ran into the GAL (also a casual friend of his) who had served the court during Mr. Dunn's case. The divorce was finalized in March 2004 and the GAL mentioned to Levine that her fees had not yet been paid by Mr. Dunn.
- Although Attorney Levine had not served as counsel in the matter, his law partner had and because of that fact, Levine recognized the existence of the case. He offered to help the GAL secure her payment.
- Attorney Levine returned to his office and directed his secretary to request a Writ of Execution from the District Court. The secretary prepared a letter to the District Court applying for the Writ.
- A careful review of the file would have revealed that no final order for GAL fees had issued from the District Court. All that existed was the May 2, 2003 Order for Appointment of Guardian ad Litem [Board Exhibit #9]. That Order provided for a division of the initial fees to pay the GAL. It did not provide for any other division of fees and instead, directed "[that issue] is reserved for decision at time of final hearing." [Board Exhibit #9.]
- On August 30, 2004 a Writ of Execution [Board Exhibit #10] issued against Mr. Dunn for the amount of $1100.00.
- On December 8, 2004 the District Court Clerk wrote an internal memo questioning whether it was proper to have issued the above mentioned Writ. She wrote her memo in response to Attorney Robert Rubin's request for information about the issuing of that Writ. [Board Exhibit #11]
- On that same day, the District Court (Worth, J) vacated the Writ of Execution finding that "[it was] improvidently issued; not for a sum certain. See 5-2-03 order." [Board Exhibit #12]
- Attorney Levine's Answer to the Disciplinary Petition largely admitted the facts and allegations. However he denied any intentional misconduct. Attorney Levine accepts responsibility for the harm caused by his inaccurate request and he acknowledges his duty to ensure that he exercise diligence and due care.
- Attorney L'Hommedieu of Lewiston, County of Androscoggin, State of Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney L'Hommedieu was admitted to the Maine Bar in 1995 and has been practicing law in Lewiston, Maine since 1997.
- On October 23, 2001, the Court suspended Attorney L'Hommedieu for violations of Maine Bar Rules 3.1(a); 3.2(f)(3)(4) and 3.7(e)(1)(i). See Bar 01-03, Board of Overseers of the Bar v. E. Christopher L'Hommedieu, Esq.
- On February 14, 2005 Cynthia McConnell filed a grievance complaint against Attorney L'Hommedieu.
- The specifics of Attorney L'Hommedieu's conduct are outlined below.
- On or about February 18, 2004 Attorney L'Hommedieu, on behalf of his client (Henry McConnell/defendant), filed a post-Divorce Motion to Enforce (regarding contact between Mr. McConnell and the minor children) in the Lewiston District Court. At that time, Mr. McConnell was stationed at an U.S. Air Force Base in Turkey. Ms. McConnell's attorney cross-claimed and eventually filed proposed child support orders, based on her estimate of Mr. McConnell's income.
- On July 1, 2004, the District Court issued an "Interim Order and Order on Motions for Entry of Judgment and Sanctions". A copy of that Order was received from the court by Attorney L'Hommedieu on July 6, 2004. Contained within the Interim Order was a direction for the "Defendant to file a Child Support Affidavit with income from all sources ... within 20 days of the date of the Order".
- Issued with the Interim Order was an "Interim Child Support Order" which increased Mr. McConnell's child support obligation.
- Attorney L'Hommedieu failed to file Mr. McConnell's child support affidavit within that court-ordered time. Although by August 6, 2004, Attorney L'Hommedieu had two copies (faxed by his client) of the affidavits, he chose to not so inform the court or to then file the affidavits. Instead, he determined whether the "employment fringe benefits" portion which his client completed, was truly considered income. In his response to the Board, Attorney L'Hommedieu stated as follows:
"After the 8/3/04 [case management] conference, the undersigned received a faxed copy of Henry's new child support affidavit. Henry had included in this affidavit employment fringe benefits of up to $27,384.00, an extraordinary figure. It was in no way clear what these fringe benefits were, and the undersigned was not convinced they needed to be included in Henry's child support affidavit."
- Multiple other motions and letters were filed by counsel for Ms. McConnell and by Attorney L'Hommedieu concerning discovery and procedural disputes, including a Motion for Default by Ms. McConnell's counsel seeking a child support order based on her estimate of Mr. McConnell's income. While in possession of his client's two child support affidavits, Attorney L'Hommedieu filed an "Offer of Judgment" using the lower child support figure proposed in Ms. McConnell's Motion for Default. However, Attorney L'Hommedieu now acknowledges that he had a duty to disclose accurately to the Court, irrespective of what Ms. McConnell had asked the Court for.
- The offer of settlement was rejected by Ms. McConnell's attorney.
- Attorney L'Hommedieu knew when he made the offer of settlement that his client's income, if the fringe benefits were included, was higher than what the complainant or her attorney had estimated the income would be and was higher than the income figure used by the District Court in the Interim Order.
- On or about September 21, 2004 Attorney L'Hommedieu complied with the District Court's order by filing the faxed copies of his client's two child support affidavits. Thereafter, he received the original signed child support affidavits from his client. On or about September 29, 2004 Attorney L'Hommedieu filed the original, signed child support affidavits from his client.
- Attorney L'Hommedieu violated M. Bar R. 3.2(f)(3)(4);
- Attorney L'Hommedieu violated M. Bar R. 3.7(b); 3.7(e)(1)(i);
- Attorney L?Hommedieu's foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).
- whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the attorney acted intentionally, knowingly, or negligently;
- the amount of actual or potential Injury caused by the attorney's misconduct; and
- the existence of any aggravating or mitigating factors.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Raymond J. DiLucci reprimanded for his violations of the Professional Responsibility.
Mr. Huston shall not participate in any court proceedings on behalf of a party other than himself or as a witness, without the prior, specific authorization of Bar Counsel or this Court.
Mr. Huston shall not engage in any conduct that would give the appearance that he is drafting any legal documents or giving any legal advice.
In the event a grievance complaint is received by Bar Counsel concerning alleged conduct occurring on or after this date, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b) instead of before the Grievance Commission under M. Bar R. 7.1(e);
Any apparent violation of any of the conditions of this Order shall be filed by Bar Counsel directly with the Court; and
Mr. Huston shall remain registered on inactive status under Maine Bar Rule 6(c). Following his suspension, Huston shall not thereafter resume the practice of law in Maine without first having complied with all the provisions and requirements of Maine Bar Rule 6(c)(2), (3).
Since 1974, Warren C. Shay, Esquire of Skowhegan, Maine has been an attorney duly admitted to the Maine Bar, actively practicing from an office in Skowhegan and subject to the Maine Bar Rules. During the tenure of his practice in the Maine Bar, Attorney Shay has received two prior dismissals with a warning resulting from prior complaints in 1994 and 2003.
On March 29, 2005, Thomas N. Dube filed against Attorney Shay a grievance complaint arising from the purchase by Dube and two other buyers in common of 27 acres of land from sellers Walter Lamont and Milan Davis on October 9, 2003.
Respondent prepared the deed for the seller and a title opinion for the buyers. The transaction was closed in Respondent's office. Respondent represented both the seller and the buyers with oral consent of the parties but without their informed written consent.
Preceding the Dube land purchase, Respondent had represented the sellers Walter Lamont and Milan Davis in preparing a deed for the sale of an adjoining lot to Anthony Carter. At that time, in June of 2003, the land was owned by both Walter Lamont and Milan Davis.
Respondent prepared the deed to Carter under instructions from the sellers Lamont and Davis and did not represent the buyer. The deed to Carter was signed by the sellers in Respondent's office on June 30, 2003, but without Carter present. The signing was overseen by Attorney Shay's partner, Attorney Michael Talbot. No money changed hands at Respondent's office and no funds were held by Respondent. Instead, Carter paid the purchase price directly to the LeClairs (former owners) and some money to Davis and Lamont, who then used the money to make improvements to the lot.
Although signed by the two sellers in June 2003, the deed to Carter was not filed because Carter's information for the transfer tax form had not been provided and no arrangements had yet been made to pay the transfer tax and recording fees. Both Davis and Lamont were advised oral1y and in writing that the deed could not be filed without fulfilling these requirements.
No information or funds necessary for filing of the deed were received by Respondent's office and the Carter deed of June 30, 2003, was never recorded. Instead, the Carter transaction was consummated by the filing of a new deed, dated June 3, 2004, after Carter persuaded the reluctant sellers to remove certain setback and building height restrictions. Thomas Dube was unaware that the restrictive covenants on the abutting Carter parcel bad changed between the 2003 sale and the 2004 filing of the amended deed.
The Carter and Dube lots, which abut each other, are located along the west side of the Old Greenville Road in Monson, Maine north of a large parcel retained by Lamont. Lamont's residual lot abuts Dube's south line and Carter?s westerly line. Restrictions contained in the Dube deed and in the original Carter deed differed from each other in at least the following respects:
- Carter's original deed had a restriction against buildings higher than 24 feet. Dube's has a building height restriction of 32 feet.
- The Carter deed would have restricted Carter fron1 building within 100 feet of his front line on the Old Greenville Road but he was unrestricted on any other line, including his common line with Dube.
- The Dube lot has no setback from the road but is restricted against building within 100 feet of its back line along the Appalachian Trail corridor.
- Carter's deed included a reservation to the grantors of a right of first refusal, whereas the Dube deed did not. Lamont's large parcel adjacent to Dube and Carter was unrestricted.
- Prior to the Dube closing in October of 2003, Respondent's preliminary title opinion included a reference to the Carter deed from June of 2003, but noted that the deed was unrecorded. In preparing the deed for the Dube buyers, Respondent included as part of the description a reference to the Carter deed of June 30, 2003, indicating that it was to be recorded. Attorney Shay's final title opinion again referenced the Carter Deed as unrecorded. Because of these references, Dube and the other buyers came to rely on the restrictive covenants outlined in the Carter deed.
- Unbeknownst to the Respondent or Walter Lamont, Carter did not agree with the restrictions contained in his unrecorded deed of June 30, 2003. Although he had not accepted that deed, Carter remained living in a camper, while working on his lot. There were no discussions between Dube and Attorney Shay about deed restrictions on the Carter lot.
- After recording Mr. Dube's deed in October 2003, Respondent, on November 24, 2003, sent a copy of the unrecorded Carter deed to both Carter and Lamont asking if it was time to file it. On November 26, 2003, Carter told Respondent he would not accept the deed with the restrictions. Attorney Shay was unaware that his former clients, the buyers of the Dube lot, regarded the restrictions as important and therefore did not notify them of Carter's objection. Thereafter, on a few occasions, Carter showed up at Walter Lamont?s house, acting aggressively and threatening Lamont and his wife. In early spring 2004, there was discussion about Lamont buying the land back from Carter. By May 2004, disgusted with the breakdown of the Carter property deal, Lamont approached Dube inquiring as to whether or not Dube and the others would be interested in buying Carter's property, once Lamont purchased it back from Carter. That option did not materialize because a lesser set of restrictions acceptable to Carter were finally negotiated. Since Carter had already paid his money to Davis and Lamont, Lamont decided not to further agitate the matter. The Carter sale was confirmed on June 3, 2004 with the signing and recording of a new deed.
- Problems continued in the "Carter" property operations. On at least one occasion (May 31, 2004), the Piscataquis County Sheriff's office responded to a theft of one of Dube's culverts and a neighbor's gravestone. The culvert and slate both were found on Carter's land and the officer instructed Dube to take the culvert back to his lot. The following week, Carter dragged the gravestone back to the neighbor's property. On other occasions, Carter's development of his property resulted in further animosity, as he failed to follow the setback and right of way restrictions previously known to the group. When Dube confronted Carter about his "violation" of the restrictive covenants, Carter presented the new deed which no longer contained those limitations.
- On September 7, 2004, Mr. Dube called Attorney Shay to complain that Lamont and Shay had altered restrictions in the Carter deed. Respondent told Dube that he would relay his concerns to Lamont and then did so. Thereafter, Lamont and Dube negotiated between themselves a resolution of their disagreement. The settlement resulted in Lamont?s transfer of an additional seven (7) acres of land that Lamont valued at $40.000.00 to Dube in exchange for a release of all claims against Lamont. At Lamont?s request, Respondent prepared a mutual release and a deed for the seven (7) acres and forwarded both documents to the parties. The original draft of the release would have released Attorney Shay as well as Lamont, but that release was not used when Dube objected. Attorney Shay acknowledges that by continuing to represent Lamont, after the dispute over the land arose, he violated Me Bar Rules 3.4(b)(1) and 3.4(c)(2)(iii). He also acknowledges that if the release had been signed in original form, it would have violated Me Bar Rule 3.4(f)(2)(v).
While an associate at her former law firm, Raymond began representing Lloyd and Melanie Gerow (the Gerows) in a real estate dispute involving a sign for a golf course, which had been placed on the Gerows? property without their knowledge or consent. The Gerows wanted the sign removed, and they retained Raymond for that purpose.
Raymond neglected her legal work in the matter doing little, if anything, for the Gerows. She also misrepresented to them her lack of progress and work on their case, inter alia, by falsely telling them that she had filed a lawsuit for them and that a judge soon was going to sign an order authorizing them to remove the disputed sign. This included directing the Gerows to meet her at the District Court in Waterville where she purportedly was going to personally deliver to them the court order finalizing the litigation (fictitious).
The Gerows appeared at the District Court in Waterville expecting to meet Raymond, but she failed to appear. Raymond also did not timely deliver the Gerows? file to their eventual replacement counsel.
By neglecting the Gerows? case and misrepresenting its status to them, including the court?s signing a fictitious order, Raymond violated M. Bar R. 3.1(a); 3.2(f)(3); 3.6(a) and 3.6(e)(2)(iv).
Raymond has practiced law for approximately six years, and she has no prior disciplinary record.
On April 25, 2002 Gerrity submitted an affidavit to the Board therein confirming his request and placement on inactive status and thereby rendering him unable to practice law in Maine until later being reinstated pursuant to M. Bar R. 6(c) and 7.3(j).
On July 2, 2002 Gerrity submitted to the Board his completed, signed Attorney Registration Statement for Fiscal Year 2003 (FY 03) again therein confirming his inactive status with the Board and consequent inability to practice law.
On May 29, June 11 and June 13, 2003 Gerrity wrote various officials of the Maine Department of Corrections (the Department), including its Commissioner, about inmates at the Maine State Prison.
Gerrity?s letters to the Department were written on his office letterhead clearly identifying him as an attorney at law, argued that the Department was inattentive to the inmates? medical needs, and requested that the Department provide the inmates with better, more humane treatment.
Gerrity?s correspondence with the Department was practicing law. See Opinion No. 79.1 His correspondence also violated M. Bar R. 3.2(a)(1), 3.2(f)(1), 6(c)(1) and 7.3(i)(2)(A) because Gerrity was then an inactive practitioner who had not been reinstated to active status.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Albert Ira Gould is indefinitely suspended from the practice of law in Maine until further order of this Court; and
Albert Ira Gould shall comply with his reporting and notification requirement of M. Bar R. 7.3(i) within 30 days of the date of this Order.
Whalen is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
On or about February 4, 1998 the Androscoggin County District Court (the District Court) ordered Hector Levasseur (Hector) to appear and answer a motion for contempt.
Hector?s appearance before the District Court resulted from a receivership order in a foreclosure action entitled People?s Heritage Savings Bank v. Hector and Susan Levasseur (Susan), Docket Nos. RE: 98-004 ? 98-011.
Hector and Susan were husband and wife, the couple having three adult children: Stacy Thornton (Thornton), Shane Levasseur (Shane) and Jeffrey Scott Levasseur (Jeffrey).
After service of the District Court?s appearance order on Hector, he consulted with E. Christopher L?Hommedieu, Esq. (L?Hommedieu), who later arranged for Whalen to represent him.
On or about May 8, 1998 Whalen later filed a petition for appointment of a conservator with the Androscoggin Probate Court (the Probate Court) requesting it to appoint Hector as Susan?s conservator because of her dementia. The petition stated that ?the Conservator? (Hector) planned on selling joint assets of Hector and Susan and it freely referenced the couple?s prospective Chapter 11 Bankruptcy filing (paragraphs 13 ? 20 below).
In the conservatorship action, Whalen submitted to the Probate Court waivers of notice (the waivers), which Thornton, Shane and Jeffrey allegedly had signed on April 10, 13 and 15, 1998 respectively.
Whalen signed all three waivers of notice attesting that Thornton, Shane and Jeffrey personally had appeared before him acknowledging that they had signed the waivers as their free act and deed.
In fact, Whalen signed the three acknowledgments without the affiants ever personally having appeared before him to acknowledge that they had signed the waivers as their free act and deed.
The signatures of Thornton and Jeffrey were valid. Shane?s purported signature on his waiver, however, might have been false because another person may have signed his name on it without his knowledge or consent. Petitioner and the Respondent agree that Whalen was unaware of any such forgery.
Having signed his waiver, Jeffrey was then on notice of the nature and importance of it, i.e., that Hector had petitioned the Probate Court to be the conservator of Susan?s estate.
Although under the Maine Probate Rules acknowledgements of waivers under oath are not required, Whalen admits acknowledging the three waivers without the affiants personally ever having appeared before him to acknowledge that they had signed the waivers as their free act and deed, which was improper and violated several provisions of the Maine Bar Rules, including 3.1(a) (Conduct unworthy of an attorney), 3.2(f)(3) (Other misconduct: conduct involving dishonesty, fraud, deceit or misrepresentation) and 3.6(a) (Standards of care and judgment: reasonable care and skill).
On or about May 12, 1998 the Probate Court appointed Hector to be the temporary conservator of Susan?s estate, and authorized him to prepare and file a Chapter 11 Petition with the United States Bankruptcy Court (the Bankruptcy Court).
On or about June 17, 1998 Whalen filed a Chapter 11 Petition for Hector and Susan with the Bankruptcy Court.
Hector and Susan owned assets, including real estate worth approximately $1.6 million dollars, and owed debts of about $2.3 million dollars.
The purpose of the Chapter 11 Bankruptcy filing was to try to preserve as much as possible Hector and Susan?s rental proprieties and the income derived therefrom.
On or about July 21, 1998 Hector and Susan and other principals signed an agreement (the agreement), which was designed to allow Hector and Susan to be relieved of their debt on the real estate, to have the case removed from Bankruptcy Court and to allow Susan to apply for governmental benefits.
The agreement called for Hector and Susan to obtain the dismissal of their Chapter 11 case with prejudice and to deliver deeds of the rental real estate to a third party who had previously acquired all mortgage rights from the various banks. In exchange, Hector and Susan were to be relieved of the real estate debt and were to receive a certain amount of cash. Additionally, the third party agreed that upon dismissal of the Bankruptcy case, the party would convey a residential property owned by it. To ensure, however, that Hector and Susan did not refile for Bankruptcy in a manner to expose the third party, it required a separate corporation to be formed by Hector?s brother, Paul Levasseur (Paul). Although the property initially was to be held in a corporate form, the intent was that it would provide a residence to Hector and Susan. It was expected that with the removal of the rental real estate, it would be easier for Susan to qualify for various governmental benefits.
On or about August 3, 1998 and pursuant to the agreement, Whalen filed a motion to dismiss Hector and Susan?s Chapter 11 Bankruptcy Petition.
On or about September 2, 1998 and after hearing, the Bankruptcy Court (Goodman, J.) dismissed Hector and Susan?s Chapter 11 Bankruptcy Petition.
Shortly after the Bankruptcy Court dismissed the Chapter 11 Bankruptcy Petition, Hector discharged Whalen from further representation.
After discharging Whalen and without approval from the Probate Court, the Hazel Street property was transferred to a corporation formed by a friend of Hector?s, Ruby Christiansen (Ruby), who failed to completely honor the agreement in other respects, thereby depleting Susan?s estate. All of this was done without Whalen?s knowledge and after his relationship with Hector had been terminated.
On or about March 2, 1999 the Probate Court ordered Hector to account for his handling of Susan?s estate. By then new counsel had entered his appearance for Hector in the Probate Court.
On or about May 18, 1999 the Probate Court terminated Hector?s conservatorship of Susan?s estate because, based on the inventory Hector had submitted, there were no longer any assets in it for Hector to manage.
Respondent David N. Fisher (Attorney Fisher) of Portland, County of Cumberland, State of Maine, is and was at all times relevant
Attorney Fisher was admitted to the Maine Bar in l966. He is a principal in the law firm of Drummond & Drummond, LLP, having offices in Portland, Maine. Attorney Fisher has no record of prior discipline or sanction under the Maine Bar Rules.
On September 11, 2000, Attorney Fisher applied in his individual capacity to the Cumberland County Probate Court seeking appointment as Personal Representative for the probate estate of Pauline G. Carter. The Probate matter was docketed in Cumberland County as Docket No. 2000-1287.
Attorney Fisher in his individual capacity was duly appointed personal representative in the said matter by the Cumberland County Probate Court on September 26, 2000.
Attorney Fisher employed the firm of Drummond & Drummond, LLP, of which he is a principal, to represent him in his capacity as Personal Representative for the said estate.
Shortly after his appointment as Personal Representative, Attorney Fisher?s wife became terminally ill. She eventually passed away on March 17, 2003. During this same time period, Attorney Fisher attended to her and his family?s needs. He was also experiencing his own medical problems which culminated in knee replacement surgery in the spring of 2002.
On March 19, 2002, Alan S. Carter, one of several heirs to the estate of Pauline G. Carter, complained to the Board that Attorney Fisher was failing to meet ethical standards in the discharge of his professional obligations.
Attorney Fisher admits that his inattention caused delays to the processing of the affairs of the probate estate and that the heirs to that estate were justified in expecting him to perform more efficiently.
Attorney Fisher?s failures included delay in filing of estate tax returns; delay in liquidating stock certificates; and failure adequately to articulate his firm?s billing practices.
Attorney Fisher is apologetic for his conduct. He admits that while his inattention may have been the result of his need to give significant time to dealing with family health problems, he accepts that it does not excuse his conduct. He admits that better professional judgment would have led to delegating responsibility, rather than allowing this matter to be neglected.
Attorney Fisher's billing practice for Pauline G. Carter during her lifetime was unusual in that substantial legal fees were incurred but were postponed until after her death. Ms. Carter was concerned about having enough money to support herself during her lifetime and, as an accommodation, Mr. Fisher agreed to defer any payment with the proviso that if there were sufficient monies in her estate upon her death that the firm?s bill would be paid. That agreement was not reduced to writing.
After Mr. Fisher was appointed Personal Representative of the estate, and given the nature of the billing agreement, he failed to exercise adequate judgment in the performance of his professional commitments when he paid the firm's legal bill which had accumulated over ten years, without notifying the estate's beneficiaries or seeking the Probate Court's approval.
- Attorney Fisher engaged in professional misconduct by failing to exercise his best judgment in the performance of his professional commitments as required by M. Bar R. 3.6(a).
- Attorney Fisher engaged in professional misconduct by neglecting his duties as Personal Representative for the estate of Pauline G. Carter, in violation of M. Bar R. 3.6(a)(3).
- Attorney Fisher's violations of M. Bar R. 3.6(a) and M. Bar R. 3.6(a)(3) constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).
Respondent James J. MacAdam (Attorney MacAdam) of Portland, County of Cumberland, State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules.
Attorney MacAdam was admitted to the Maine Bar in 1981. He is in private practice, having an office at 208 Fore Street, Portland, Maine.
Between 1999 and 2001, Attorney MacAdam represented complainant Theresa Mannette on a claim for workers compensation benefits. In February 2001, Ms. Mannette sought assistance from Attorney MacAdam to appeal a related denial of Social Security benefits. Ms. Mannette never had any direct contact with Attorney MacAdam about her desired appeal; she dealt exclusively with Attorney MacAdam?s legal assistant.
No appeal was ever filed. However, Attorney MacAdam?s legal assistant led Ms. Mannette to believe the opposite. That legal assistant also updated Ms. Mannette periodically about fabricated events related to the non-existent appeal.
Ms. Mannette was not able to protect herself from the misconduct and misrepresentations by Attorney MacAdam?s legal assistant. Attorney MacAdam?s legal assistant was under his direct supervision and accordingly he was in the best position of anyone in his office to detect any misconduct or misrepresentations made by the legal assistant to Ms. Mannette. His failure to do so meant that deceptive practices by his legal assistant went undetected.
Between 1995 and 2001, Attorney MacAdam represented complainant Kathy Ummah. After obtaining a favorable ruling for Ms. Ummah from the Social Security Administration in 1995, Attorney MacAdam undertook Ms. Ummah?s claim for damages in a related civil case. Attorney MacAdam commenced Ms. Ummah?s case with the filing of a complaint in the Cumberland Superior Court on March 15, 2000. On August 30, 2000, the Superior Court dismissed the case with prejudice. Attorney MacAdam sought to have that dismissal vacated by motion dated November 21, 2001; but that motion was denied on April 8, 2002.
Attorney MacAdam should have been aware he was under time constraints in Ms. Ummah?s personal injury case because he filed the complaint on the last day before the expiration of the statute of limitations. Attorney MacAdam could not have had any personal recollection of having taken any further action on behalf of Ms. Ummah between filing her complaint and learning of its dismissal, because he took none. However, Attorney MacAdam accepted false and misleading information about Ms. Ummah?s matter from his legal assistant and made no independent inquiry.
Ms. Ummah was not able to protect herself from the misconduct and misrepresentations by Attorney MacAdam?s legal assistant. By virtue of his position in the firm, Attorney MacAdam was in the best position of any person in the firm to detect any misrepresentations by his legal assistant. His failure to do so meant that the deception and misrepresentation by his legal assistant went undetected.
In August 1999, Ann Marie Rogers retained Attorney MacAdam to represent her in connection with her workers compensation claim against her former employer. Attorney MacAdam twice filed petitions on Ms. Roger?s behalf with the Workers? Compensation Board, and twice (in March 2000 and July 2000) those petitions were dismissed due to Attorney MacAdam?s failure timely to file scheduling memorandums. Ms. Rogers contacted Attorney MacAdam?s law office in July 2000 out of concern regarding the status of her case. Attorney MacAdam?s legal assistant handled the inquiries. The legal assistant provided untruthful and misleading information to Ms. Rogers, convincing her that a hearing was scheduled for September 2000, although such a hearing was never scheduled and never occurred.
In September and October 2000, Attorney MacAdam?s legal assistant gave Ms. Rogers additional false and fabricated documents and information, leading her to believe that a consent decree had been entered and that she would be receiving monetary compensation from her former employer.
Attorney MacAdam accepted his legal assistant?s false and fabricated information and documents pertaining to a forged consent decree without making any independent critical examination of the information.
Ms. Rogers was not able to protect herself from the misconduct and misrepresentations by Attorney MacAdam?s legal assistant. By virtue of his position in the firm, Attorney MacAdam was in the best position of any person in the firm to detect any misrepresentations by his legal assistant. His failure to do so meant that the deception and misrepresentation by his legal assistant went undetected.
- He had mishandled Anderson's legal matter;
- When confronted by Anderson, he did tell him that he "had dropped the ball on his case" and was "sorry" for that;
- He had made no payment on the $50,000 default judgment Anderson had obtained against him;
- He has no malpractice insurance coverage;
- He had "no explanation ... as to a matter of law" to provide why he never informed Anderson about his case between July 26, 2001, and December 19, 2001; and
- he did not return all of Anderson's calls about the status of his case.
- March 11, 1978: "Letter of Reprimand" issued by the Court (Godfrey, J.) for "repeated delay in filing a brief on behalf of a client."
- November 30, 1981: Three-month suspension from practice issued by the Court (Archibald, J.) for violation of M. Bar R. 2(c), 3.2(f)(3), and 3.6(a)(2)(3). Ingeneri's appeal was denied by the Law Court by Decision dated February 9, 1982.
- April 11, 1995: public reprimand issued by Panel C of the Grievance Commission for violation of M. Bar R. 2(c) and 3.6(a)(3).
- Winfred A. Stevens, Esq. is hereby appointed by the Court to serve as the Monitor for Ingeneri for a period of one year commencing October 1, 2004, unless terminated earlier as herein provided or by other order of this Court,
- During the period of supervision, the Monitor shall receive monthly written reports from Ingeneri concerning the current status of matters in which he has been retained to act as counsel.
- The Monitor is a volunteer who shall receive no compensation and who shall be expected to incur no expense.
- Ingeneri will meet with the Monitor within twenty-five (25) days of the date of this Order and thereafter at the call and convenience of the Monitor on a monthly basis, unless the Monitor should determine more frequent meetings are appropriate.
- The Monitor shall have the right to withdraw and terminate that service at any time for any reason the monitor deems sufficient, including for reasons set forth in Paragraph 6 below. In the event of a withdrawal, the Monitor shall notify the Court and Bar Counsel, and Ingeneri shall then cooperate to obtain the services of an alternate Monitor to complete the remainder of the original Monitor's term. If any aspect of the monitoring procedure creates a situation that is, or might be interpreted to be, a conflict of interest under the Maine Bar Rules (for example, if Ingeneri is or becomes opposing counsel concerning a matter involving the Monitor), then the Monitor may adopt anyone of the following courses with the proposed result:
- the Monitor shall cease to act as such and a potential conflict is avoided;
- the Monitor shall continue as Monitor but totally exclude Ingeneri's client and matter in question from the monitoring process, so that no conflict is deemed to exist;
- the Monitor shall continue as Monitor, and obligate his firm to withdraw from the conflicting matter; or
- the Monitor shall continue as Monitor, and obligate Ingeneri not to participate in the matter and to obtain new counsel for his client(s).
- If in the Monitor's judgment it is appropriate, the Monitor shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Ingeneri's reports to him.
- The Monitor shall have no contact with any of Ingeneri's clients and his only contact in the performance of the Monitor's duties shall be with Ingeneri or other persons contemplated by this Order. The participation by the Monitor in the monitoring of Ingeneri's practice shall be deemed not to create an attorney-client relationship between the Monitor and Ingeneri, or between the Monitor and Ingeneri's clients.
- The Monitor shall file a confidential report with the Court on or before November 15, 2004 and quarterly thereafter or sooner if the Monitor deems it necessary, with copies to Ingeneri and Bar Counsel concerning any professional assistance the Monitor has provided to Ingeneri.
- The Monitor will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Ingeneri of which the Monitor becomes aware or any lack of cooperation by Ingeneri with the provisions of this Order.
- In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Ingeneri occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate. In the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly with this Court under Bar Rule 7.2(b).
- Any apparent violation of the conditions of this Order by Ingeneri shall be filed by Bar Counsel directly with the Court.
- Ingeneri shall refer himself to the Maine Assistance Program for lawyers and judges (MAP) on or before June 1, 2004, and will undergo assessment and treatment to the satisfaction of the Director of MAP.
- Ingeneri shall comply with notice provisions of Bar Rule 7.3(i)(1).
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Lunsford Dole Phillips is suspended from the practice of law in Maine for a year and a day, any later reinstatement to practice being in accordance with M. Bar R. 7.3(j)(1) et al.; and
Lunsford Dole Phillips shall comply with his reporting and notification requirements of Maine Bar Rule 7.3(i) within 30 days of the date of this order.
Attorney Philip Desfosses' law office is located in Portsmouth, New Hampshire, but he is also admitted to and engages in the Practice of law in the State of Maine and is subject to the Maine Bar Rules.
In August 2001, Desfosses filed a negligence action for Scott Douglas in the York County Superior Court, that matter being Scott Douglas v. Seth Martel et al relating to a motor vehicle accident that had occurred in August 1995.
On March 8, 2002 Martel's attorney served Desfosses with Interrogatories and Request for Production of Documents, to which answers were not timely filed by Desfosses.
0n June 5, 2002, Martel's attorney wrote to Desfosses about the overdue signed answers to interrogatories and responses to Request for Documents, and also took the initiative to provide an Agreed Upon Motion to Extend the Discovery Deadline (to November 30, 2002).
In July 2002, Douglas moved from Maine to Pennsylvania. Prior to leaving Maine, he provided Desfosses with his new address information in Chambersburg, Pennsylvania.
By October 24, 2002 Desfosses had not filed complete responses to Martel's attorney's discovery requests, causing defense counsel to again seek an extension of the discovery deadline beyond November 30, 2002.
After conducting a conference with counsel on November 5, 2002, the court issued an order containing the following language: " ... because discovery has been outstanding since March 8, 2002 ... (Douglas) shall submit signed responses to the defendants' interrogatories and answer the request for production of documents by November 22, 2002 or the complaint will be dismissed with prejudice."
Although Douglas had initially provided Desfosses with information to answer the interrogatories in the Spring of 2002, Desfosses did not obtain signed answers to those interrogatories. Delay occurred when Desfosses waited until late October 2002 to have a non-attorney member of his staff correspond and ?advise? Douglas that he needed to sign and return the interrogatories she was then sending to him.
Desfosses provided the signed interrogatories to Martel's attorney on November 8, 2002, but failed to fully respond to the Request for Documents by the court-required deadline of November 22, 2002.
As a result, in January 2003, the court ordered Douglas to "answer the request for production of documents in full by January 31, 2003, and pay the defendant's counsel a sanction of $200. Failure to answer the request for production of documents in full by January 31, 2003, will result in a dismissal with prejudice of the complaint."
No such response to the Request for Production of Documents having been filed by Desfosses for Douglas, by order dated March 14, 2003, the court dismissed Douglas's complaint with prejudice "because of (Douglas's) repeated failures to answer discovery requests."
That dismissal was upheld by the Law Court in its decision of Scott Douglas v. Seth Martel et al 2003 ME 132, resulting in this grievance matter being initiated on a sua sponte basis by Bar Counsel.
In its decision, the Law Court found that ?the record contains substantial evidence from which the trial court could have concluded that Douglas, and his attorney, acted with a lack of regard for the deadlines set by the court. Douglas's complaint was dismissed after over a year of discovery, the expiration of several deadlines (two of which included warnings to Douglas that failure to comply would result in a dismissal with prejudice), four extensions and two conferences" (emphasis added).
In his initial defense to this grievance matter, Desfosses claimed that the dismissal was caused by Douglas's failure to respond to Desfosses's many mailings about discovery issues, including signing and returning the interrogatories he had earlier answered.
Documents from Desfosses' file included copies of three virtually identical boilerplate unsigned form letters from him dated June 10, October 28 and November 8, 2002, each being addressed to Douglas and containing this same very limited language:
- Although the timing of those letters coincided with relevant events, e.g. Martel's attorney's efforts on June 5, 2002 and October 24, 2002 for extensions of the discovery deadlines, and the court's discovery sanction order of November 5, 2002, none of those three letters contained any information whatsoever identifying what was actually enclosed with each respective mailing for this client's attention.
- In any event, Desfosses' letters dated October 28 and 30, 2002 were not received by Douglas until November 5, 2002 because Desfosses used a different address for Douglas in Chambersburg, Pennsylvania than Douglas was in fact using.
- Desfosses now agrees that he should have better monitored his many letters to Douglas and practiced better case management skills instead of using the standard impersonal form letters he had sent to Douglas on June 10, October 28 and November 8, 2002.
- He also agrees that when he had not received any response from Douglas after he moved to Pennsylvania, he should have personally confirmed that his correspondence had been correctly addressed to Douglas.
- Desfosses concedes that he allowed delays to occur in responding to Martel's counsel's discovery requests, which resulted in the dismissal of Douglas's action.
- Desfosses has apologized to Douglas for the resulting final dismissal of his personal injury matter, and properly notified his legal malpractice carrier of that court-ordered dismissal.
- Desfosses has no prior disciplinary record on file with the Board of Overseers of the Bar.
The Respondent, Paul K. Marshall, Esq. of Kingfield, County of Franklin, State of Maine was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
On or about September 30, 1997 Tina Taylor retained Attorney Marshall to represent her in a personal injury matter (the first P.I. case) arising from a motor vehicle accident on August 29, 1997. Sometime after Mr. Marshall began representing Ms. Taylor she married Clifford Taylor, II.
During October, 1997 and thereafter Mr. Marshall and the adjuster for Commercial Union Insurance Company (CU) corresponded with regard to Ms. Taylor?s automobile accident case. On September 14, 1998 Mr. Marshall wrote to CU enclosing a copy of her medical bills and records and stated that he estimated the present settlement value of her first P.I. case to be a specific well into the six figures.
During this time Mr. Marshall was also the President, Director and Secretary/Treasurer of Trident Ventures, Inc., a Maine Corporation that owned land in Franklin County, Maine. His wife and son were the other directors. The stockholders of Trident at the time were his children, having earlier received a transfer of Marshall?s stock. This land had been purchased by Trident Ventures, Inc. for purposes of development and was on the market for sale. Ms. Taylor?s husband, Clifford, owned a parcel of land that he had previously purchased from Trident Ventures, Inc. This purchase occurred prior to Mr. Marshall?s representation of Ms. Taylor. Ms. Taylor became interested in purchasing the adjacent parcel of land after discussing it with her husband and walking the land. She was aware and under the impression that Mr. Marshall, her attorney in the personal injury case, was the owner of the land that was for sale. She then approached Mr. Marshall and inquired about buying a parcel of land. Marshall said that the land was for sale and quoted a purchase price. On or about September 15, 1998 Ms. Taylor entered into a ?Land Installment Contract?1 (the land contract) with Trident Ventures, Inc. (Trident) in which Trident agreed to sell to Ms. Taylor the 17 acre parcel of land for $17,000.
Attorney Marshall prepared the land contract. At the time he prepared the land contract he was acting both in the capacity as attorney for Ms. Taylor in her personal injury case, and as attorney for Trident and as Trident?s President.
Under the terms of the land contract Ms. Taylor agreed to pay Trident the $17,000 in the following manner:
- $5,000 either at the time Ms. Taylor and Trident executed the land contract or when she received the check in that amount from State Farm Insurance Company (State Farm) and
- $12,000 when Ms. Taylor received the expected settlement proceeds from her first P.I. case in which Mr. Marshall was her attorney.
- According to Ms. Taylor, when she met with Mr. Marshall concerning the land he told her that he owned the land and would give her a good deal on the land. They discussed the terms, which she understood to be a $5,000 down payment and that when the personal injury case settled, she would pay off the rest. According to Ms. Taylor, Mr. Marshall said that if the case settlement didn?t come out right, ?we would talk about that later?. Her impression was that Marshall owned the land and that Trident was a real estate entity for him to sell the land. He did not tell her the connection between Trident and him or that he was an officer or director of Trident. Marshall never explained to her the terms of the installment contract, and said that he was losing money on the sale. He did not explain any conflict of interest that he might have in representing her and being involved in the sale as an officer or director of Trident. At the time she had the meeting with Mr. Marshall about the purchase of the land, Ms. Taylor indicated that she was satisfied that it was a fair price and a good price based on conversations she had with her husband about the land.
- According to Mr. Marshall he is not sure whether or not he discussed his relationship with Trident to Ms. Taylor as he did not consider himself to be the owner of the land at the time of the purchase. He testified that he structured the land contract as he did because the facts of this matter did not fit within the statutory definition of a land installment contract and that she was unable to make five or more subsequent payments as required by 33 M.R.S.A. ?481. Accordingly he fashioned a land contract that he believed could meet her financial situation given what he believed to be the likelihood of a settlement in the personal injury case. According to Mr. Marshall, at that time he advised Ms. Taylor to seek independent advice of counsel and told her that she had the right to take the contract to another lawyer and he suggested that she do so. At that point she took a draft of the document with her and he thinks that she discussed it with her husband. Mr. Marshall acknowledges that he did not discuss with Ms. Taylor what would happen if she couldn?t settle her personal injury case. At hearing, when asked what he would have done if she had changed her mind about the transaction, and wanted her down payment back, he stated he probably would have cancelled the deal. He claims she never asked for her money back, or asked to be let out of the deal.
It is undisputed that Ms. Taylor did not consent in writing to waive any conflict that Mr. Marshall might have with respect to the transaction. - On December 14, 1998 Ms. Taylor retained Mr. Marshall to represent her in another motor vehicle accident, (the second P.I. case) that she had been involved in on December 1st. On or about March 15, 1999 the adjuster for Commercial Union wrote to Mr. Marshall concerning Ms. Taylor?s first P.I. case and offered to settle the case for $15,000, substantially below the demand initially made by Mr. Marshall. Mr. Marshall notes that his demand was originally very high because he believed that there was a causal connection between the accident and a subsequent medical condition of Ms. Taylor. As it turned out, after further investigation, Mr. Marshall became convinced that there was no connection.
- At the end of June, 1999 Ms. Taylor and Clifford desired to purchase a saw mill and went to the Androscoggin Valley Council of Governments (AVCOG) for a loan. Ms. Taylor and Clifford Taylor represented themselves in the negotiations with AVCOG. AVCOG notified Mr. Marshall in writing that AVCOG was requiring a mortgage on the 17 acre parcel that was under contract with Trident, and needed an assignable interest in the personal injury settlement insurance proceeds in the amount of $12,000 until the case settled. AVCOG asked Mr. Marshall to draw up the documents. Mr. Marshall prepared and witnessed the requested documents.
- In July 1999 CU sent a settlement check in the amount of $20,250 to Mr. Marshall as a proposed settlement of the underlying claim in the first P.I. case. Mr. Marshall testified that upon receipt of the settlement draft he discussed the proposed offer of settlement with Ms. Taylor and advised her to reject the offer. He claims that Ms. Taylor concurred and that he then marked the draft ?void? in her presence. Ms. Taylor claims that she never saw the check until February 12, 2000, when she went to Marshall?s office to retrieve her file (as she had apparently been talking to another lawyer about her legal matters). At that time she claims a check marked ?void? fell out of the file onto the floor. She claimed that before this time she asked Mr. Marshall whether the insurance company had made any offer and he had told her no. At that time, she claims he explained that he had voided the check because he did not think it was enough money. She testified that if she knew there was an offer of $20,250 in July, 1999 she would have taken that money. Although Ms. Taylor says that he did not relate to her offers that were put forth by Commercial Union, Ms. Taylor did admit that she recalled talking to Mr. Marshall about a $15,000 offer and that he said it was not enough and that she agreed. According to Mr. Marshall, Ms. Taylor was in his office often and he kept her informed as to the progress of her case.
- On February 12, 2000, Ms. Taylor asked Mr. Marshall for her money back. He told her she would have to write to the President of Trident. She also wanted to get the P.I. file back so that she could give it to Attorney Ronald Cullenberg who she had consulted about the case.
- In early February 2000, Ms. Taylor consulted with Attorney Ron Cullenberg concerning a domestic matter and about her two personal injury cases which Marshall had been handling. Upon being made aware of Mr. Cullenberg?s involvement, Mr. Marshall was reluctant and had questions concerning the ethics of turning over the file to Mr. Cullenberg under the circumstances then presented. After being advised by the Board of Overseers that he should turn over the files, he attempted to make contact with Mr. Cullenberg, but was informed that he no longer represented Ms. Taylor (he later mailed the file to Ms. Taylor).
- Around this same time Mr. Marshall was informed that Ms. Taylor had settled her first personal injury claim directly with CU. It was Mr. Marshall?s understanding that Ms. Taylor had settled her case directly with the insurance company for $24,000, which included a payoff of State Farm?s medical payments lien of $3,750 netting $20,250 to Ms. Taylor.
- On April 25, 2000 Trident Ventures, Inc., under the signature of Paul K. Marshall, President, sent a letter to Ms. Taylor in which Mr. Marshall stated that it had come to his attention that Ms. Taylor had settled her personal injury claim relating to a motor vehicle accident directly with the insurance carrier and that upon such settlement, she was to have paid the sum of $12,500 to Trident Ventures as the balance due on the land installment contract executed on September 15th with an addendum executed October 1, 1998. Mr. Marshall as President of Trident Ventures made formal demand on Ms. Tina Taylor in that letter for payment set forth in an enclosed Notice of Default and Right to Cure and Intention to Sell. The Notice of Default and Right to Cure and Intention to Sell was signed by Paul K. Marshall, President of Trident Ventures and stated that Ms. Taylor had broken her real estate installment contract with Trident Ventures, advised her that she was late in making payments, demanded prompt payment under the terms of the contract in the amount of $12,500 and stated that if she did not pay the total amount due by the last date for payment, Trident Ventures might exercise its rights against her under law, including the sale of the land. On May 17, 2000 Trident Ventures under the signature of Marshall wrote another letter to Ms. Tina Taylor stating that he had received a telephone message from her and indicating that if she is ready, willing and able to pay the balance due on the contract in exchange for a certified check in the amount of $12,500, she would received a warranty deed to the property in question.
- According to Mr. Marshall, Ms. Taylor never paid the $12,500, and Trident Ventures retained the $4,500 down payment pursuant to the terms of the land contract. The land subject to the land contract (as well as the remaining acreage owned by Trident, totaling 43 acres) has been sold by Trident for $30,000.
On or about August 31, 1961 and January 26, 1962 Bessie M. Johnson (Johnson) conveyed certain real estate (the Johnson Property) to Winifred S. Bridges (n/k/a Winifred S. Moores [Winifred]).
On an unknown date Winifred later married David G. Moores, Sr. (David), and on or about February 23, 1996 Peterson began representing both David and Winifred by drafting their Wills and by discussing with them the creation of a joint tenancy regarding the Johnson Property.
On or about March 6, 1996 and because of their joint representation by Peterson, Winifred conveyed the Johnson Property to Winifred and David as joint tenants with warranty covenants.
Pursuant to 33 M.R.S.A. ?159, Winifred's conveyance to the couple vested in them a joint tenancy with right of survivorship, and under 14 M.R.S.A. ?6501, either Winifred or David could thereafter have partitioned the property by a civil action. Either party also could have broken the joint tenancy by conveying their undivided one half interest to a third party (See paragraph #9 below).
Contemporaneously with Winifred's conveying the Johnson Property to the couple as joint tenants, David also signed his Last Will and Testament, which Peterson had prepared for him.
On or about November 20, 1998 Peterson again represented Winifred and David by revising their Wills and preparing a health care power of attorney for David.
On or about January 6, 1999 David signed the revised Will that Peterson had drafted for him.
David's 1999 Will differed significantly from his 1996 Will concerning the disposition of any real estate, which did not pass to Winifred by right of survivorship. David's 1999 Will also deleted various cash bequests.
On or about September 16, 1999 Peterson prepared two deeds concerning the Johnson Property. In Deed No. 1, Winifred conveyed her undivided one half interest in the property to Peterson as a "straw" thereby breaking David and Winifred's joint tenancy. In Deed No. 2, Peterson reconveyed the same interest in the property back to Winifred, the net effect of both transactions being to convert the couple's former joint tenancy into a tenancy in common with no right of survivorship.
David neither knew of nor consented to the above referenced transactions and to Winifred's unilateral breaking of their joint tenancy as assisted and orchestrated by Peterson.
By helping Winifred to break her joint tenancy with David and establish a tenancy in common with him without his prior knowledge and consent and by failing to decline representation of her, Peterson violated, inter alia, M. Bar R. 3.1(a); 3.2(f)(3),(4); 3.4(d)(l) and 3.5(b)(2)(ii).
On or about July 17, 2003 David executed a new Will in which he bequeathed Winifred the nominal sum of $1.00 if she survived him, and on or about August 20th David complained about Peterson's former client conflict of interest.
On or about September 10, 2003 Peterson responded to David's grievance complaint, his response showing, in part, the following facts:
- On January 30, 1996 Peterson discussed with Winifred and David a complete estate plan including Wills, Powers of Attorney and advanced health care directives;
- Because of Winifred and David's mutual objectives in 1996, Peterson advised Winifred to make David a joint owner of the Johnson Property;
- On or about November, 1998 and at Winifred and David's request, Peterson prepared changes to their Wills and also to David's health care directive;
- On or about September 3, 1999 Winifred visited Peterson at his office alone stating that: 1) the joint tenancy transaction of 1996 had been a mistake; 2) she did not trust David to ensure that Winifred's side of the family would receive an equal inheritance if she predeceased him; and 3) she had made David a joint owner of the Johnson Property because she was afraid of and intimidated by him;
- During her office visit of 1999 Peterson discussed with Winifred breaking the joint tenancy as well as the possibility of her seeking a divorce with other counsel; and
- Peterson could not dispute that breaking the joint tenancy between Winifred and David appeared to directly conflict with the advice he had given the couple at their first meeting on March 6, 1996.
- On or about September 26, 2003 Peterson wrote Fernand A. Martineau, Esq. (Martineau), successor counsel for David, enclosing copies of Peterson's files concerning his representation of David Peterson also stated that he felt badly and, reiterated that Winifred specifically had instructed Peterson not to contact David or her home.
Neglect of client matters, including failure to timely track and calendar litigation deadlines and, in one case, the applicable statute of limitations thereby resulting in the loss of one client's case and the potential for significant damage to his clients in other cases.
Failure to timely communicate with clients about case developments as they occurred
Lack of proper adherence to the Rules of Civil Procedure and court protocol.
In one case multiple conflicts of interests, a misrepresentation, and the improper handling of client trust funds, i.e., Count IV (sua sponte) of the information.
- The logistical difficulties inherent in managing a busy solo practice focused primarily on litigation, including taking on more work than he can satisfactorily and competently handle.
- Lack of objectivity about his clients' cases and a too close/emotional identification and personal involvement in his clients' causes.
- Stress including family illness and the death of his father.
- Participation in the Naval Reserve, which frequently requires him to be absent from his office for significant periods of time without adequate backup support.
- Persistent and misguided use of the defense mechanism of "flight avoidance."
Mr. Whalley shall submit his practice of law to the monitoring of David W. Kee, Esq. of Bucksport, Maine.
Mr. Kee shall be a volunteer, shall receive no compensation and shall not be expected to incur any substantial disbursements.
Mr. Whalley will meet with Mr. Kee at Mr. Kee?s calling and convenience, on a bi-weekly basis, unless Mr. Kee determines that more frequent meetings are appropriate.
Mr. Kee shall have the right to withdraw and terminate his services at any time for any reason that he deems necessary. If he does so, he shall notify the Court, Bar Counsel and Mr. Whalley of his withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
If any aspect of the monitoring procedures creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules, Mr. Kee may adopt anyone of the following courses with the proposed result:
- Mr. Kee ceases to act as monitor and a potential conflict is avoided.
- Mr. Kee continues as monitor, but totally excludes Mr. Whalley's clients' matter from the monitoring process, so that no conflict is deemed to exist.
- Mr. Kee continues as monitor, but withdraws from the conflicted matter.
- Mr. Kee continues as monitor, and obligates Mr. Whalley not to participate in the matter and to promptly obtain replacement counsel for his client(s).
- If in Mr. Kee's judgment it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. Whalley's reports to him.
- Mr. Kee shall have no contact with any of Mr. Whalley's clients, Mr. Kee's only contacts in the performance of his monitoring duties being with Mr. Whalley or other persons contemplated by this order.
- Mr. Kee's participation in the disposition of Mr. Whalley's disciplinary case and monitoring of Mr. Whalley's practice shall be deemed not to create an attorney-client relationship between Mr. Whalley and Mr. Kee or between Mr. Kee and Mr. Whalley's clients. Specifically, Mr. Kee shall be deemed not to represent Mr. Whalley or any of Mr. Whalley's clients or to be employed by them in any capacity and Mr. Kee shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to Mr. Kee's monitoring of Mr. Whalley's practice, and Mr. Kee shall be immune from any civil 1iability (including without limitation, any liability for defamation) to Mr. Whalley or any of Mr. Whalley's clients.
- Mr. Kee will have the authority to review and examine any of Mr. Whalley's files, except those in which Mr. Kee might have adverse interests under paragraph 5.
- Mr. Whalley shall prepare and present to Mr. Kee reasonably in advance of each meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof.
- Mr. Kee will, as soon as practicable, have Mr. Whalley establish a method of objectively identifying delinquent client matters and have him institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- In Mr. Kee's sole discretion and pursuant to his position as the Director of the Maine Assistance Program for Lawyers and Judges (MAP), Mr. Whalley shall undergo assessment testing at his own expense. Mr. Whalley shall, also at his own expense, enter into contractual follow up with MAP regarding such assessment as Mr. Kee might deem necessary.
- Mr. Kee shall file a confidential report with the Court every three months or sooner if Mr. Kee deems it necessary, with copies to Mr. Whalley and Bar Counsel concerning at least the following subjects:
- measures Mr. Whalley has taken to avoid delinquencies;
- a description of any client matter identified as delinquent; and
- any professional assistance Mr. Kee has provided to Mr. Whalley.
- Mr. Kee shall have the duty to report to Bar Counsel and the Court any apparent or actual professional misconduct by Mr. Whalley of which Mr. Kee becomes aware or any lack of cooperation by Mr. Whalley in the performance of this Order.
- Mr. Kee's monitoring of Mr. Whalley's practice will be for a period of one year, unless terminated earlier as herein provided or by other Order of this Court.
- Bar Counsel may file an Information directly with the Court concerning any new complaints of professional misconduct by Mr. Whalley received by the Board after the date of this order without any Grievance Commission review or hearing.
Respondent Frank B. Walker (Attorney Walker) of Ellsworth, County of Hancock, State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules.
Attorney Walker was admitted to the Maine Bar in 1961. He is a sole practitioner having an office in Ellsworth, Maine. Attorney Walker has received two prior reprimands under the Maine Bar Rules, one in 1991 and one in 2000.
In the decade of the 1990?s Attorney Walker experienced the convergence of several serious personal difficulties, including health problems. As a result, his ability to concentrate on his law practice was severely compromised. His two prior reprimands, as well as this one, have their origin in conduct that occurred during that period.
Attorney Walker has assured the Grievance Commission Panel that he has taken concrete steps to change the course of his life and law practice; that these steps are effective; and that he is committed to continuing them so that he does not repeat the course of conduct that led to this legitimate grievance by Mr. Cook. In stipulating to the findings and disposition of this case, Walker has promised the Panel that the corrective measures he has implemented will remain in effect permanently. Specifically: (i) Walker is receiving effective professional attention for his personal and health difficulties; (ii) Walker has chosen to limit the scope of his law practice to one area of law, transactional real estate; (iii) He does not, and will not, undertake any litigation; and (iv) He has established a close relationship with another Ellsworth law firm, Foster Law Offices, that offers him back up coverage, consultation on substantive areas of law, and accepts referrals from him for matters that he is unable to handle.
The unfortunate fact remains, however, that Attorney Walker?s past handling of the matter complained about by Mr. Cook, violated Maine Bar Rules 3.1(a) and 3.6(a)(3).
On October 2, 2000, the Ellsworth District Court dismissed, with prejudice, Mr. Cook?s Complaint to Quiet Title to certain Hancock County real estate, on account of Attorney Walker?s inattention and inaction.
During the first year of representation, between September 1997 and September 1998 Attorney Walker took appropriate action on his clients? behalf, including filing a complaint, making service of process, negotiating settlement and keeping the clients apprised of the status of their matter. However, this does not excuse his subsequent neglect of the action to quiet title, which ultimately led to its prejudicial dismissal for want of prosecution.
Attorney Walker is apologetic to Mr. Cook for his misconduct.
Respondent James J. MacAdam (Attorney MacAdam) of Portland, County of Cumberland, State of Maine, is and was at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney MacAdam was admitted to the Maine Bar in 1981. He is in private practice, having an office at 208 Fore Street, Portland, Maine.
This Panel issued a public reprimand to Attorney MacAdam on December 1, 2003 for his failures in three cases to represent clients in accordance with the standards established in Maine?s Code of Professional Responsibility.
In each of those three prior cases which resulted in a reprimand, Attorney MacAdam?s failures towards his clients stemmed from his excessive reliance on his former non-lawyer assistant, who intercepted client, court, opposing counsel and other significant communications directed to Attorney MacAdam, engaged in numerous acts of deceit and misrepresentation, and misled clients about the status of their legal affairs.
In this case, the Mooneys suffered harm due to the same excessive reliance on the same legal assistant, but there are other facts that constitute other Bar Rule violations as well.
- As in the earlier cases, Attorney MacAdam accepted false and fabricated information about the Mooneys? legal matter from his non-lawyer assistant. He made no independent inquiries to ascertain the facts. His assistant intercepted all the Mooneys? communications, and misled the Mooneys about the status of their legal matter.
- The Mooneys had no opportunity to protect themselves from the misconduct by Attorney MacAdam?s legal assistant. Only Attorney MacAdam would have been in a position to offer such protection to them. He failed to do so.
- Attorney MacAdam neglected the legal matter entrusted to him by the Mooneys. As a result, on August 30, 2000, the Mooneys? complaint for damages arising from a car accident was dismissed with prejudice by the Cumberland County Superior Court.
- Attorney MacAdam failed to meet the standard requiring a Maine attorney to ?take reasonable measures to keep the client informed on the status of the client?s affairs.? See M. Bar R. 3.6(a). Attorney MacAdam violated this provision in two significant ways:
- Attorney MacAdam engaged in professional misconduct in violation of M. Bar R. 3.13(c) by failing to make reasonable efforts to ensure that the conduct of his legal assistant was compatible with Attorney MacAdam?s professional obligations.
- Attorney MacAdam violated M. Bar R. 3.6(a) by failing to take reasonable measures to keep his clients informed on the status of their legal affairs.
- Attorney MacAdam violated M. Bar R. 3.6(a)(3) by neglecting the Mooneys? legal matter and thus failing to ensure that the Mooney?s complaint for damages was not dismissed with prejudice on procedural grounds.
- Attorney MacAdam?s foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).
A parcel of land in northern Maine3 would be located and a purchase price negotiated with the record owner;4
Mary would enter into a contract to purchase this parcel from the record owner;5
Mary would advertise the property out of state, representing she was record owner; obtain a buyer, enter into a contract to sell the property to that buyer and obtain a ?deposit?6.
A simultaneous closing would then be scheduled between Mary (as purchaser of the parcel) and the record owner of the parcel and between Mary (as Seller of the parcel) and the new purchaser. At this simultaneous closing, any encumbrances on any particular parcel were to be paid in full by Mary prior to passing title to the new purchaser.
The State of Maine Department of Human Services employed Dean Staffieri as a child protective caseworker.
On or about December 9, 1997, Staffieri was in the Cumberland County Courthouse in Portland, waiting for the District Court to hear a child protection matter.
Slosberg represented the person against whom Staffieri had brought the child protection petition, and he was in the courthouse just outside the courtroom waiting for the court to hear the case.
After casually speaking with Staffieri, Slosberg became very agitated and told Staffieri that he vehemently opposed the action the Department was taking against his client.
Uttering at least one obscenity at Staffieri, Slosberg shouted at him. Slosberg's very loud tone of voice and abusive manner towards Staffieri were not called for and were unprovoked.
Slosberg's verbal abuse of Staffieri as described above violated Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(e)(2)(vi).
- On or about August 24, 1997, Slosberg was shopping at the Shaw's Supermarket in the Westgate Shopping Center in Portland.
- Because of complaints made by other Shaw's customers concerning Slosberg's conduct, Greg Guerette, the store manager of Shaw's, asked Slosberg to leave the store. Shortly afterwards, Guerette requested assistance from the Portland Police Department because Slosberg did not leave Shaw's.
- Upon entering the store, the police officers approached Slosberg and asked him what had happened. Slosberg profanely responded to the officers by cursing and yelling at them.
- The officers asked Slosberg to leave Shaw's, but he did so only after the officers threatened to arrest him.
- After exiting Shaw's, Slosberg then tried to re-enter the store stating that he had to pick up his elderly aunt who was shopping. The police officers thereupon arrested him.
- At Slosberg?s request, the officers allowed him to leave upon his accepting a notice for criminal trespass, a charge the Cumberland County District Attorney's Office later dismissed the charge because of Slosberg's health problems (Slosberg suffered a stroke on June 10, 1998).
- Slosberg's misconduct as described above was disruptive to the normal commercial operations of Shaw's Supermarket.
- Slosberg's misconduct at Shaw's violated Maine Bar Rules 3.1(a) and 3.2(f)(2)(4).
- In May of 1994, Daniel Rameau had an accident while he was a customer at the Red Lobster Restaurant in Portland. Rameau later retained Slosberg to represent him on his claims against Red Lobster and its insurance company, Liberty Mutual.
- On or about September 28, 1994, Liberty's claims representative, Jackie Saul, wrote Slosberg concerning Rameau's claim against Red Lobster. Saul's letter to Slosberg informed him that they did not have any report of Rameau's accident at Red Lobster, and asked him to provide additional information concerning the incident.
- On or about December 27, 1994, Slosberg wrote to Saul in reply to her letter of December 7, which apparently had informed him that Liberty was rejecting Rameau's claim. Liberty rejected Rameau's claim because he had failed to report the accident at the time it allegedly had occurred.
- On or about November 20, 1995, Slosberg informed Saul that Rameau had authorized him to sue Red Lobster. The letter offered to settle Rameau's case for $3500.
- On or about December 5, 1995, Robin Moore, another of Liberty's claims adjusters, wrote Slosberg again informing him that Liberty had closed its file on Rameau's claim.
- On or about January 2, 1996, Slosberg wrote Rameau informing him that he would not file suit until he had received from Rameau $100 for the filing fee and $300 for the jury trial fee.
- On or about May 14, 1996, November 7, 1996, and February 17, 1998, Rameau wrote Slosberg asking him if a court could waive the fees because he was indigent and an inmate of the Maine Department of Corrections. Slosberg never responded to Rameau's inquiries concerning waiver of the fees.
- If Rameau was indigent, a court could have waived the fees for him pursuant to Rule 91 of the Maine Rules of Civil Procedure.
- On or about April 11, 1998, Slosberg wrote Rameau informing him that he was not going to handle his claims against Red Lobster any further.
- Slosberg's conduct as Rameau's counsel violated Maine Bar Rules 3.1(a) and 3.6(a).
- On or about December 19, 1996, Mohammed Ahmady retained Slosberg concerning an employment discrimination claim he had against Apria Health Care, Inc.
- On or about March 27, 1997, the United States Equal Employment Opportunity Commission notified Slosberg in writing of Ahmady' s right to sue Apria in either federal or state court.
- The Commission's notification letter also informed Slosberg that any action against Apria had to be filed in the appropriate court within ninety days of his receipt of the notice.
- On or about April 23, 1997, the Maine Human Rights Commission notified Slosberg in writing of Ahmady's right to sue Apria under the Maine Human Rights Act.
- On or about July 21, 1997, Slosberg filed a lawsuit in the Cumberland County Superior Court against Apria on behalf of Ahmady.
- In his complaint against Apria, Slosberg alleged, under various legal theories, that Apria had improperly discharged Ahmady.
- On or about August 25, 1997, Apria removed the Ahmady v. Apria litigation to the United States District Court, District of Maine, and on or about August 29, filed an answer in that court.
- Shortly afterwards, a scheduling order from the U.S. District Court directed counsel of record to file all motions with supporting memoranda by December 30, 1997.
- On or about December 30, 1997, Apria filed a motion for summary judgment against Ahmady, and on or about January 23, 1998, the U.S. District Court (Carter) J.) entered summary judgment against Ahmady.
- The Federal Court noted that:
- Slosberg had not timely objected to Apria's motion for summary judgment; and
- Slosberg had not timely filed suit for Ahmady within the ninety day period provided for under 42 U.S.C. ? 2000e-S(f)(1), as he was directed to do by the Federal Commission's notification letter of March 27.
- On or about January 26, 1998, Slosberg filed an untimely memorandum opposing Apria's motion for summary judgment.
- On or about January 26, 1998, Slosberg filed a motion to vacate the judgment and vacate the order granting motion for summary judgment, which the Federal Court denied on February 18.
- Slosberg's failure to timely file a civil complaint against Apria and his failure to timely respond to the motion for summary judgment were violations by him of Maine Bar Rule 3.6(a) (failure to use reasonable care and skill and neglect of a legal matter).
On or about 1992 Hanson began representing Stubbs on her claims against Aroostook Mental Health Center (Aroostook) concerning multiple incidents of sexual harassment and other issues. Stubbs? claims against Aroostook were serious and involved significant emotional and psychological trauma including post traumatic stress disorder and depression.
Hanson, however, neglected Stubbs? Aroostook claims thereby possibly allowing the statute of limitations to expire on all of them without ever having timely filed suit on her behalf or otherwise ever having properly preserved them. He also actively misrepresented to her his lack of progress and legal work, including failing to inform Stubbs that her Aroostook claims had become stale. In 2003, Hanson made a number of payments to Stubbs from his own personal funds totaling several thousand dollars because she had some medical issues.
Stubbs eventually filed a grievance against Hanson, and in his responses to her complaint, he admitted that he had failed to appropriately prosecute her claims allowing the possibility of the statute of limitations defense to be raised concerning those claims. He also generally acknowledged his misrepresentations to her and sending her money, indicating that his payments originated not from his trust account, but from his office operating account.
In explaining matters, Hanson stated that he started representing Stubbs soon after opening his own solo practice and that the pressures of his practice, including court appointed criminal and child protective work, caused him to neglect her cases and to indulge in ?avoidance? type behavior instead of timely and directly dealing with Stubbs and her legal matters.
Contemporaneously with Stubbs, Hanson also represented Brenda Munn (Munn) against Aroostook on similar issues, e.g., sexual harassment, etc. As with Stubbs, Hanson allowed Munn?s Aroostook claims to become stale, and he also affirmatively misrepresented to Munn his case neglect, not informing her that her cases too had become stale. Munn, however, never formally complained to the Board about Hanson, and Hanson?s explanations for his misconduct handling Munn?s cases are the same as those involving Stubbs.
Hanson now acknowledges his deficiencies in managing his case load, his neglect of Stubbs? and Munn?s legal matters and his inappropriate reliance on avoidant conduct to deal with his professional obligations. He also fully accepts responsibility for mishandling their cases.
On or about June, 2001 Rodway began representing Brenda L. Spearrin (Brenda) in several matters, civil and criminal, all involving her domestic difficulties with her husband, Scott E. Spearrin (Scott).
On October 1, 2001 a Kimberly L. Olden (Olden) filed a small claims action in the Bridgton District Court (the Court) against Brenda generally alleging that Brenda had breached a contract with Olden requiring her to reimburse Olden for snow removal and to return a security deposit for Olden?s rental unit.
While the small claims lawsuit was collateral to the other matters in which Rodway represented Brenda, he advised that he would be willing to assist her in defending the claim, including appearing in court if she desired.
Rodway, however, filed no formal appearance for Brenda in the matter. His and Brenda?s recollections differ about how he would become involved in the case. Brenda thought he would approach the court directly to obtain a hearing date and Rodway believed that Brenda would inform him of the hearing date when she received the Notice of Hearing from the clerk?s office. Because of this honest miscommunication and misunderstanding, neither Brenda nor Rodway appeared at any hearing.
On October 12, 2001 the Court mailed a Notice of Hearing to Ms. Spearrin and Ms. Olden in their case stating that the hearing would be on December 20th at 8:30 a.m. Brenda did not notify Rodway of the hearing date. On that same date the Court entered a default judgment against Brenda in the amount of $836.64 plus costs of $45.00.
On January 2, 2002 Brenda wrote Rodway enclosing a copy of the default judgment, and for the first time he was made aware of the hearing of December 20, 2001. Within several weeks thereafter Rodway told Brenda that he would file a motion to vacate that judgment. However, he failed to do so which he recognizes was a violation of M. Bar R. 3.6(a)(3).
On January 23, 2002 the Court issued a Writ of Execution against Brenda, and also a Notice of Disclosure Hearing for February 21st.
On March 21, 2002 the Court entered a Disclosure Hearing Order therein noting the parties? agreement that Brenda would pay Olden a total amount of $959.00 on a monthly installment basis.
By Order of April 18, 1986, Attorney Mr. Pickering was suspended indefinitely from practice for violations of Maine Bar Rules 3.2(f)(3), 3.6(a)(3), 3.6(f)(2)(iv), and 3.7(b). Subsequently, by Order of April 24, 1987 from Justice Daniel E. Wathen, Mr. Pickering's resignation from the Bar was accepted.
On August 2, 2001, approximately fifteen (15) years from the date of suspension and fourteen (14) years from the Court's acceptance of his resignation, Mr. Pickering filed his Petition for Reinstatement. That Petition is still pending before this Court.
As provided in Bar Rule 7.3(j)(5), Bar Counsel informed Attorney Lyons that he would oppose the reinstatement, and on February 5, 2002, a hearing was held before Panel A of the Grievance Commission. Based upon the entire evidence presented, Bar Counsel then agreed Mr. Pickering had met his burden of proof, and agreed to recommend his reinstatement subject to specific conditions. After brief deliberation, the Panel voted unanimously to recommend that the Court reinstate Mr. Pickering.
On February 12, 2002, the Board of Overseers of the Bar unanimously voted to adopt Panel A's recommendation for Mr. Pickering's reinstatement subject to specific conditions, set out in the order below.
Due to subsequent intervening events, under M. Bar R. 7.3(j)(5)(B) this Court conducted a testimonial hearing on June 17, 2002 to hear evidence whether Mr. Pickering had engaged in the unauthorized practice of law since being employed as of July 2001 as a paralegal by Brian Swales, Esquire. Based upon the evidence presented, the Court is satisfied that Mr. Pickering has not engaged in the unauthorized practice of law, and properly acted as a paralegal in that employment.
Subject to the terms and conditions set out below, Mr. Pickering is hereby reinstated to the Bar and permitted to practice law in the State of Maine.
As a condition of Mr. Pickering's reinstatement, he shall continue to study and refamilarize himself with the areas of law in which he intends to practice by spending at least ten (10) hours per week for ten (10) weeks reading and studying the rules of court, statutes, and cases.
Every two weeks, Mr. Pickering shall sign and send to Bar Counsel for his review and approval an Affidavit attesting to the fact that he has studied the law for at least ten (l0) hours per week during each of the previous two weeks. The affidavit shall list the specific areas of law Mr. Pickering has studied. At the end of the 10th week, once Mr. Pickering has sent Bar Counsel his final affidavit, Bar Counsel shall report to the Court whether Mr. Pickering has satisfactorily fulfilled this condition.
For a period of one year from this date, Mr. Pickering's practice of law shall be monitored by Michael E. Carpenter, Esquire.
Within 30 days of this date Mr. Carpenter will meet with Mr. Pickering to review whether Mr. Pickering has opened an appropriate client's account, has in place a system to identify potential conflicts and to calendar various deadlines, including statutes of limitations, and otherwise is prepared to accept clients. Thereafter, Mr. Carpenter will consult by telephone with Mr. Pickering at least once each month, and more often if circumstances require and meet personally at least every six weeks, to confirm that each of these office management systems remains in place and is properly functioning, and to offer such other suggestions or observations as may be helpful for Mr. Pickering to meet the needs of his clients and comply with this order and the Bar Rules.
In advance of each such telephone conference or meeting Mr. Pickering shall prepare and send to Mr. Carpenter a written report setting out the current status of all pending matters in which he has been retained as counsel. For each matter the report shall briefly outline what activity has occurred in the preceding month and what activity is anticipated for the upcoming month.
Mr. Carpenter, who is a volunteer and will receive no compensation for his service, shall have the right to withdraw and terminate his service as a monitor at any time for any reason, including the reasons set forth in Paragraph 8 below. In the event Mr. Carpenter terminates his services, he shall so notify Bar Counsel, and the Court, and Mr. Pickering shall cooperate in obtaining the service of a replacement monitor who, once appointed by the Court, will serve on the same terms and conditions as Mr. Carpenter.
If any aspect of the monitoring procedure creates a situation which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules (for example if Mr. Pickering is or becomes opposing counsel concerning a matter involving Mr. Carpenter), then Mr. Carpenter may adopt anyone of the following courses with the proposed result:
- Mr. Carpenter shall cease to act as Monitor and a potential conflict is avoided;
- Mr. Carpenter shall continue to act as Monitor but totally exclude Mr. Pickering's client and matter in question from the monitoring process, so that no conflict is deemed to exist; or
- Mr. Pickering shall obtain successor counsel for his client and withdraw from the matter.
- If in Mr. Carpenter's judgment it is appropriate, he shall have the right to contact clerks of court, judges or opposing counsel to determine the accuracy of Mr. Pickering's reports to him.
- Mr. Carpenter shall have no contact with Mr. Pickering's clients and his only contact in the performance of his duties shall be with Mr. Pickering or other persons contemplated by this order. Moreover, Mr. Carpenter's participation in the monitoring of Mr. Pickering's practice shall be deemed not to create an attorney-client relationship between Mr. Carpenter and Mr. Pickering or between Mr. Carpenter and any of Mr. Pickering's clients. However, all communications between Mr. Pickering and Mr. Carpenter that pertain to any of Mr. Pickering's clients shall be deemed communications between a lawyer and a lawyer's representative and, therefore, are subject to and protected by the attorney/client privilege as provided in Evidence Rule 502 and Maine Bar Rule 3.6(h).
- Every four months Mr. Carpenter shall file a confidential report with the Court and provide copies of the report to Bar Counsel and Mr. Pickering. The report shall describe the nature and extent of any professional assistance Mr. Carpenter has provided to Mr. Pickering.
- Mr. Carpenter will have a duty to report to Bar Counsel and the Court any apparent or actual professional misconduct by Mr. Pickering which Mr. Carpenter becomes aware of or any lack of cooperation by Mr. Pickering in the performance of this order.
- If at any time for a period of one year from this date Bar Counsel learns or has reason to believe or receives any complaint that Mr. Pickering has or is failing to fulfill any of the conditions of this Order or has otherwise failed to comply with or abide by the Bar Rules, then Bar Counsel may file directly with this Court and serve on Mr. Pickering a Motion that sets forth the facts that Bar Counsel believes constitute a violation of this Order or the Bar Rules. This Court will then schedule and conduct an appropriate evidentiary hearing to determine whether Mr. Pickering has, in fact, violated the terms of this Order or failed to abide by the Bar Rules. If, after the hearing, the Court concludes that Mr. Pickering has violated this Order or the Bar Rules, the Court may then enter, on such terms and conditions as it deems appropriate, an Order which may, among other things, include a provision that revokes Mr. Pickering's privilege to practice law by disbarment, suspension or by restoring his resignation.
- If Mr. Pickering satisfactorily fulfills the terms and conditions of this Order and no new allegations of misconduct are brought to the Court's attention within one year of this date, then the services of the Monitor shall, without further Order of the Court, be discharged and Mr. Pickering shall be allowed to practice law in the State of Maine without supervision or further monitoring.
- Mr. Pickering shall continue to completely abstain from the use of intoxicating liquor.
- Mr. Pickering shall establish a relationship with the substance abuse committee of the Maine Bar Association, an organization which is also known as Lawyers Concerned For Lawyers, or any successor entity.
- Restitution shall be made by Mr. Pickering within two (2) years of reinstatement to two his former clients, Thomas Grossi in the amount of $1,000.00, and Linwood Doak in the amount of $325.00, plus interest since 1986 in both cases.
A hearing in this matter was held before Panel D of the Grievance Commission on June 21, 2004, at the offices of the Board of Overseers of the Bar in Augusta, Maine. The panel consisted of Patricia M. Ender, Esq., Chair, Stephen Schwartz, Esq. and David Nyberg, Ph.D. There was no objection to the composition of the panel. Bar Counsel Scott Davis represented the Board; Mr. Hayes proceeded pro se.
At all times relevant hereto, Respondent Stephen T. Hayes, Esq. of Augusta, County of Kennebec, State of Maine, was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
Complainant Ruby Gail Card and Respondent Stephen T. Hayes testified. Board Exhibits 1 - 27 were admitted without objection.
- Ruby Gail Card was widowed in August 2001. Her husband had owned several farm-based businesses ? including raising beef cattle, producing and selling maple syrup, and operating a commercial haying enterprise1 - and Mrs. Card had contributed to their operation and financial support. Mr. Card?s will left most of his estate to his children, but reserved a life estate for Mrs. Card. Mrs. Card initially tried to resolve her interests in the estate pro se, but her efforts were not fruitful. To settle the estate, Mrs. Card met with Attorney Hayes on or about April 3, 2002.
- At that meeting, Mr. Hayes advised Mrs. Card of ways she could proceed, including contesting the will, which she did not wish to do. She did wish to clarify her life estate, and to make a claim against the estate. She made it clear that she wanted to pursue her interests in a manner which preserved good relationships with her adult stepchildren and which honored her late husband?s wishes.
- After the meeting, Mrs. Card began to assemble her records regarding her claims. During this time, she also suffered a serious fall, was hospitalized several times and endured a difficult convalescence, all of which interrupted her gathering and sorting of records.
- Despite her injuries, by August 2002, Mrs. Card sent Mr. Hayes documentation of her expenses, and identified in writing her questions and concerns. She followed this with clarifications and corrections, and in September, October (twice) and November 2002 politely inquired about any progress.
- In November 2002, on behalf of Mrs. Card, Mr. Hayes filed a claim against the estate. In December, Mr. Hayes and Mr. Livesay, attorney for the personal representative, with some difficulty, worked to arrange a meeting with their respective clients which was finally held on January 13, 2003.
- Following the meeting, Mrs. Card provided additional information and documentation that had been requested at the January meeting. Mr. Hayes acknowledged receipt, and advised that he would get through the packet in a week and follow up with Mr. Livesay. He wrote to Mr. Livesay on March 5, 2003, indicating that he would go through the materials and would soon forward a copy of the documentation and a new proposal.
- There is no indication that Mr. Hayes reviewed the materials. On May 19, 2003, Mr. Livesay sent Mr. Hayes a detailed proposal describing areas of agreement, proposed dispositions, and requests for additional information. Mr. Hayes did not respond.
- On July 15, 2003, Mrs. Card called Mr. Hayes and eleven days later contacted him by email. She urged a resolution, described her distress at the ongoing uncertainty, and requested a prompt reply. Mr. Hayes did not respond.
- On or about August 6, 2003, Mrs. Card saw Mr. Hayes outside his office where he said he would contact her soon. He also acknowledged receiving messages from her. Mrs. Card sent Mr. Hayes a certified letter on August 21, 2003, and again on September 10, 2003. In early October 2003, Mrs. Card sent an email and left another phone message for Mr. Hayes. Despite her increasing frustration, all of Mrs. Card?s communications were polite and pertinent to her case. Mr. Hayes did not respond.
- In an effort to stir Mr. Hayes to action, Mrs. Card filed a grievance complaint against Mr. Hayes on October 10, 2003. On November 6, 2003 Mr. Hayes acknowledged receipt of the complaint, gave an explanation of work done and admitted that Mrs. Card ?is a nice lady who deserved better attention than she received from me, and I am willing to make it right by her.? He offered, if she wished, to complete the matter without additional cost and to refund what she had paid for services provided in December 2002 and January 2003.
- Mrs. Card replied to Mr. Hayes immediately upon receipt of his response to the grievance complaint. She graciously accepted his apology and offer to complete the work without further charge, noted inaccuracies in his response to Bar Counsel, offered to clarify information she had previously provided, and expressed her appreciation. On the same date, she advised Bar Counsel of her reply.
- On December 2, 2003 Bar Counsel wrote to Mr. Hayes and Mrs. Card, advising that he would recommend a dismissal with a warning. He asked each for a status report by December 12, 2003 regarding what work had been done on Mrs. Card?s matter, and if it had not been finalized, when that was expected to occur.
- Mrs. Card again promptly responded to Bar Counsel. The body of that letter stated in full, ?In response to your letter dated December 2, 2003 regarding the current status of further legal work performed by Mr. Hayes. There has been no further work done. I received a written apology from him and responded to it. To date that is the extent of his communication with me.?
- Mr. Hayes did not respond to Bar Counsel or to Mrs. Card. Upon his receipt of Mrs. Card?s response to the Board, he believed his services had been terminated and he did nothing further. He did not advise Bar Counsel, Mrs. Card, opposing counsel or anyone else of his position.
- Bar Counsel wrote to the parties on December 12, 2003 indicating that the amended recommended disposition to the reviewing panel would be to find probable cause for further proceedings.
- Hearing nothing further from Mr. Hayes, Mrs. Card wrote to him on February 26, 2004 to request her file, which was copied and returned.
- As of June 21, 2004, Mrs. Card was unrepresented by counsel and no further progress had been made on her claim against the estate.
- Mr. Hayes billed Mrs. Card three times, all of which she promptly paid: on May 1, 2002 for 3.25 hours work performed in April 2002; on February 1, 2003 for 4.25 hours work performed in December 2002 and January 2003; on September 1, 2003 for .1 hour phone call on July 15, 2003.
- For an undefined period between April 2002 and October 2003, Mr. Hayes?s computer system was inoperable.
- Mr. Hayes has practiced in Maine for 27 years, and has no prior disciplinary record. He has received one dismissal with a warning.
- Mr. Hayes violated Bar Rule 3.2.(f)(4) by engaging in conduct prejudicial to the administration of justice, Bar Rule 3.6(a) by failing to be punctual and to apprise Mrs. Card appropriately of the status of her case, and 3.6(a)(3) by neglecting the matter she had entrusted to him. Violation of a specific Bar Rule also violates Bar Rule 3.1 and is conduct unworthy of an attorney.
- The panel cautiously finds that Mr. Hayes did not violate Maine Bar Rule 3.3 prohibiting excessive fees. Mr. Hayes?s hourly rate is reasonable for someone of his experience, and the billing records make it clear that he charged for only some of his time. Mr. Hayes, however, stopped working on Mrs. Card?s case and consequently achieved little for her. The panel, in finding no violation of Bar Rule 3.3, relies upon Mr. Hayes?s offer to return $573.75 to Mrs. Card, which should be promptly paid.
- The panel, considering the factors set forth at Maine Bar Rule 7.1(e)(3), determines that the appropriate sanction is a public reprimand. The misconduct alleged was not minor, in that it involved a sustained period of neglect of an entrusted matter and an extended lack of communication with a client. Mrs. Card was injured by the misconduct: her difficult personal loss was made even harder by Mr. Hayes?s failure to resolve the claim, which remains unresolved. The legal profession is diminished by the neglect, as evidenced by Mrs. Card?s resulting ill feelings towards lawyers in general.
- The panel finds the following aggravating factors: a) Except for a time during which she was in poor health, Mrs. Card repeatedly and politely contacted Mr. Hayes, provided him with records that she had sorted for him, and offered to assist him in resolving her case, yet he failed to respond. b) After offering to resolve the matter at no further cost to Mrs. Card, Mr. Hayes irrationally concluded ? and continues to believe - that her prompt response to Bar Counsel relieved him of his responsibilities, including the responsibility to communicate to her and opposing counsel that he no longer represented her. While the panel appreciates that, in general, it is rare for an attorney to continue representation of a client who has filed a grievance complaint, Mr. Hayes had nevertheless offered to continue representation when he received the complaint and he knew that Mrs. Card had accepted his offer. It is of further concern that Mr. Hayes did not respond to Bar Counsel's request for a status report.
- The panel finds the following mitigating factors: a) Mr. Hayes has met his obligations under Maine Bar Rule 3.10 by representing a substantial number of indigent persons without charge, and others at a reduced rate; some of these cases which arose between March and October 2003 involved emergencies and one involved a significant question of law before the Law Court. b) Mr. Hayes experienced a computer system breakdown for a time during the period of representation. c) Mr. Hayes has no prior disciplinary record. d) Mr. Hayes offered to return Mrs. Card?s payment of his February 1, 2003 bill.
On or about December 9, 1998, Frankenfield's grandfather, Wayne Frankenfield (Wayne), passed away.
On or about March 9, 1999, the Cumberland County Probate Court appointed Frankenfield as the Personal Representative (PR) of Wayne's estate.
On or about July 23, 2002, the Probate Court issued its general notice concerning formally probating Wayne's estate and Frankenfield's removal as the estate's PR.
On or about September 27, 2002, the Probate Court entered an order appointing Patricia Nelson-Reade, Esq., as visitor and independent supervisory attorney of Wayne's estate.
On or about October 28, 2002, and January 17, 2003, Nelson-Reade requested Frankenfield's assistance in accounting for Wayne's estate.
On or about February 14, 2003, Nelson-Reade filed her interim report regarding Wayne's estate stating that:
- Frankenfield repeatedly failed to return Nelson-Reade's telephone calls or respond to her written requests for information or even provide the names of the financial institutions in which he had deposited estate assets;
- Beginning in September 2000 Frankenfield had written a total of fifty-one (51) checks to himself with additional cash withdrawals by him from the account in the amount of $11,352, all of those transactions being unexplained and unaccounted for by him;
- Frankenfield had utterly failed to cooperate with Nelson-Reade's investigation or otherwise satisfactorily explain to her his handling and disposition of the estate assets including the above-referenced funds;
- Frankenfield had not prepared any inventories or any interim accountings as ordered by the Probate Court; and
- Except for five cents ($0.05), Frankenfield had completely exhausted and depleted the estate bank account.
- Nelson-Reade's interim inventory of Wayne's estate establishes that at one time Frankenfield possessed and controlled at least $166,583.90 of estate funds.
- Frankenfield has failed to account either to estate beneficiaries, their counsel, Nelson-Reade, or to the Probate Court concerning his handling and disposition of the assets and funds controlled by him in the estate bank account at the Skowhegan Savings Bank.
- Frankenfield has either converted the estate assets and funds to his own use or has failed to keep adequate financial records showing how he has handled and disposed of those funds and assets or both.
- On or about November 25, 2002, Leigh R. Frankenfield (Wayne's brother) filed a grievance complaint against Frankenfield.
- The Court finds that:
- Since his appointment as PR of Wayne's estate on March 12, 1999, Frankenfield consistently has refused to timely perform his duties as PR;
- Frankenfield repeatedly and consistently failed to communicate with estate beneficiaries or their counsel and has not rendered timely accountings of his handling and disposition of estate income and assets despite repeated requests by those estate beneficiaries, counsel, and the Probate Court;
- Despite his initial promise to do so, Frankenfield never timely resigned his position as the estate's PR;
- Frankenfield failed to timely develop a plan and schedule for distribution of estate assets to its beneficiaries and he falsely represented that he was close to doing so; and
- Any fees charged by Frankenfield to perform his duties as PR were excessive either because of his tardiness in doing the required work or because of his complete failure to do it.
- On or about December 17, 2003 a Somerset Grand Jury indicted Frankenfield on criminal charges alleging that he had violated 17-A M.R.S.A. ?? 352, 353, 362 and 903 by his theft and misuse of estate assets with an aggregate value exceeding $10,000.
- On or about July 16, 2003, Dianne V. Dickey (Dickey) submitted a Fee Arbitration Commission Petition (Fee Petition) concerning her having paid Frankenfield $1,000 to represent her in divorce proceedings.
- Dickey's Fee Petition alleges the following facts:
- On or about May 2, 2003, she paid Frankenfield a $1,000 retainer to represent her in divorce proceedings;
- On or about June 2, 2003, Frankenfield notified her that his attempted service of the divorce complaint and summons on her husband by mail was not successful, and that he was then going to have the Somerset County Sheriff s Office serve her husband in hand;
- On or about May 27, 2003, he claimed to have mailed Dickey a letter updating her on the status of her case, but she later confirmed with the North Anson Post Office that it had not received anything from Frankenfield by certified mail concerning service of process;
- On or about July 8, 2003, Dickey determined through telephone conversations with the Sheriff s Office that Frankenfield had never sent any divorce documents to serve on her husband; and
- On or about July 9, 2003, Dickey telephoned Frankenfield leaving a message which he never returned.
- On or about August 13, 2003 Frankenfield responded by facsimile to Dickey's Grievance Complaint and:
- Admitted his neglect of Dickey's case by failing to ensure proper and timely service of process of her husband;
- Stated that he had no office help or staff to assist him returning telephone calls; and
- Acknowledged that Dickey was entitled to a full refund of her retainer because Frankenfield had conferred "no value" to her.
- On or about November 20, 2003, John W. Youney, Esq. (Youney), filed a complaint in the Somerset County District Court (Skowhegan) involving real estate, naming Frankenfield as a party defendant in the above case because as the closing agent he was holding $55,267.02 of escrowed funds.
- On or about January 12, 2004, Frankenfield answered Youney's complaint, inter alia, admitting that he was holding $55,267.02 of escrowed funds.
- On or about March 8, 2004, one of the parties, Jones wrote Youney and Frankenfield proposing that the funds being held by Frankenfield be placed in escrow with the Court or in another trust account.
- On or about April 14,2004, Van W. Ames, President of Whitemore's Century 21 Real Estate Agency, informed Frankenfield that he had no objection to the transfer of the escrowed funds to the District Court.
- On or about June 2, 2004, the District Court ordered Frankenfield within one business day to deposit with the Court all monies in his possession regarding the litigation including, but not limited to the $55,267.02.
- Frankenfield failed to obey the District Court's Order of June 2,2004, and also failed to obey the District Court's further order of June 30, 2004, which extended the date by which he was required to pay the escrowed funds into the Court to July 8,2004.
- The Court concludes that:
- Frankenfield- has failed to account to the District Court concerning his handling and disposition of the $55,267.02 in escrowed funds as described above;
- Frankenfield improperly converted the $55,267.02 in escrowed funds to his own use.
Respondent Jennifer Raymond (Attorney Raymond) of Boston, County of Suffolk, State of Massachusetts, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Raymond was admitted to the Maine Bar in 1997. She is registered as inactive status in Maine and although still registered as active status in Massachusetts, she is not practicing law. She reports that she will likely go inactive in Massachusetts at her next registration period in the Spring of 2006. Attorney Raymond now works as an administrative assistant and she does not intend to practice law anywhere in the foreseeable future.
On December 1, 2003 a Panel of the Grievance Commission issued a public reprimand to Attorney Raymond for her failure to represent her clients in accordance with the standards established by Maine's Code of Professional Responsibility. See GCF 03-191, Report of Findings of Panel E of the Grievance Commission. Since then Attorney Raymond has had one pending complaint against her in Massachusetts, which that jurisdiction is currently investigating.
In the 2003 case which resulted in a reprimand, Attorney Raymond's failure towards her clients concerned real estate law, an area in which she had no real experience. Attorney Raymond performed minimal work on the case and misrepresented to her clients the status and outcome of their legal affairs.
The current grievance complaint from Ms. Rancourt involved the same time period in Attorney Raymond's practice and similar issues of neglect, inexperience and misrepresentation. The specifics of Attorney Raymond's misconduct are outlined below.
In August 2000, Jean Rancourt purchased a house in Rome, Maine and quickly discovered that her water well did not work. She made the mortgage payments for a few months, stopped those payments and then contacted the Volunteer Lawyer's Project for legal assistance.
In approximately November 2000, Attorney Raymond (who was then an associate in a small law firm) agreed to represent Jean Rancourt pro bono. Attorney Raymond's primary legal experience was in family law and she had minimal experience in real estate transactions. During the next two years, Attorney Raymond performed little work on the Rancourt case and misrepresented the status of the case to her client.
Since Ms. Rancourt had stopped making the payments, the mortgage company (Cendant) foreclosed on the property. Ms. Rancourt's damages totaled at least $7091.56. Although there is a factual dispute as to whether or not Attorney Raymond told Ms. Rancourt that she could stop making the mortgage payments, the parties do agree that the result is the same. Ms. Rancourt's case received no attention, Attorney Raymond misrepresented the progress of the case and the property was foreclosed.
When leaving Maine to pursue other employment, Ms. Raymond did not take the Rancourt case with her. She filed no pleadings and began no legal action for Ms. Rancourt.
On September 1, 2004 Ms. Rancourt filed a grievance with the Board of Overseers of the Bar. Attorney Raymond filed her response to that complaint on September 27, 2004.
On November 19, 2004 the complaint was reviewed by a Panel of the Grievance Commission which found that probable cause existed that Attorney Raymond had engaged in misconduct subject to sanction under the Bar Rules. The Panel directed Bar Counsel to prepare and file a formal Disciplinary Petition before the Grievance Commission.
Attorney Raymond's Answer to the Disciplinary Petition largely admitted the allegations. Attorney Raymond violated the following provisions of the Code of Professional Responsibility:
- Attorney Raymond violated M. Bar R. 3.6(a) by failing to take reasonable measures to keep her client informed on the status of her legal affairs;
- Attorney Raymond violated M. Bar R. 3.6(a)(3) by neglecting Ms. Rancourt's legal matter and thus failing to ensure that her client's interests were protected;
- Attorney Raymond's foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a); 3.2(f)(3); and 3.6(e)(2)(iv).
- whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the attorney acted intentionally, knowingly, or negligently;
- the amount of actual or potential injury caused by the attorney's misconduct; and
- the existence of any aggravating or mitigating factors.
At all times relevant hereto, Smith was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
By a Divorce Settlement Agreement date February 24, 2000, which was incorporated in a divorce judgment, in the matter of Rebecca A. Devost vs. Rodney L. Devost (Madawaska District Court Docket No. MAD-FM-00-2), Defendant Rodney L. Devost (Rodney) was thereby ordered and required to contribute to mortgage payments on the parties' former homestead at 25 High Street, Van Buren, Maine. This property continued to be owned by the parties as joint tenants, but sole possession was awarded to Plaintiff Rebecca A. Devost (Complainant).
On March 13, 2002, Smith was appointed Conservator of the Estate of Rodney Devost.
In June, 2002, Smith learned that Rodney's Veteran Administration benefits had been substantially reduced retroactively, effective April 1, 2000.
Beginning in October, 2002 Smith stopped making any contribution to the mortgage payments, for the stated reason that there were insufficient funds available for both the mortgage payments and the support of Rodney. This resulted in foreclosure proceedings being initiated against Complainant and Smith as Conservator.
The ultimate result of those foreclosure proceedings was that the property of Complainant and Smith as Conservator for Rodney was foreclosed upon and they lost the property.
At no time did Smith take any action in any court seeking judicial direction or relief as to the reduction in Rodney's benefits or any inability of Smith to fulfill the financial obligations of Rodney. In particular, Smith did not seek a modification of the divorce judgment in the District Court to reduce Rodney's obligations thereunder to reflect the reduction in benefits.
At no time did Smith make any effective efforts to attempt an extra judicial workout of what he perceived to be his inability to satisfy the court-ordered financial obligations of Rodney.
We find that Smith?s conduct resulted in injury to Complainant and Rodney, although the extent of their injury is speculative owing to the overall financial difficulties faced by Complainant and Rodney, and that there is potential injury to the legal system and profession resulting from Complainant?s disregard of the District Court Judgment.
Considering the above facts the Panel finds that Smith (a) violated Maine Bar Rule 3.2(f)(4) in that by failing to seek a modification of the District Court Order or take any other action other than to ignore such Court Order, he engaged in conduct which is prejudicial to the administration of justice, and (b) that Smith violated Rule 3.6(a), in that by the such inaction he failed to employ reasonable care and skill and to apply his best judgment and the prompt performance of his professional services as a lawyer in his capacity as Conservator of the estate of Rodney.
Miller shall submit her practice of law to the monitoring of Attorney Jane Skelton (hereinafter Attorney Skelton) of Bangor, Maine.
Attorney Skelton shall be a volunteer, shall receive no compensation, and shall not be expected to incur any substantial disbursements.
Miller will meet with Attorney Skelton at Attorney Skelton's calling and convenience on a monthly basis, unless Attorney Skelton determines that more frequent meetings are appropriate.
Attorney Skelton shall have the right to withdraw and terminate her services at any time for any reason that she deems necessary. If she does so withdraw, Attorney Skelton shall notify the Court, Bar Counsel and Miller of that withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
If any aspect of the monitoring procedures creates a situation which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules, Attorney Skelton may then adopt anyone of the following courses with the proposed result:
- Attorney Skelton shall cease to act as monitor and a potential conflict is avoided.
- Attorney Skelton continues as monitor, but totally excludes Miller's client's matter(s) from the monitoring process, so that no conflict is deemed to exist.
- Attorney Skelton continues as monitor, but withdraws from the conflicted matter.
- Attorney Skelton continues as monitor, and obligates Miller not to participate in the matter and to promptly obtain replacement counsel for her client(s).
- If in Attorney Skelton's judgment it is appropriate, she shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Miller's reports to her.
- Attorney Skelton shall have no contact with any of Miller's clients, Attorney Skelton's only contacts in the performance of these monitoring duties being with Miller or other persons contemplated by this order.
- Attorney Skelton's participation in the disposition of Miller's disciplinary case and monitoring of Miller's practice shall be deemed not to create an attorney/client relationship between Miller and Attorney Skelton or between Attorney Skelton and Miller's clients. Specifically, Attorney Skelton shall be deemed not to represent Miller or any of Miller's clients or to be represented by them in any capacity, and Attorney Skelton shall not have any responsibility of any nature to them. Moreover, the attorney/client privilege shall not apply to Attorney Skelton's monitoring of Miller's practice, and Attorney Skelton shall be immune from any civil liability (including without limitation, any liability for defamation) to Miller or any of Miller's clients.
- Attorney Skelton will have the authority to review and examine any of Miller's files, if necessary, except those in which Attorney Skelton might have adverse interests under paragraph 5.
- Miller shall prepare and present to Attorney Skelton reasonably in advance of each meeting a list of all her current clients, showing each pending client's matter with a brief summary and calendar of the status thereof.
- On or before January 1, 2005, Attorney Skelton will have Miller establish a method of objectively identifying delinquent client matters and have her institute internal checks and controls to make her practice appropriately responsible to the needs of her clients. Within that same time period and to Attorney Skelton's satisfaction, Miller shall also establish adequate time sheet, billing, and accounting systems to monitor both her and her clients' respective financial obligations to one another and to properly account to her clients.
- Commencing on February 1, 2005, Attorney Skelton shall file a confidential report with the Court every three (3) months (or sooner if Attorney Skelton deems it necessary) with copies to Miller and Bar Counsel concerning at least the following subjects or requirements:
- Measures Miller has taken to avoid delinquencies.
- A description of any client matter identified as delinquent.
- Any professional assistance Attorney Skelton has provided to Miller.
- As part of Miller's compliance with the annual completion of the required 11 continuing legal education (CLE) credit hours for both calendar year 2003 (for which she is currently still delinquent in her CLE compliance) and calendar year 2004 under Maine Bar Rule 12(a), during the period of the "suspended suspension" of her right to practice law she will attend at least eight (8) credit hours of live, i.e., not self-study, CLE presentations dealing with office practice management issues, including attending at least that portion of the Maine State Bar Association's "Bridging the Gap" presentation in November 2004 that relates to such matters.
- Attorney Skelton shall have the duty to report to Bar Counsel and the Court any apparent or actual professional misconduct by Miller of "which Attorney Skelton becomes aware or any lack of cooperation by Miller in the performance of this Order.
- Attorney Skelton's monitoring of Miller's practice will be for a period of one year commencing on December 1, 2004 ? through November 30, 2005 unless terminated earlier as herein provided or by other Order of this Court.
- Bar Counsel may request a hearing before this Court if he believes Miller has failed to comply with any of the conditions of this order for the Court to determine if any portion of the remaining "suspended suspension" from practice should be imposed upon Miller.
- For that same purpose, Bar Counsel may file an information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Miller and received by the Board after the date of this Order.
- By propositioning Bolduc for sexual relations while also providing legal representation and counseling to her on November 5, 2007, Pongratz failed to ?employ reasonable care and skill and apply the lawyer?s best judgment in the performance of professional services? in violation of Maine Bar Rule 3.6(a).5
- By effectively conditioning the return of Bolduc?s client file on Bolduc?s appearance in his office and her signing of a contract to pay legal fees and interest in his presence, Pongratz ?assert[ed] a lien on a client?s file in order to secure payment of a fee? in violation of Maine Bar Rule 3.7(c)(1).
Williams graduated from law school in 1998.
Williams was admitted to practice in Maine in April 1999.
Williams also sought admission to practice in Florida and gained employment with the District Attorneys Office in Leon County, Florida. In 1999, Williams failed the Florida bar exam, at which point his employment with the District Attorneys Office was terminated.
In early 2000, Williams set up a law practice as a sole practitioner in Lewiston. In his filings in support of reinstatement, Williams asserts that after a brief startup period, his practice became both visible and successful.
In 2001, Williams actions as a lawyer began generating complaints by clients to the Board of Overseers of the Bar. These complaints led to the initiation of proceedings in BAR-02-5.
The accumulating complaints raised issues of sufficient seriousness that the Board of Overseers filed a motion with this Court, pursuant to M. Bar R. 7.2(c), seeking immediate temporary suspension of Williams from the practice of law pending determination of the complaints. The Court (Rudman, J.) granted the motion and Williams was temporarily suspended from the practice of law effective April 16, 2002.
On May 1, 2003, the Court (Rudman, J.) entered a further order suspending Williams from the practice of law and ordering that his client files be delivered to bar counsel.
After completion of proceedings within the Board of Overseers, the Board had filed with the Court three informations involving a total of twenty-eight complaints of alleged ethical improprieties by Williams. The individual complaints frequently included reports within the complaints of several incidents of improper or neglectful actions or failures to act.
With appropriate notice to Williams, the Court scheduled a hearing on the informations for April 5 and 6, 2004. On the appointed date, bar counsel and many witnesses, including former clients of Williams, appeared for the hearing. Williams failed to appear.3 At hearing, the Board presented evidence through eighteen witnesses and a large volume of exhibits.
The record in BAR-02-5 includes evidence that:
- With this proof of numerous ethical violations, the Court found that Mr. Williams presents a danger to the public and ordered him disbarred, citing numerous bar rules, which the Court found, had been repeatedly violated. The disbarment order was signed April 7, 2004, disbarring Williams from the practice of law in the State of Maine. Bar Rule 7.3(j)(1) permits disbarred attorneys to petition for reinstatement at any time after five years from the date of the disbarment order.
- While Williams failed to appear for the hearing, his responses to the complaints against him demonstrated a pattern of blaming others including former clients, the Board of Overseers, and the courts for his ethical problems and of minimizing his own responsibility for his ethical violations. There were dozens of allegations in the informations filed with the Court addressing individual instances of failure to file documents or to act in a timely manner. To each of these separate allegations, Williams employed a standard response: It is true that a reply was not timely submitted, however, the Respondent contends that extenuating personal and legal reasons either excuse or justify this lapse. To this date, even in his materials in support of reinstatement, Williams has not explained what were the extenuating personal and legal reasons that he believed were sufficient to excuse or justify his ethical lapses.4
- Following the disbarment order, Williams took an appeal to the full Court, as was his right. Williams failed to file a brief in support of his appeal in a timely manner. Instead, he repeatedly sought and obtained extensions of the briefing schedule, which he repeatedly failed to meet. Finally, over a year later, after he failed to file a brief by a July 15, 2005, deadline, the Court (Saufley, C.J.) dismissed his appeal for want of prosecution by order dated July 20, 2005.5 At that point, the disbarment order became a final judgment.
- During the pendency of the bar disciplinary proceeding and the appeal, materials in the record of BAR-02-5 and in Williamss petition for reinstatement indicate that he relocated first to Massachusetts and then to Georgia. Correspondence in the file of BAR-09-13 indicates that Williams has recently moved back to Massachusetts.
- In June 2004, Williams applied for a teaching certificate in Georgia. As part of the application process, Williams was required to respond to a two-part question asking about any past professional discipline and any present investigations or actions relating to professional discipline. The question asked first, had he surrendered any professional certificate/credential/license/ permit or had one denied, revoked or suspended and second, is any investigation or action now pending against you with any regulatory agency, including the Professional Standards Commission? The exact wording of the question was as follows:
- In 2006, during the course of a dispute about the appropriate level of the teaching certificate for which Williams was qualified, the Georgia Professional Standards Commission, which certifies teachers, discovered that Williams had been disbarred in Maine and that, consequently, he had not responded truthfully to the professional misconduct question on the applications for a teaching certificate.
- The Georgia Professional Standards Commission then initiated a proceeding to have Williamss teaching certificate revoked. In April 2007, an administrative law judge found that Williamss concealment of his disbarment violated the Georgia Code of Ethics for Educators and ordered his teaching certificate revoked.
- Williams appealed the administrative law judges revocation order to the Georgia Superior Court. In his appeal, and in his arguments in support of reinstatement, Williams asserted that the professional misconduct question was unconstitutionally vague and that the reference to any regulatory agency, in the second part of the question justified his answering the entire question in the negative. In a position reminiscent of his opposition to some of the events that preceded his disbarment, Williams contended that the action to revoke his teaching certificate was motivated by bias against him arising from the dispute regarding the appropriate level of his teaching certification. Williams asserted that without that motivation and bias, no action would have been taken against him, and he would have been allowed to maintain his teaching certificate.
- The Georgia Superior Court rejected Williamss challenge to the decision by the administrative law judge, found that the administrative law judges findings were either established without dispute as to material fact or were supported by the record, and affirmed the decision by the administrative law judge.
- Williams appealed the Superior Courts judgment to the Georgia Court of Appeals and the Georgia Supreme Court, both of which denied his appeals without reaching the merits. Accordingly, the decision by the administrative law judge, affirmed by the Superior Court, is a final judgment. The Georgia Court action establishes that Williams teaching certificate was revoked as a result of his making an untruthful statement in his application for a teaching certificate and that the question posed, to which he responded in the negative, was not vague and should have been understood to include inquiry about past professional disciplinary actions taken by a court.
- Williams petition for reinstatement was filed on or about September 30, 2009. The petition was supported with an extensive personal statement that Williams reaffirmed at the Grievance Panel hearing. In his personal statement, Williams offered wide-ranging views on his personal history, his sense of selfimportance, the significance to his being an attorney admitted to practice in Maine, the reasons for his disbarment, his experiences in Georgia and the loss of his teaching certificate in that state, and his views of his capacity for change to avoid the problems that led to his disbarment.
- Among other things, Williams stated in 2009 that upon his admission to the bar in Maine, in his view: [t]he world opened to me and showed me the path that I was to take: an attorney in Maine, who had accepted the challenge of serving his people in a jurisdiction which was devoid of any legal civil rights architecture or sophistication: a state in need of a hero.
- There is nothing in the record to support Williams claim that in 2001 and 2002, before his suspension, he was providing representation or advice in many of the high visibility criminal or civil rights cases in the state, or that he regularly argued to packed courthouses. Assuming, for purposes of this opinion, that Williams believes the above statements to be true, they suggest that Williams views some problems that led to his disbarment as the product of his taking on too much work and too many high visibility cases that required his attention.
- Recounting his experiences during the disbarment proceedings, Williams 2009 personal statement contended: [m]y disbarment was as public as my practice was: splashy, sensational, and notorious. Headlines and broadcasts covered my disciplinary hearing before the Board via live feeds, web blogs, and chatrooms. The level of vitriol that permeated the Bench against me was quite tangible: many jurists actually congratulated Board members for the outcome. Williams brief in support of reinstatement, referencing the Grievance Panel hearing, states that [e]very single aspect of his personal statement was supported by the testimony and documentation which Mr. Williams offered to the Panel.
- Neither the record of Williams disbarment proceeding in BAR-02-5 nor the record of this reinstatement proceeding, including Williams testimony in which he could have backed up his claim with facts, contain any evidence to support Williams charge that bias against him permeated the Bench.8 Further, Williams suspension and disbarment proceedings were before the Court, and his disbarment was ordered by the Court, not the Board of Overseers of the Bar.
- The personal statement includes an extended discussion of Williams views of his experiences teaching school in Georgia and the proceedings that lead to the revocation of his teaching certificate. The statement is consistent with the justifications for his actions offered during the administrative and judicial proceedings in Georgia that led to the final judgment, a result that Williams clearly does not accept. However, this reinstatement proceeding in Maine is not a forum to collaterally attack a final judgment of the courts in the State of Georgia. The final judgments in Georgia are part of the history of this case relating to the propriety of Williams actions subsequent to his disbarment.
- The personal statement concludes with a listing of Williams views of the reasons why he should be reinstated. The justification section includes a brief generalized statement that Williams acknowledges the wrongfulness of his actions, but without any discussion at this point or at any other place in the record acknowledging any wrongdoing with reference to any of the specific client complaints, from forcing himself sexually upon a client, to failures to appear in court, to neglect of clients and their cases, to taking money from clients and then not performing services he agreed to perform, that led to his disbarment.
- During the Grievance Panel hearing, Williams Maine attorney asked him if he recognized the wrongfulness of his prior misconduct. Williams then testified as follows:
- Williams claim that other civil rights and minority cause champions, like him, have a very inflated sense of self and make many of the same mistakes that he made and that caused his disbarment has no support in the record or in reported bar disciplinary proceedings or opinions of this Court over the past thirty years. Williams was most definitely not just another civil rights advocate doing his job and getting disciplined for doing things many other civil rights advocates do. Williams may believe such statements to be true, but his statements reflect serious misunderstanding of the ethical violations he committed and minimization of the harm done to his clients and their causes.
- The hearing before the Grievance Panel involved the testimony of Williams and four witnesses, all of whom testified by telephone from Georgia as permitted by the Grievance Panel. The witnesses included one attorney and others who had known Williams as a teacher and in the community. All testified favorably to Williams, in examination by Williams retained attorney who appeared at the hearing in Maine, with brief questioning by bar counsel, and some questioning by some members of the Grievance Panel.9
- A letter submitted by Williamss Georgia attorney joined Williams criticism and attempts to collaterally attack the Georgia court proceedings. The Georgia attorneys letter observed that: [w]hile I believe Mr. Williams was legally right, I do not think at the end of the day that law had anything to do with all and any of the court rulings.
- After the hearing, the Grievance Panel concluded that Williams had failed to meet his burden of proof, to the clear and convincing evidence standard, to justify his readmission. The Panel found that: Mr. Williams appears to have retained some of his demonstrated arrogance and the inability to recognize that the ethical rules imposed on attorneys are not rules that can be sidestepped by a clever argument or rhetoric. The Panel further found that: Mr. Williams has not submitted evidence sufficient to give the Panel an abiding conviction that it is likely that his reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice or to the public interest. Accordingly, the Panel recommended that Williams petition for reinstatement be denied.
- The Grievance Panels recommendation was supported by the Board of Overseers of the Bar which, by a unanimous vote, recommended that Williams petition for reinstatement be denied.
- In his arguments to this Court, Williams asserts that (i) the Court must reinstate him because all of the testimony presented at hearing was by persons favorable to him; (ii) the credibility of that testimony must be accepted; (iii) he has otherwise complied with all of the prerequisites listed in the rules for reinstatement; (iv) the actions of the Georgia administrative agencies and courts leading to the revocation of his teaching certificate were motivated by bias against him and were wrong as to the facts and the law; and (v) he accepts the disbarment determination and stands ready to avoid repetition of the wrongful acts that led to his disbarment.
- Williams also criticizes the Grievance Panels use of the word arrogance in its finding that Williams retained an inability to recognize that the ethical rules imposed on attorneys are not rules that can be sidestepped by a clever argument or rhetoric. Williams asserts that use of the word arrogance by the Grievance Panel is indicative, not of any failing of Williams, but of cultural differences between himself and the Grievance Panel which, he suggests, lead some individuals to conclude that qualities of aggressiveness and success that are valued in some attorneys are viewed as arrogance when seen in other attorneys of different cultural backgrounds. The word arrogance was introduced into the proceedings, not by the Grievance Panel, but by Williams, who used it repeatedly in his personal statement and testimony to discuss his failings that led to his disbarment. Use of the word selected by Williams to describe a problem that led to his disbarment and to express concern that the problem continued is no indication of cultural insensitivity by the Grievance Panel, but an acceptance and utilization of Williamss own words to find that a problem in his past behavior that he identified is continuing.
Prior to serving the suspension, he shall comply with all of the requirements of M. Bar R. 7.3(i)(1);
He shall meet with the Director of the Maine Assistance Program (MAP) within thirty (30) days of the date of this Order to evaluate whether there are any mental or emotional disorders that caused or contributed to his inappropriate conduct in this matter. He shall follow all recommendations of the evaluation and, if requested by MAP?s director, shall enter into a contract for services to be administered and monitored through MAP;
He shall apologize in writing to the complainant by September 1, 2010, and provide a copy of the same to Bar Counsel;
Pursuant to M. Bar R. 7.2(b)(8), prior to his return to practice Attorney Pongratz shall pay the reasonable expenses of the Board in the amount of $975.21; and 5. He shall refrain from any misconduct in the future.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects; and
Effective retroactively to March 1, 2010, and pursuant to M. Bar R. 7.3(h)(3), Joseph A. Ritzo is suspended from the practice of law in Maine for six (6) months for his violations of the following Maine Rules of Professional Conduct: 1.15(a), 5.3(a)(b)(c), and 8.4(a)(b)(c).
Since 1969, Clayton N. Howard, Esquire, of Damariscotta, Maine has been an attorney duly admitted to the Maine Bar, actively practicing from an office in Damariscotta and subject to the Maine Bar Rules.
On February 2, 2009, Mr. Metzger (Metzger) filed a Grievance Complaint against Attorney Howard. In addition, Metzger?s sister, Barbara M. Hauter (Hauter) filed a Grievance Complaint dated February 6, 2009. Both the Metzger and Hauter complaints alleged violations of the Code of Professional Responsibility by Attorney Howard relative to his representation of Metzger, Metzger Restaurant Group, LLC (MRG), Ms. Hannah Sparrell and Hannah Sparrell, LLC.
On February 14, 2006, Attorney Howard formed Metzger Restaurant Group, LLC, with Metzger?s then-wife as the sole member. Attorney Howard was the Registered Agent for the corporation. Shortly after the parties? divorce in December of 2006, Attorney Howard, pursuant to the parties? Divorce Judgment, prepared documents that transferred MRG from Mrs. Metzger to Mr. Metzger. Attorney Howard remained as the corporation?s Registered Agent.
On May 22, 2007, Metzger?s directed Howard to transfer to Ms. Hannah Sparrell his entire interest in MRG in order to facilitate the application for a liquor license for the restaurant. As part of the transfer, Howard prepared a separate Escrow Agreement, also dated May 22, 2007, whereby Metzger would have the authority to reacquire the stock of MRG for $1,000.00. Attorney Howard?s firm was designated as the Escrow Agent.
Prior to the transfer, Ms. Sparrell had been working as a waitress and assistant to Mr. Metzger in his restaurant. At the time of the initial transfer to her of MRG, Ms. Sparrell was involved in a personal relationship with Metzger.
At various times from May 22, 2007 through September of 2008, Attorney Howard and other members of his firm had attorney-client relationships with Mr. Metzger, Ms. Sparrell, MRG and Hannah Sparrell, LLC. Hannah Sparrell considered Attorney Howard her attorney and the attorney for Hannah Sparrell, LLC from May 22, 2007 to September 2008.
On September 1, 2008, Mr. Metzger was charged with domestic assault; Ms. Sparrell was the alleged victim. On September 4, 2008, Attorney Howard filed Articles of Incorporation for Hannah Sparrell, LLC, which he had been directed to do by Ms. Sparrell in his office the previous day.
On or about September 5, 2008, Ms. Sparrell executed a Bill of Sale, prepared by Attorney Howard, transferring the assets of Metzger Restaurant Group, LLC to Hannah Sparrell, LLC. Mr. Metzger was unaware of this transfer at the time. Attorney Howard never sought his approval.
After Mr. Metzger contacted Attorney Howard, who was on vacation on September 11, 2008, Howard contacted his partner and came to the conclusion that there was a conflict which would require Howard and his firm to withdraw from the representation of Metzger, and of Sparrell.
The panel finds that Attorney Howard did not obtain informed (verbal or written) consent to engage in the simultaneous representation of Mr. Metzger, Hannah Sparrell or Hannah Sparrell, LLC. In addition, the Panel finds that Attorney Howard breached his fiduciary duty as the Escrow Agent for the MRG, LLC stock, while at the same time preparing a document that transferred all the assets of MRG to Hannah Sparrell, LLC, which impacted on the value of the stock that Howard held as Escrow Agent for his client. Although Howard believed he had obtained consent from Metzger and Sparrell, the Panel is not convinced by a preponderance of the evidence that consent was informed. Even assuming for the sake of argument that Howard did obtain informed consent as required by Me. Bar Rule 3.4(c) and (d) when the original transfer of MRG, LLC stock to Hannah Sparrell took place in May of 2007, Howard had an ongoing obligation to reevaluate whether his ongoing dealings and representation of Hannah Sparrell created a conflict, or whether he had a duty to a current or former client. The Panel is unpersuaded that this reevaluation took place.
Stephen M. Brett is suspended from the practice of law in Maine for three years, i.e. until July 10, 2013;
Before petitioning for reinstatement to practice under M. Bar R. 7.3(j), Mr. Brett shall arrange to meet with the Director of the Maine Assistance Program for Lawyers and Judges (MAP). Mr. Brett shall enter into a contractual relationship with MAP and comply with that contract to the satisfaction of and as directed by the Director of MAP;
Prior to seeking such reinstatement Mr. Brett shall, at his own expense, undergo forensic evaluation from a clinical psychologist. Mr. Brett shall follow all recommendations of that psychologist and remain in compliance with any resulting treatment by a licensed, qualified clinician. The psychologist?s report shall be distributed to the parties for inclusion and submission as part of any petition for reinstatement so filed by Mr. Brett;
Prior to filing any such petition for reinstatement, Mr. Brett shall obtain malpractice insurance coverage in a minimum amount of seven hundred and fifty thousand dollars ($750,000) from an insurance carrier licensed to do business in Maine;
Additionally, should Mr. Brett become reinstated and begin practicing law again in Maine, he shall submit his practice to monitoring by a Maine attorney approved and appointed by the Court;
In the event a grievance complaint is received by Bar Counsel concerning alleged misconduct by Mr. Brett, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as deemed appropriate by Bar Counsel. In the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b) without any proceeding before the Grievance Commission under M. Bar R. 7.1(e); and
Any apparent violation of any of the conditions of this Order shall be filed by Bar Counsel directly with the Court.
Prior to that representation of the Rodgersons, Respondent Rhoda was already committed to the representation of Michelle Bartlett, et aI., which representation involved the commencement of the common law cause of action of "Undue Influence" against Brenda and Russell Rodgerson;
Respondent Rhoda discovered and recognized the conflict of interest no later than July 9, 2003. Upon recognizing the conflict, Respondent only withdrew from representation of the Rodgersons; Respondent did not withdraw from representation of Michelle Bartlett, et al.;
On July 25, 2003, Respondent on behalf of Michelle Bartlett and her siblings commenced a law suit against the Rodgersons, which was filed in Superior Court, Aroostook County, and also filed an Ex Parte Motion for Attachment. This Motion for Attachment was supported by two (2) affidavits of Michelle Bartlett, which were both prepared by Respondent Attorney Rhoda and read to Ms. Bartlett prior to her execution;
The Motion for Ex Parte Attachment was granted in the amount of $50,000.00, and attachment was made upon the sale proceeds of the Rodgersons' Oakfield property;
By the date of July 25, 2003, Respondent Attorney Rhoda was aware that the Rodgersons' home was under contract for sale, with a closing date of July 25, 2003; although Respondent Rhoda was made aware of the sale of the Rodgerson property from a number of different sources, the particular closing date of July 25, was specific information that he obtained during his representation of Brenda and Russell Rodgerson and receipt of the Purchase and Sale Agreement.
After July 25, 2003, the litigation regarding the undue influence claim proceeded; there was no additional information received, during the ?simultaneous representation" that had any effect on the continued litigation or its outcome.
The Board of Overseers of the Bar's Petition for Reciprocal and/or Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Joseph A. Troiano is disbarred in Maine for his violations of those portions of Maine's Code of Professional Responsibility and/or Rules of Professional Conduct that are analogous to his violations in Florida's Rules of Professional Conduct as found in the Supreme Court of Florida's Order dated February 25, 2010.
- Compliance with terms of disciplinary orders;
- Whether he has engaged in the unauthorized practice of law;
- Whether he recognizes the wrongfulness and seriousness of his misconduct;
- Whether he has engaged in any other professional misconduct;
- Whether he has the requisite honesty and integrity to practice law; and
- Whether he has met continuing educational requirements.
That suspension shall be for six (6) months and one (1) day, such that should Watson decide to return to practice he must file a petition for reinstatement and be subject to M. Bar R. 7.3(j);
Prior to filing for reinstatement, Watson must first remove and comply with all deficiencies that caused the Board of Overseers of the Bar to administratively suspend him on October 20, 2009;
Watson shall return all of McAllister?s client files to her by on or before October 29, 2010; and
At any such reinstatement hearing, Watson shall be required to confirm to the appropriate tribunal and Bar Counsel all steps and processes he engaged in and utilized with the Maine Assistance Program (MAP) and/or such other counseling he employed to alleviate his depression that he had testified was involved in his conduct violations.
Andrew J. Doukas is a practicing Maine attorney who has been a member of the Maine bar for twenty-six years. He primarily practices in the domestic relations area but also handles probate, guardianship, and the occasional tort file.
William J. Sengel hired Andrew J. Doukas to represent him in a personal injury claim as a result of a car accident on January 21, 1999. Mr. Sengel contacted several attorneys who did not take his case and ultimately ended up with Mr. Doukas representing him. Mr. Doukas had represented Mr. Sengel in an earlier divorce matter and Mr. Sengel was very pleased with that representation. Mr. Sengel retained Mr. Doukas and signed a contingent fee agreement with him on June 1, 2000.
From June 1, 2000, through the expiration of a statute of limitations on June 21, 2005, Mr. Doukas did very little work on this file. He obtained limited medical records, no wage records, and very few other documents pertaining to Mr. Sengel?s injury. Mr. Sengel called Mr. Doukas on many occasions asking about the status of his file and explaining he was in severe financial distress. Mr. Doukas found this file complex as he had trouble obtaining medical records and had concerns about a prior injury suffered by Mr. Sengel. In addition, Mr. Doukas was concerned because Mr. Sengel had filed a chapter 13 bankruptcy during the relevant time period. Mr. Doukas decided the file had very little value after the liability insurance carrier rebuffed him.
Mr. Doukas did very little work regarding the items he found complex and although he responded to Mr. Sengel?s inquiries he continued to do very little work on the file. Mr. Doukas did not obtain medical payments for Mr. Sengel, which were available under Mr. Sengel?s personal insurance even though Mr. Doukas was receiving ?dunning? notices. This lack of attention resulted in the statute of limitations expiring without the claim being resolved. During his period of representation in this matter, Mr. Doukas did not properly put this file together in that he poorly documented the file. When he was rebuffed by the insurance liability carrier and asked for more information he decided not to provide it or was unable to figure how to obtain relevant information.
Mr. Doukas?s work on this file was grossly negligent and falls below the standard for a personal injury lawyer handling this type of matter. Mr. Doukas reluctantly accepted this matter as he thought he was doing Mr. Sengel a favor when he should have declined representation or referred this matter to another attorney. After the statute of limitations expired Mr. Sengel called for an update and Mr. Doukas explained to him that the statute had expired.
After the statute of limitations expired and Mr. Sengel complained to Mr. Doukas about this event and his grave financial difficulty as a result of the accident, Mr. Doukas and Mr. Sengel entered into a settlement agreement whereby Mr. Doukas ?loaned? Mr. Sengel $5000 for use on an interest-free basis and forgave payment for other legal matters. Mr. Doukas prepared a release and note without advising Mr. Sengel to obtain a review of this settlement by independent counsel.
After borrowing the $5000 from Mr. Doukas, Mr. Sengel obtained subsequent representation from Lee Anne Graybeal, Esq. of Kennebunk, Maine. Ms. Graybeal contacted Mr. Doukas regarding this matter and obtaining additional funds for Mr. Sengel as a result of Mr. Doukas?s missing the statute of limitations. Mr. Doukas requested a personal meeting with Mr. Sengel and Ms. Graybeal to resolve this matter and explain his position regarding an additional settlement.
Mr. Sengel ultimately obtained representation from Steven D. Silin, Esq. of Lewiston, Maine who filed this grievance against Mr. Doukas with the Board of Overseers of the Bar and also filed a malpractice action against Mr. Doukas.
Mr. Doukas shall be suspended from the practice of law for thirty (30) days.
The suspension referenced above shall be suspended as long as Mr. Doukas takes the following action:
Andrew J. Doukas is a practicing Maine attorney who has been a member of the Maine bar for twenty-six years. He primarily practices in the domestic relations area but also handles probate, guardianship, and the occasional tort file.
William J. Sengel hired Andrew J. Doukas to represent him in a personal injury claim as a result of a car accident on January 21, 1999. Mr. Sengel contacted several attorneys who did not take his case and ultimately ended up with Mr. Doukas representing him. Mr. Doukas had represented Mr. Sengel in an earlier divorce matter and Mr. Sengel was very pleased with that representation. Mr. Sengel retained Mr. Doukas and signed a contingent fee agreement with him on June 1, 2000.
From June 1, 2000, through the expiration of a statute of limitations on June 21, 2005, Mr. Doukas did very little work on this file. He obtained limited medical records, no wage records, and very few other documents pertaining to Mr. Sengel?s injury. Mr. Sengel called Mr. Doukas on many occasions asking about the status of his file and explaining he was in severe financial distress. Mr. Doukas found this file complex as he had trouble obtaining medical records and had concerns about a prior injury suffered by Mr. Sengel. In addition, Mr. Doukas was concerned because Mr. Sengel had filed a chapter 13 bankruptcy during the relevant time period. Mr. Doukas decided the file had very little value after the liability insurance carrier rebuffed him.
Mr. Doukas did very little work regarding the items he found complex and although he responded to Mr. Sengel?s inquiries he continued to do very little work on the file. Mr. Doukas did not obtain medical payments for Mr. Sengel, which were available under Mr. Sengel?s personal insurance even though Mr. Doukas was receiving ?dunning? notices. This lack of attention resulted in the statute of limitations expiring without the claim being resolved. During his period of representation in this matter, Mr. Doukas did not properly put this file together in that he poorly documented the file. When he was rebuffed by the insurance liability carrier and asked for more information he decided not to provide it or was unable to figure how to obtain relevant information.
Mr. Doukas?s work on this file was grossly negligent and falls below the standard for a personal injury lawyer handling this type of matter. Mr. Doukas reluctantly accepted this matter as he thought he was doing Mr. Sengel a favor when he should have declined representation or referred this matter to another attorney. After the statute of limitations expired Mr. Sengel called for an update and Mr. Doukas explained to him that the statute had expired.
After the statute of limitations expired and Mr. Sengel complained to Mr. Doukas about this event and his grave financial difficulty as a result of the accident, Mr. Doukas and Mr. Sengel entered into a settlement agreement whereby Mr. Doukas ?loaned? Mr. Sengel $5000 for use on an interest-free basis and forgave payment for other legal matters. Mr. Doukas prepared a release and note without advising Mr. Sengel to obtain a review of this settlement by independent counsel.
After borrowing the $5000 from Mr. Doukas, Mr. Sengel obtained subsequent representation from Lee Anne Graybeal, Esq. of Kennebunk, Maine. Ms. Graybeal contacted Mr. Doukas regarding this matter and obtaining additional funds for Mr. Sengel as a result of Mr. Doukas?s missing the statute of limitations. Mr. Doukas requested a personal meeting with Mr. Sengel and Ms. Graybeal to resolve this matter and explain his position regarding an additional settlement.
Mr. Sengel ultimately obtained representation from Steven D. Silin, Esq. of Lewiston, Maine who filed this grievance against Mr. Doukas with the Board of Overseers of the Bar and also filed a malpractice action against Mr. Doukas.
Mr. Doukas shall be suspended from the practice of law from January 1, 2011 through January 31, 2011.
The suspension referenced above shall be suspended as long as Mr. Doukas takes the following action:
Bar Rule 3.1(a) stating that any violation of any other provision of the Code of Professional Responsibility shall be deemed to constitute conduct ?unworthy of an attorney? for purposes of 4 M.R.S. ? 851 (2010).
Bar Rule 3.2(e)(1) requiring that a lawyer knowing of a violation of the Maine Bar Rules ?that raises a substantial question as to another lawyer?s honesty, trustworthiness, or fitness as a lawyer shall report such knowledge to the Board or other appropriate disciplinary authority.?
Bar Rule 3.2(f)(2), (3), and (4) requiring that a lawyer not engage in ?illegal conduct? ?that adversely reflects on the lawyer?s honesty, trustworthiness, or fitness as a lawyer?; or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or engage in conduct ?prejudicial to the administration of justice.?
Bar Rule 3.13(a)(1), (2), and (3) requiring: (1) partners in a law firm to make ?reasonable efforts? to assure that the firm has in effect measures giving ?reasonable assurance? that all lawyers in the firm conform to the Code of Professional Responsibility; (2) that lawyers having ?direct supervisory authority? over other lawyers shall ?make reasonable efforts? to insure that the other lawyers conform to the Code of Professional Responsibility; and (3) that a lawyer shall be responsible for another lawyer?s violation of the Code of Professional Responsibility if the lawyer orders, or with knowledge of specific conduct ratifies, the conduct involved, or the lawyer knows of conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable, remedial action.
- Based on the facts as they knew or believed them to be at the time, Warren, Kilbreth, and the executive committee acted reasonably in concluding that Duncan?s transactions in the Thomas account were an isolated, aberrational event; that no other accounts were or would be affected; that retaining checks that Duncan had authority to write and not paying them over to the firm was a violation of the partnership agreement, but was not theft; and that the firm had been made whole for the funds it was due for legal services rendered. As paragraph 19 of the Preamble to the Maine Rules of Professional Conduct notes:
- Further investigation revealed that Duncan?s actions were theft from clients and from the firm. When recognized as theft in October and November 2007, Duncan?s actions should have been and were promptly reported to the Board. Before that time, the respondents reasonably believed that Duncan?s actions were not theft because he was authorized to write and retain the checks at least for some period of time, and the remedy to recover the proceeds of the checks would be a civil complaint not a criminal charge. See State v. Nelson, 1998 ME 183, ?? 6-8, 714 A.2d 832, 833-34. No civil action was necessary in this case because, when confronted, Duncan promptly paid over the funds then believed to have been retained in violation of the partnership agreement.
- The Board contends that the respondents were required to make ?an immediate report to the Board of Overseers? in late June or early July when they first learned of Duncan?s actions. Such an ?immediate report? on first notice, without more consideration and development of information to support a belief that a significant ethical violation had occurred, could have created a risk of an employment action that the firm would have had to defend. See Kamaka v. Goodsill, Anderson, Quinn & Stifel, No. 26308, 2008 Haw. LEXIS 33 (Haw. Feb. 14, 2008) (stating that law firm successfully defended, through jury trial and appeal, terminated attorney?s claims for discrimination and tortious interference with expectancy referencing careful investigation and documentation of billing and paperwork improprieties).
- With Duncan?s thirty-year record of exemplary service to the firm and the community, and his, until then, impeccable record for ethics and honesty, the respondents were not unreasonable in their decision to decline to accept Duncan?s proffered resignation and to allow him to remain with the firm based on what the respondents knew or believed at the time. While Duncan could have been expelled from the firm at the time, Maine practice and rules of ethics, then or now, did not require expulsion from a firm upon discovery of misapplication of funds in a single account, after an otherwise exemplary thirty-year record of professional accomplishment and, it appeared, ethical propriety.
- Some delay in addressing further investigation and remedial action with Duncan was appropriate based on Duncan?s then-perceived precarious emotional and health status and the good faith belief by Rommel, Warren, and Kilbreth that pursuit of such matters with Duncan could push him ?over the edge? to suicide. The respondents did not take lightly their concern about a possible suicide, and the delay in further address of this matter until that concern was reduced, was humane, and was not an ethical violation. Notably, during the period from Warren?s confrontation with Duncan on June 28, 2007, to the direction to Klebe to investigate further on October 2, 2007, there was no further misapplication of client funds or firm funds.
The Board has failed to prove, by a preponderance of the evidence, any violation Bar Rule 3.1(a). For the reasons stated above, no violation of the Code of Professional Responsibility is proved and no other act is proved that the Court finds to constitute conduct ?unworthy of an attorney? pursuant to 4 M.R.S. ? 851.
The Board has failed to prove, by a preponderance of the evidence, any violation of Bar Rule 3.2(e)(1). Based on what the respondents knew or believed at the time, on facts now known to be incomplete, the respondents did not believe that the perceived-to-be aberrational misapplication of firm funds from one account required a report to the Board or the prosecutor as an action that, in light of Duncan?s thirty-year history, raised ?a substantial question as to another lawyer?s honesty, trustworthiness, or fitness as a lawyer.? The Court also notes that ultimately, Duncan?s actions were reported to the Board and the prosecutor. The only real issue is whether, in light of all the circumstances discussed above, the Board has proved that the four-month delay from discovery to first report was unreasonable. The delay is not proved to be unreasonable on the facts of this case.
The Board has failed to prove, by a preponderance of the evidence, any violations of Bar Rule 3.2(f)(2), (3), and (4) requiring that a lawyer not engage in ?illegal conduct? ?that adversely reflects on the lawyer?s honesty, trustworthiness, or fitness as a lawyer;? or engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or engage in conduct ?prejudicial to the administration of justice.? Certainly Duncan violated all of these Rules and many more, but no rule of guilt by association applies. See Matter of Phillips, No. SB-10-0036-D, 2010 Ariz. LEXIS 52, at *13-14 (Ariz. Dec. 16, 2010) (stating that the ?rules imposing managerial and supervisory obligations . . . do not provide for vicarious liability for a subordinate?s acts; rather they ?mandate an independent duty of supervision?? and holding that attorney head of large firm violated ethical rules when he had obligation of direct supervision of subordinate attorneys and non-lawyer staff and failed to provide the required supervision).
- The Board has failed to prove, by a preponderance of the evidence, any violations of Bar Rule 3.13(a)(1), (2), and (3). The identified paragraphs of Rule 3.13(a) require partners in a law firm to make ?reasonable efforts? to ensure that the firm has in effect measures giving ?reasonable assurance? that all lawyers in the firm conform to the Code of Professional Responsibility and requiring that lawyers having ?direct supervisory authority? over other lawyers shall ?make reasonable efforts? to ensure that the other lawyers conform to the Code of Professional Responsibility. Among experienced lawyers in a firm, informal supervision and periodic review is sufficient to meet these ethical standards. See Attorney Grievance Comm?n of Md. v. Kimmel, 955 A.2d 269, 285-86 (Md. 2008) (contrasting limited obligation to supervise experienced attorneys with substantial obligation to supervise inexperienced attorney in separate office of large firm).
During much of the initial time relevant hereto, Defendant Brian Aromando (Aromando) of Ogunquit, County of York, State of Maine was an attorney duly admitted to and engaging in the authorized and then unauthorized practice of law in the State of Maine. In any event, at all times he was subject to the Maine Bar Rules and/or the Maine Rules of Professional Conduct.
Aromando was admitted to the Maine bar in 2005, but became administratively suspended by the Board on October 20, 2009. That suspension occurred due to Aromando?s failure to comply with his annual registration, fee payment and continuing legal education (CLE) requirements under the Maine Bar Rules.
While licensed, Aromando maintained a solo practice in Ogunquit, Maine.
On September 4, 2009, James Moe (Moe) filed a grievance complaint against (then) attorney Aromando. The basis for Moe?s complaint concerned Aromando?s neglect of Moe?s legal matter, lack of communication and his failure to return Moe?s file or any of his unearned $1,500.00 legal fee. Aromando never responded to that complaint as requested and directed by Bar Counsel?s docketing and notification letter of September 10, 2009. His conduct violated then applicable M. Bar R. 2(c), 3.2(f)(1) and M. R. Prof. Conduct 8.1(b). After initially failing to comply with the Fee Arbitration Commission?s November 20, 2009 Award decision ordering that refund, on March 5, 2010 Aromando returned the $1500.00 fee to Moe.
On December 2, 2009, Carol Lovejoy (Lovejoy), the York County Register of Probate, filed a grievance complaint against Aromando. Lovejoy?s complaint alleged that Aromando had failed to make payments owed to that court concerning two cases in late 2008 and early 2009. The Probate Court had to subsequently bill Aromando for his failure to pay those fees. The court then tried repeatedly to contact Aromando with no success. Ultimately, the court has never received any payment or response from Aromando, and the current outstanding balances now total $848.00 and will continue to increase due to Register Lovejoy?s addition of monthly finance charges on the unpaid balance.
Aromando never responded to Lovejoy?s grievance complaint, despite the opportunity to do so. His conduct was in violation of then applicable M. Bar R. 2(c), 3.2(f)(1) and M. R. Prof. Conduct 8.1(b).
On February 8, 2010, Judge David Kennedy filed a grievance complaint concerning Aromando?s failure to monitor a family law client?s court case, to respond to discovery requests and/or to pay a $1000.00 court-ordered fine related to those failures. Aromando failed to ever respond to Bar Counsel?s request regarding Judge Kennedy?s complaint, despite the opportunity to do so. Moreover, Aromando was required to do so pursuant to Maine Bar Rules 2(c) and 3.2(f)(1), and Maine Rules of Professional Conduct 8.1(b).
Since that time, however, counsel have agreed that Aromando will pay outstanding fees owed to the Guardian ad litem (GAL), Felicity Meyers, in the amount of $2,400.00. That restitution shall be paid in accordance with the District Court?s related orders concerning the GAL?s fees.
On February 12, 2010, Bar Counsel opened a sua sponte complaint against Aromando concerning his failure to comply with Maine Bar Rule 7.3(i)(2). Specifically, Aromando failed to ever file the required notification affidavit following his October 20, 2009 administrative suspension. In that regard, Aromando failed to comply with the mandates of Maine Bar Rule 7.3(i)(2). Although required to do so, he did not file an affidavit with the Board or the Court reporting notification of his suspension to all clients, courts and counsel.
Aromando also never filed an answer or any response to Bar Counsel concerning that sua sponte complaint. His actions and failure to respond to Bar Counsel constitute violations of M. Bar R. 2(c), 3.2(f)(1), 7.3(i)(2) and M. R. Prof. Conduct 8.1(b), respectively.
The Board of Overseers agrees that after obtaining counsel to represent him concerning these many grievance matters, Aromando?s notification requirements under M. Bar R. 7.3(i)(2) were then addressed and accomplished by proper letters and notices issued on or about May 5, 2010 and so certified by Aromando?s Affidavit of May 7, 2010.
As a result of all of the above matters, the Board sought the temporary suspension of Aromando?s license to practice law in Maine under M. Bar R. 7.2(c).
On March 23, 2010 this Court issued an Order immediately suspending Aromando from the practice of law in Maine.
Thereafter, Aromando retained counsel who agreed that all current and further grievance complaint matters could proceed directly to Court. The parties then executed a Stipulated Waiver of further Grievance Commission action. That Waiver was approved by the Court?s Order dated April 27, 2010.
On April 19, 2010, Kyle Bjornlund, Esq. filed a complaint concerning Aromando?s conduct in the York County Superior Court matter of Bogue v. Lafond Renovations, LLC, Mark Lafond, and George Lafond. Bjornlund?s complaint concerned Aromando?s continued appearance as an attorney dealing with clients, courts and opposing counsel, despite and after having been so suspended from practice on October 20, 2009. With his complaint, Bjornlund included interrogatories and letters signed by Aromando. Those documents confirmed that Aromando continued to improperly appear in the Lafond litigation as a duly registered and licensed active Maine attorney during a time period ? December 23, 2009 through April 3, 2010 ? when he was in fact suspended from practice in Maine.
Despite Aromando?s suspension from practice, he still participated in a March 12, 2010 discovery conference before York County Superior Court Justice Paul Fritzsche.
During that conference with the court, Aromando failed to disclose his suspension to the court or to opposing counsel, Bjornlund. In fact, at the time of the April 2010 complaint, Aromando continued to represent and claim that he was the defendants? counsel in that civil litigation.
In fact, notwithstanding being temporarily suspended by the Court?s Order of March 23, 2010, Aromando admits he still sent correspondence and documents on the defendants? behalf to Bjornlund dated April 3, 2010, therein stating and representing himself to be an ?Attorney at Law.?
Aromando admits that he did not properly disclose his temporary disciplinary suspension to Bjornlund or to the court and that his conduct violated M. R. Prof. Conduct 5.5(a) and 8.4(a)(b)(c)(d).
Aromando belatedly moved to withdraw from representation of the LaFond defendants in that matter, causing that withdrawal to be ordered by the court effective April 22, 2010. His conduct violated M. R. Prof. Conduct 1.16(a)(1),(d).
On June 21, 2010, Theresa Holzworth filed a complaint against Aromando relating to the probate of the estate of her late brother, Joseph Maida. Holzworth resides in Idaho and had hired Aromando to assist her in performing her duties as Executrix of her brother?s Will. Aromando?s actions spanned the time period from October 2008 to June 2009. The tendered fee from Holzworth to Aromando included a $1,500 retainer.
Aromando agrees that he did not regularly communicate with Holzworth about that matter, failed to respond to her repeated attempts to contact him, and has not yet returned the unearned portion of her tendered legal fee, agreed by counsel to be $1,200.00. Although in January 2009 he filed an Application for Informal Probate of Will and Appointment of Personal Representative on behalf of Holzworth, he failed to follow up and properly provide Holzworth with status information concerning that probate matter. Dissatisfied that Aromando did not accomplish what she had hired and paid him to do, in June 2010 Holzworth terminated his employment. As a result, Holzworth is presently handling and completing the probate of the Joseph Maida Estate from her residence in Idaho without an attorney.
Near the end of that representation, Holzworth gave Aromando the title to her deceased brother?s vehicle so that he could assist with its registration in Maine. As the named Executrix, it was Holzworth?s responsibility to properly manage the estate?s assets. She had requested that Aromando ensure the vehicle?s new registration in Maine, but Aromando failed to accomplish that task. Holzworth eventually came to Maine and registered the vehicle herself with Maine?s Bureau of Motor Vehicles.
Throughout the motor vehicle registration process, Aromando was not responsive to Holzworth?s many attempts to contact him at his cellular phone number that he had provided to her.
Aromando agrees that he failed to consistently attend to her legal matter and perform his work in a diligent manner.
Accordingly, Aromando?s failure to more timely attend to Holzworth?s legal matters and regularly communicate with her resulted in Aromando?s violations of M. Bar R. 3.1(a); 3.2(f)(1)(3)(4); 3.6(a)(2)(3) and M. R. Prof. Conduct 1.1; 1.3; 1.4; 1.5(a)(b); 8.4(a)(c)(d).
Aromando agrees that he has suffered from a dual diagnosis with related mental health issues depression and substance abuse for many years and that those deficiencies were significant factors contributing to his professional misconduct. He is currently involved with a psychiatrist?s treatment and medication regimen as well as the Maine Assistance Program for Lawyers and Judges (MAP) to address his performance deficits and symptoms.
As a result of Aromando?s misconduct within all six (6) complaints involved in this Order, he agrees and the Court so finds that he engaged in conduct unworthy of an attorney, including repeated and serious violations of at least then applicable Maine Bar Rules 2(c); 3.1(a); 3.2(f)(1)(3)(4); 3.3(a); 3.6(a)(2)(3); 7.3(i)(2) and Maine Rules of Professional Conduct: 1.1: 1.3; 1.4; 1.5(a)(b); 1.15(2)(iv); 1.16(a)(1),(d); 5.5(a); 7.1; 7.5(a); 8.1(b); 8.4(a)(b)(c)(d).
It is hereby ORDERED that Brian Aromando is now disciplinarily suspended from the practice of law in Maine for a definite term of two (2) years from this date with notice of that suspension to be given by the Board pursuant to the Maine Bar Rules.
Consistent with the terms of this judgment and the findings and conclusions previously entered, Aromando may not file a petition for reinstatement pursuant to M. Bar R. 7.3(j)(1) until after the expiration of two (2) years from the date of this judgment.
Within 30 days of this Order, Aromando shall arrange to meet with the Director of MAP and within the next 30 days provide written confirmation that he has entered into a contractual relationship with MAP and utilized its services consistent with the Director?s recommendations and directives. Aromando shall remain in a contractual relationship with MAP and comply with that contract to the satisfaction of and as directed by the Director of MAP.
Prior to seeking reinstatement Aromando shall, at his own expense, undergo a psychological evaluation from an independent, non-treating clinical psychologist or psychiatrist licensed to administer psychological and psychometric testing. Aromando shall follow all recommendations of the clinical psychologist or psychiatrist and remain in compliance with any resulting treatment and patient recommendations from a licensed, experienced clinician. The psychologist?s and clinician?s reports shall be distributed to the parties for inclusion and submission as part of any petition for reinstatement so filed by Aromando;
Prior to filing any such petition for reinstatement, Aromando shall obtain and confirm to the satisfaction of Bar Counsel actual malpractice insurance coverage in a minimum amount of $750,000 from an insurance carrier licensed to do business in Maine.
Within two (2) years of the date of this
disbarmentsuspension, Aromando shall completely pay all outstanding balances or fees owed by him concerning the matters discussed in ? 5, ? 8 and ? 22 of the above findings at pp. 3 and 7 herein.Prior to filing a petition for reinstatement, Aromando will satisfy and complete all then outstanding and applicable requirements of M. Bar R. 10(c), 12(d) and 7.3(j)(5)(F).
Should Aromando become reinstated to practice in Maine, he shall submit his practice to monitoring by a Maine attorney agreed to by Bar Counsel, and then approved and so appointed by the Court.
In the event a grievance complaint is received by Bar Counsel concerning misconduct allegedly committed at any time by Aromando, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as deemed appropriate by Bar Counsel. In the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed by Bar Counsel directly before the Court under Bar Rule 7.2(b) without any proceeding before the Grievance Commission under M. Bar R. 7.1(e).
Any apparent violation of any of the conditions of this Order shall be filed by Bar Counsel directly with the Court.
The Board of Overseers of the Bar?s Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Wayne R. Murphy is suspended for his violations of those portions of Maine?s Code of Professional Responsibility that are analogous to those violations of Massachusetts? Rules of Professional Conduct by him as found in Massachusetts? Order of Term Suspension.
Mr. Murphy?s suspension will terminate on or about November 21, 2011.
Within thirty (30) days of the entry of this order, Mr. Murphy shall file with the Clerk and with the Board of Overseers an affidavit attesting to his compliance with the provisions of Maine Bar Rule 7.3(i)(1)(c).
The Court appoints Leonard I. Sharon, Esq. as Monitor for Mr. L'Hommedieu for a period of one year commencing January 1, 2002, unless terminated earlier as herein provided or by other order of this Court;
During the period of supervision, Mr. Sharon shall receive monthly written reports from Mr. L'Hommedieu concerning the current status of matters in which he has been retained to act as counsel;
Mr. Sharon is a volunteer who shall receive no compensation and who shall be expected to incur no expense;
Mr. L'Hommedieu will meet with Mr. Sharon within twenty-five (25) days of the date of this Order and thereafter at the call and convenience of Mr. Sharon on a monthly basis, unless Mr. Sharon should determine more frequent meetings are appropriate;
Mr. Sharon shall have the right to withdraw and terminate his service at any time for any reason he deems sufficient, including for reasons set forth in Paragraph 6 below. In the event of a withdrawal, he shall notify the Court and Bar Counsel, and Mr. L'Hommedieu shall then cooperate to obtain the services of an alternate Monitor to complete the remainder of the original Monitor's term;
If any aspect of the monitoring procedure creates a situation which is, or might be interpreted to be a conflict of interest under the Maine Bar Rules (for example, if Mr. L'Hommedieu is or becomes opposing counsel concerning a matter involving Mr. Sharon), then Mr. Sharon may adopt anyone of the following courses with the proposed result:
a. Mr. Sharon shall cease to act as such and a potential conflict is avoided; b. Mr. Sharon shall continue as Monitor but totally exclude Mr. L'Hommedieu's client and matter in question from the monitoring process, so that no conflict is deemed to exist; c. Mr. Sharon shall continue as Monitor, and obligate his firm to withdraw from the conflicting matter; or d. Mr. Sharon shall continue as Monitor, and obligate Mr. L'Hommedieu not to participate in the matter and to obtain new counsel for his client(s).
If in Mr. Sharon's judgment it is appropriate, he shall have the right to contact clerks of court, judges, or opposing counsel to determine the accuracy of Mr. L'Hommedieu's reports to him.
Mr. Sharon shall have no contact with any of Mr. L'Hommedieu's clients and his only contact in the performance of his duties shall be with Mr. L'Hommedieu or other persons contemplated by this Order. Mr. Sharon's participation in the monitoring of Mr. L'Hommedieu's practice shall be deemed not to create an attorney-client relationship between Mr. Sharon and Mr. L'Hommedieu or between Mr. Sharon and Mr. L'Hommedieu's clients;
Mr. Sharon shall file a confidential report with the Court on or before February 1, 2002, and quarterly thereafter or sooner if Mr. Sharon deems it necessary, with copies to Mr. L'Hommedieu and Bar Counsel concerning any professional assistance Mr. Sharon has provided to Mr. L'Hommedieu;
Mr. L'Hommedieu is currently serving as a Guardian ad Litem in five (5) matters in the Lewiston District Court. He may continue to act as the Guardian ad Litem just in those five (5) matters during his period of suspension, but shall not provide any legal advice therein during the 60-day period of actual suspension.
Mr. Sharon will have the duty to report to Bar Counsel and to the Court any apparent or actual professional misconduct by Mr. L'Hommedieu of which Mr. Sharon becomes aware or lack of cooperation by Mr. L'Hommedieu the performance of this Order.
In the event a grievance complaint is received by Bar Counsel concerning alleged conduct occurring on this date or thereafter, such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1 (d) (5), the matter shall then be filed directly before the Court under Bar Rule 7.2(b); and
Any apparent violation of the conditions of this Order shall be filed by Bar Counsel with the Court.
On or before August 29, 2011 Dawson shall confirm with appropriate authentication to Bar Counsel that the Keswick IRA assets of $25,000.00 have been obtained by him and properly provided to or established for the ultimate benefit of Ms. Rondina;
On or before July 8, 2011, Dawson shall remit the $1,060.03 remaining balance of Schleicher?s owed attorney fees to Attorney Donald Briggs;
By no later than July 29, 2011 Dawson shall properly authorize the Director of the Maine Assistance Program for Lawyers (MAP) to provide written confirmation to Bar Counsel that Dawson has executed a treatment contract with MAP, is acting in compliance with that contract and to provide written confirmation to Bar Counsel every six (6) months of the current status of that treatment; and
By no later than August 31, 2011, Dawson shall properly confirm with the Board of Overseers of the Bar?s CLE Coordinator his completion and removal of his current outstanding balance of 8.5 continuing legal education credit hours still due for 2010, with at least three (3) of those remaining credit hours being satisfied by courses or presentations primarily focused on law practice management areas and issues.
The appropriate disposition of GCF No. 10-328 is a Public Reprimand to William L. Dawson, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4);
The appropriate disposition of GCF No. 10-423 is a Public Reprimand to William L. Dawson, Esq. which is now herby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4); and
The appropriate disposition of GCF No. 11-057 is a Public Reprimand to William L. Dawson, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
secure the professional riles, client property and client data of Attorney Kahl
obtain access to Attorney Kahl's post office boxes to secure any law office or legal mail
inventory the open and closed client files
give priority attention to client matters which are open and time sensitive
notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property
Attorney McDaniel shall also prudently access and utilize Attorney Kahl's operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate
The Petition for Reciprocal Discipline is granted pursuant to M. Bar R. 7.3(h), which permits the Court to enter an order imposing discipline in Maine when the discipline imposed in another jurisdiction warrants reciprocity;
Effective immediately, Christopher M. Uhl is temporarily suspended from the practice of law in the state of Maine;
Within thirty days of the entry of this Order, Uhl shall file with the Clerk and with the Board of Overseers an affidavit attesting to his compliance with the provisions ofM. Bar R. 7.3(i)(I)(C); and
Uhl's suspension will continue, pending further order of this Court.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Mary Notaris is disbarred for her violations of those portions of Maine's Rules of Professional Conduct that are analogous to her violations of New Hampshire's Rules of Professional Conduct as found in the Supreme Court of New Hampshire's November 10, 2010 Order.
Ms. Nota.ris is also Publicly Reprimanded for her violation of M. Bar R. 7.3 i (2)(a)(b).
Pursuant to M. Bar R. 7.3(j)(1), Ms. Notaris must wait until three (3) years from the effective date of this disbarment to seek reinstatement; and
Prior to her reinstatement in Maine, Ms. Notaris must comply with the provisions outlined in M. Bar R. 7.4(j).
secure the professional files, client property, client funds and data of Attorney Hunt;
obtain access to Attorney Hunt's post office box to secure any law office or legal mail;
inventory the open and closed client files;
give priority attention to client matters which are open and time sensitive;
notify clients or former clients that the law practice is under Receivership and provide opportunity for clients to retrieve their property;
if necessary, Attorney Klebe shall locate appropriate successor counsel and provide services as are required to manage Attorney Hunt's practice; and,
Attorney Klebe shall also prudently access and utilize the operating and/ or IOLTA accounts to manage and if necessary, audit the law office. That review may include the temporary retention of office staff or other personnel as necessary and appropriate.
The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M.BarR.7.3(h)(3), Robert B. Pomeroy is disbarred. That disbarment is the result of Pomeroy's violations of those portions of Maine's Code of Professional Responsibility that were then applicable and are analogous to his violations of Massachusetts' Rules of Professional Conduct as found in the March 25, 2011 Supreme Judicial Court's Order.
secure the professional files, client property, client funds and data of Attorney Turner
obtain access to Attorney Turner?s post office or mail box to secure any law office or legal mail
inventory the open and closed client files
give priority attention to client matters which are open and time sensitive
notify clients and or former clients that the law practice is under Receivership and provide opportunity for clients to retrieve their property
If necessary, Attorney Ainsworth shall locate appropriate successor counsel and provide services as are required to manage or wind down Attorney Turner?s practice
Attorney Ainsworth shall also prudently access and utilize the operating and/or IOLTA accounts to wind down and if necessary, audit the law office. That review may include the temporary retention of office staff or other personnel as necessary and appropriate
- Timeliness of the appeal
- Order granting the motion to quash
- Obligation to Report Duncan to the Board of Overseers of the Bar
- Responsibility for Ensuring Compliance with the Maine Bar Rules
Attorney Harding shall serve his suspension from December 22, 2011 until January 21, 2012; on or before December 22, he shall provide notice to his clients of the suspension, consistent with M. Bar R. 7.3(i)(1).
During that period of actual suspension, Attorney Harding may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients. In short, he may not practice law or appear as though he is practicing law in any manner. Consistent with the Court?s findings above, Attorney Harding?s office may only be open for reduced hours. During that time, one staff person is permitted to deal with the administrative functions of the office, including returning client files, paying bills, etc. Attorney Harding shall not be present in the office for any of that time and his ?suspension notification? letter to clients shall inform them of that fact.
Effective January 22, 2012, Attorney Harding shall submit his practice to monitoring for one year or longer if the Court or Monitor deems it necessary. The Court-Appointed Monitor is Attorney Winfred Stevens of Bangor, ME;
If Attorney Harding commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose the suspended portion of this sanction;
Additionally, Attorney Harding shall undertake six (6) hours of approved live continuing legal education focused on law practice management;
Attorney Harding shall remain current in all filings and payment of all taxes (excepting real estate taxes) due to the United States and the State of Maine;
Attorney Harding shall reimburse the Board $500.00 toward costs associated with its prosecution of him in this matter; and
Attorney Harding shall comply with the provisions of M. Bar R. 7.3(i)(1).
In the event a grievance complaint is received by Bar Counsel after December 1, 2011, Bar Counsel may elect to file a new disciplinary matter directly before the Court under Bar Rule 7.2(b) without involving the Grievance Commission under M. Bar R. 7.1(d)(e).
- Christiane Gilbert Complaint
- The Clarence Hardwick Complaint
- The Sharon Closson, Laurie Ward, and Jessica Meyer Complaints
- Conclusion
- Mr. McAleer shall remain current in all filing obligations and payment of all taxes owed by him to the United States Internal Revenue Service and the State of Maine Revenue Service.
- If he intends to return to the practice of law in Maine, Mr. McAleer shall remain in treatment for his disability until released by his physician. Prior to seeking reinstatement, Mr. McAleer must provide the Court and Bar Counsel with a copy of his treating physician's prognosis and recommendations.
- By June 30, 2012, Mr. McAleer shall also comply with the provisions of M. Bar R. 7.3(i)(1).
- At all times relevant to the case, Richard E. Bridges was an attorney duly admitted to the practice of law in the State of Maine and was thus subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- The respondent represented the complainant, Kenneth Russell in respect to an insurance claim for a fire that had destroyed Mr. Russell's residence. Though the respondent did assist his client in obtaining a settlement for personal property destroyed in the fire, the respondent neglected his duty towards his client with respect to the additional claim regarding the destroyed real estate. Attorney Bridges failed to properly communicate with his client, he failed to respond to his client's questions and phone calls about the case, and he failed to return his client's file to him in a timely fashion when he was requested to do so. In fact, it is unclear to the panel whether the file was ever finally returned to the client as the respondent never turned over a copy of the file to bar counsel and did not present his file or any of its correspondence at the hearing.
- Though the respondent did respond to the initial inquiry from Bar Counsel, he failed to respond to an additional inquiry letter from Bar Counsel dated November 18, 2011. In particular, the respondent never provided Bar Counsel with a copy of Mr. Russell's file as was requested in that letter of November 18, 2011.
- The respondent was also not candid in his phone call with Bar Counsel's assistant on January 12, 2012, in that he stated he "thought" he had responded to the letter of November 18, 2011, when he knew in fact that he had not.
- Respondent was properly served with the Disciplinary Petition and he failed to file an answer to that petition at any time.
- Because of the above cited actions of the respondent, the Panel finds that the respondent did engage in misconduct as defined by Maine Rules of Professional Conduct 1.3; 1.4(a)(b), l.5(a); l.15(b)(2)(i-iv); 8.1(b) and 8.4(a)(c)(d).
- Secure client property consisting of original 'Wills only and client data contained within said Wills prepared by Attorney Caron.
- Notify clients or former clients via publication only in the Journal Tribune, the Sun Chronicle, and the Biddeford-Saco Courier, that the law practice has concluded and provide opportunity for clients to retrieve their property.
- secure the professional files, client property and client data of Ms. Thornton;
- inventory the closed client files;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property.
- As a service to the bar, Attorney Stolt has agreed to serve as this Receiver on a pro bono basis. He shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. Ms. Thornton (or her Estate) shall be the first choice for Source of payment for those disbursements. If insufficient assets are available from Ms. Thornton, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
- Attorney Stolt shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
- Attorney Stolt so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
- Secure the professional files, client property and client data of Attorney Kesaris.
- Obtain access to Attorney Kesaris' post office boxes to secure any law office or legal mail.
- Inventory the open and closed client files.
- Give priority attention to client matters which are open and time sensitive.
- Notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
- Attorney Fenton shall also prudently access and utilize Attorney Kesaris' operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
- Joan P. Davis was formerly known as Joan D. Dowdell. Dowdell was her married name and she is divorced from Mr. Dowdell and resumed using her maiden name. Ms. Davis's bar records in Maine are under the name Joan D. Dowdell.
- Attempt to locate, obtain and secure the professional files, client property and client data of Ms. Asquith;
- Inventory the closed client files;
- Notify former clients that Ms. Asquith is currently suspended from the practice of law, that her law office is currently closed, and to the extent he is able, provide an opportunity for those clients to retrieve their property.
- As a service to the Maine Bar, Attorney Weiss has agreed to serve as this Receiver on a pro bono basis. He shall submit a quarterly written report to the Court and to the Board of Overseers of the Bar through Bar Counsel, containing a record of time worked and the disbursements made in this matter.
- Ms. Asquith shall be the first choice for source of payment for those disbursements. If sufficient funds or other assets are unavailable from Ms. Asquith, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
- Attorney Weiss shall act as Receiver until discharged by the Court by Motion or in accordance with M. Bar R 7.3(f)(3).
- Attorney Weiss shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Respondent Nelson A. Toner of Portland, Maine is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. At the time the relevant factual events occurred in this matter, Mr. Toner was subject to the then applicable Code of Professional Responsibility.
On or about September 14, 2010, this grievance complaint was initiated and docketed with the Board of Overseers of the Bar by Bar Counsel on a sua sponte basis against Attorney Toner under M. Bar R. 7.1(b).
That filing occurred as a result of a jury verdict on July 2, 2010 in favor of the plaintiff Peter Redman in the matter of Peter Redman and Northern Mattress Company, Inc. v. Nelson Toner et al, Docket No. BCD-CV-09-07. The jury found that Attorney Toner had been professionally negligent in his representation of his client, Peter Redman.
Attorney Toner was represented by counsel in this docketed grievance matter. Subsequent to the trial court?s ruling on post-verdict motions, counsel filed Attorney Toner?s initial substantive response on or about May 17, 2011.
During the course of the Board?s investigation, Attorney Toner was afforded opportunities for further supplemental responses, resulting in a fully developed investigation pursuant to M. Bar R. 7.1(b).
On or about August 29, 2011 a Panel of the Grievance Commission reviewed this grievance matter and its related investigation. Based upon that review, the Panel found probable cause to believe that Attorney Toner had engaged in professional misconduct subject to sanction under the Maine Bar Rules. Accordingly, the Panel authorized Bar Counsel to prepare and present a formal Disciplinary Petition before a different Panel of the Grievance Commission.
Peter Redman had consulted with and hired Attorney Toner of Bernstein Shur Sawyer & Nelson (hereafter ?Bernstein Shur?) on April 14, 2004. In their first meeting, Mr. Redman described that he and his brother Mark Redman were co-owners of Northern Mattress Company and had been involved in a disagreement for several years about how to manage the Company. Peter Redman explained to Attorney Toner that his goals were to preserve the family business and to work out a viable, long-term management plan for the Company with his brother. He asked Attorney Toner to represent him personally in his dispute with his brother and to try to help him achieve his goals.
Because Attorney Toner?s primary area of practice was taxation and estate planning with some business planning work, he suggested to Mr. Redman that it would be appropriate to bring in his law partner, John Carpenter, to assist on the matter. Attorney Carpenter?s primary area of practice is corporate law. Attorney Toner proposed that he would stay involved in the project with Mr. Carpenter. Mr. Redman agreed to that recommended plan.
Two days after Attorney Toner?s initial meeting with Peter Redman, Attorney Toner arranged for Attorney Carpenter and him to meet with Mr. Redman to discuss the nature of his dispute with his brother. From those initial meetings and from a review of documents, those attorneys learned that Peter and Mark Redman were co-owners of Northern Mattress, having bought all the stock of the Company from their parents in the early 1990?s. At the time Mr. Redman hired Attorney Toner, Peter Redman owned 53% of the stock of the Company and Mark Redman owned 47%. However, Peter Redman had previously signed a Shareholders? Agreement with Mark Redman which provided that ?all significant decisions? regarding the Company required the mutual consent of both brothers. Attorney Toner later learned that Peter Redman had entered into this agreement against the advice of his prior legal counsel at the time.
Attorney Toner also learned from Peter Redman that he and Mark Redman frequently disagreed and often had arguments in front of other Company employees. Mr. Redman told Attorneys Carpenter and Toner that he had been on a ten-month leave of absence beginning in 2003 and that leave of absence had ended shortly before he first consulted Attorney Toner. During that leave of absence, Mark Redman had essentially been running the Company. Upon Peter Redman?s return to the Company in the spring of 2004, the prior conflict between Mark Redman and Peter Redman regarding the Company?s affairs erupted anew.
Peter Redman informed Attorneys Toner and Carpenter that, in an effort to try to alleviate part of their dispute, he and Mark Redman had agreed in early 2004 for Northern Mattress to hire Deborah Gallant of D. Gallant Management Associates. Ms. Gallant was so employed to act as an outside Human Resources director and assist in redefining the Redman brothers? respective management roles to make Company operations and management function better. However, the disputes between Mark Redman and Peter Redman continued after the engagement of D. Gallant Management Associates and became so disruptive that their corporate counsel had recommended that each Redman brother retain separate legal counsel. It was as a result of that recommendation that Peter Redman had consulted and hired Attorney Toner and Bernstein Shur.
Over the first few weeks of their representation of Peter Redman, Attorneys Toner and Carpenter had multiple conversations with their new client. They discussed the ongoing work dispute, the situation that Peter Redman found himself in under the Shareholders Agreement (joint decision-making by both brothers despite Peter Redman being the majority stockholder) and various strategies and options to try to resolve the management dispute and impasse.
On May 12, 2004 Peter Redman telephoned Attorney Toner and informed him that in a meeting on that date with Mark Redman and Deb Gallant, he was informed that a sexual harassment complaint had just been filed against him with Ms. Gallant by a Company employee, Tammy Simpson. Mr. Redman telephoned Attorney Toner from that meeting. Attorney Toner advised Mr. Redman that he was unable to come over to the meeting at that moment but he advised Mr. Redman to take notes and contact him after that meeting. Peter Redman then told Attorney Toner that on May 11, 2004 Ms. Simpson had made a complaint to Ms. Gallant about Peter Redman?s behavior toward Ms. Simpson. She had claimed that Peter Redman had grabbed her hand at work on two different occasions that day which caused her to be ?freaked out.? The first alleged offensive hand-touching had occurred outside Peter?s office at Northern Mattress when he had ?casually grabbed her hand? as if to shake it. Peter then later that same day allegedly followed her into her office, took and held her hand for an ?uncomfortably long time? (15 to 20 seconds) and had then pounded his chest area near his heart stating to Ms. Simpson that ?you are in here.?
Following the May 12, 2004 meeting, Mr. Redman sent Attorney Toner the notes he made at that meeting. The notes included the following:
As a HR Person hired by the Company she [i.e. Deb Gallant] is looking out for the best interests of the Company. She felt that I should take two weeks of (sic) pending investigation. I agreed. Tammy is a great asset to the Company.
Peter Redman told Attorney Toner that he had done nothing wrong, but did inform him that Northern Mattress had directed Ms. Gallant to investigate the Simpson complaint. Attorney Toner and Mr. Redman agreed to wait and see what she concluded. After briefly speaking with Mr. Redman on May 12th, Ms. Gallant never contacted him again concerning his response to Ms. Simpson?s harassment complaint against him.
Ms. Gallant investigated the Simpson complaint, prepared a report and presented a report of her investigation to Peter Redman at a meeting on May 19, 2004.
In her Report Conclusions and Recommendations [the Gallant Report], Ms. Gallant stated:
After reviewing internal documents in detail and analyzing the interview notes from meetings and telephone conversations with Peter, Mark Redman, Mark Bell and Tammy Simpson, Deborah Gallant concludes that the situation presented in Tammy?s complaint is very serious. Tammy has brought this situation up to the management of Northern Mattress & Furniture Galleries on numerous occasions over the years. Her request is fairly straightforward. Tammy is asking Peter to please stay away from her, leave her alone, and not talk to her. Deborah, Peter and Mark Redman had talked about this request several times previously and subsequently they structured Peter?s role at the Company appropriately to accommodate that request. Peter, however, has not adhered to the request or the structure that we had set up. Peter was asked to submit advice and suggestions (related to Tammy?s areas of responsibility) through Mark Redman. Instead, Peter goes into the office on a day that he knows Mark Redman is in Massachusetts, and repeatedly communicates directly to Tammy throughout the day and after, despite her repeated requests not to.
Peter Redman provided Attorney Toner with a copy of the Gallant Report. Mr. Redman told Attorney Toner he believed he had done nothing wrong or improper with Ms. Simpson. Given that Mr. Redman did not deny to him the facts in the Gallant Report, Attorney Toner did not conduct a further investigation of the veracity of Ms. Simpson?s accusations against Peter Redman. Instead, with Mr. Redman?s agreement, he provided the Report to Kate Debevoise, a Bernstein Shur attorney specializing in employment law and employment discrimination matters, to seek her opinion as to whether the facts in the Gallant Report could give rise to a claim by Ms. Simpson under Maine law. From his discussions with Peter, Attorney Toner knew that Peter was very upset that Ms. Simpson had made a complaint with those accusations.
Attorney Toner did immediately consult with Attorney Debevoise, a shareholder of Bernstein Shur, who had substantial experience representing employer clients before the Maine Human Rights Commission, and had lectured and written extensively on the subject of employment discrimination. Attorney Debevoise reviewed the Gallant Report and the Company?s Employee Manual, and called Ms. Gallant. She noted that the Gallant Report did not contain a specific factual finding that Peter Redman had done anything wrong.
Attorney Debevoise told Attorney Toner that she had spoken to Ms. Gallant and that Ms. Gallant told her she had concluded that Ms. Simpson?s complaint was serious and had merit and proposed a remedy to make sure that Peter Redman and Ms. Simpson did not interact at work. Attorney Debevoise reported to Attorney Toner that Ms. Gallant told her that she was concerned that Ms. Simpson would file a complaint against Peter Redman and the Company with the Human Rights Commission, and that Ms. Gallant was worried that such a complaint could hurt Peter Redman and the Company.
Attorney Debevoise also told Attorney Toner that, based on what she had learned, she concluded that this was a serious matter with potential risks to Mr. Redman. She said that regardless of whether Peter Redman agreed with the investigation done by the Company?s own Human Resources Director, there was really no practical way for Bernstein Shur to do an independent fact investigation that would supersede the investigation by the Human Resources Director of the Company. As a result, she advised that the Human Rights Commission would most likely place great weight on a report that had been done by Ms. Gallant in that capacity.
Attorney Debevoise further informed Attorney Toner that her assessment, based on her experience and review of the Company?s employment manual and the Gallant Report, was that, regardless of whether Peter Redman was subjectively blameless, there was a serious risk of a legal complaint against Mr. Redman personally, especially if he chose not to follow the recommendations of the Gallant Report.
Attorney Toner recalls having numerous telephone conversations with Peter Redman in May and early June 2004, and discussing with him Attorney Debevoise?s evaluation of the Gallant Report and the options available to Mr. Redman on how to proceed. They discussed the option of contesting the Simpson complaint or trying to resolve and defuse it and the likely consequences of pursuing those two different options. As a result of those discussions and the information and options given to Mr. Redman in those conversations, Attorney Toner believed Mr. Redman wanted him to try to resolve the Simpson dispute in a non-litigious manner, an option that Attorney Toner had previously explained to him. Attorney Toner, however, failed to make any notes of all those conversations with Peter Redman and he did not send a written message to Mr. Redman confirming the conversations or Mr. Redman?s decision. Attorney Toner asserts that in his over 25 years of practice it had not been his pattern to make detailed notes of every conversation with clients or to always send letters, memos or emails to clients confirming all conversations.
At the suggestion of Attorney Toner and with the agreement of Peter Redman, Attorney Carpenter had been working on some of the business involved in the Peter Redman vs. Mark Redman dispute. Attorney Carpenter testified at trial that Peter Redman contacted him in late May or early June 2004 to ask Attorney Carpenter if he believed that Mr. Redman had made a good decision in directing Attorney Toner to try to resolve and defuse the Simpson complaint without litigation or proceedings before the Maine Human Rights Commission. Attorney Carpenter also testified that he responded and told Mr. Redman he thought he had made a good decision, and one that allowed him and his attorneys to stay focused on Mr. Redman?s goals of preserving the integrity and value of Northern Mattress Company.
Notwithstanding Attorney Toner?s and Attorney Carpenter?s trial testimony regarding these events, Attorney Toner recognizes that Superior Court Chief Justice Humphrey determined, in his February 4, 2011Order on Defendants? Rule 50 and Rule 59 Motions, that the jury in the Redman v. Toner and Bernstein Shur civil case could have found, in the face of conflicting evidence, that Mr. Redman told Attorney Toner that he wanted to fight the accusations, that Attorney Toner and Bernstein Shur did not follow Mr. Redman?s instructions and that Attorney Toner decided to resolve the situation without Mr. Redman?s knowledge or authority.
As a means of so resolving and not contesting the Simpson complaint, Attorney Toner asked Attorney Debevoise to prepare a memorandum from Mark Bell, the General Manager of Northern Mattress, to Ms. Simpson. Although the ?Bell memo,? as it later became known, was signed by Mark Bell, it was actually drafted by Attorney Debevoise. According to Chief Justice Humphrey?s February 4, 2011 Order, the jury could have found that Adam Taylor, Mark Redman?s attorney, had input in the drafting of the Bell Memo.
Attorney Debevoise sent a draft of that memo to Ms. Gallant who made changes which were incorporated into the final version of the Bell memo. As issued, the substance of the Bell memo was that Ms. Simpson?s allegations against Peter Redman ? and the findings and conclusions of the Gallant Report, e.g. that the Company was going to have Peter Redman work at home to avoid contact with her ? were accurate and to be implemented.
Without first so informing or providing his client, Peter Redman, with any opportunity to review or approve the contents of the Bell memo, on June 10, 2004 Attorney Toner sent that final version of the Bell memo to Mark Bell for him to sign and deliver to Ms. Simpson. She received it on June 11, 2004.
As issued and received by Ms. Simpson, the Bell memo inter alia stated to her the following:
Again, notwithstanding the trial testimony of Attorneys Toner and Carpenter, Chief Justice Humphrey noted in his February 4, 2011 Order that the jury could have found that Peter Redman was not informed by Attorney Toner that he was resolving the Simpson complaint matter in this way and against his instructions, and did not know that his attorney was consulting in that regard with his brother?s attorney. Peter also did not receive a copy of the Bell memo until after it was presented to Ms. Simpson.
Assuming that Attorney Toner may have reasonably believed that Mr. Redman had approved the course of action reflected in the Bell memo, he agrees that he never provided Peter Redman with a draft copy of the memo for his review and approval. Although Attorney Toner may have believed the Bell memo reflected the steps that Mr. Redman had already agreed to in his discussions with Attorney Toner, he agrees that he should have ? but failed to ? properly so communicate and confirm in writing his understanding of his client?s decision on how to resolve the Simpson matter.
Attorney Toner now agrees and admits his failure to do so was a violation of then applicable Maine Bar Rule 3.6(a) (keeping a client informed about that client?s legal affairs).
Attorney Toner does not personally know when Mr. Redman first saw the Bell memo or how it came to his attention. However, he does agree that on July 21, 2004 he sent a letter to the new corporate counsel for the Company. That letter related in part to the Simpson complaint, and included a copy of the Bell Memo. Attorney Toner sent a contemporaneous copy of that letter to Peter Redman (he is shown as a ?cc w/enc.?). As a result, Peter Redman had then indirectly learned about the Bell Memo by that date at the latest.
Mr. Redman fired Bernstein Shur in late August 2004 and hired another law firm, Brann & Isaacson. Tammy Simpson did not file a Human Rights Commission complaint or a lawsuit against Peter Redman or the Company.
On November 20, 2008, more than four years after he fired Attorney Toner, Peter Redman filed suit against Attorney Toner and Bernstein Shur alleging professional negligence. The jury trial resulted in a $7.3 million Plaintiff?s verdict in July 2010. That matter then settled while an appeal was pending. Peter Redman never filed any grievance complaint with the Board against Attorney Toner or any other attorney at Bernstein Shur.
On February 21 and August 28,2012, respectively, these two (2) related matters were then reviewed and authorized for public disciplinary proceedings pursuant to M. Bar R. 7.1(d); and
Based upon counsel's additional discussions and review of the entire facts relating to each matter, however, counsel now jointly agree there is insufficient basis to warrant initiation of disciplinary proceedings in pursuit of a finding of professional misconduct by either Attorney John L. Carpenter or Attorney Kate S. Debevoise.
On February 21 and August 28,2012, respectively, these two (2) related matters were then reviewed and authorized for public disciplinary proceedings pursuant to M. Bar R. 7.1(d); and
Based upon counsel's additional discussions and review of the entire facts relating to each matter, however, counsel now jointly agree there is insufficient basis to warrant initiation of disciplinary proceedings in pursuit of a finding of professional misconduct by either Attorney John L. Carpenter or Attorney Kate S. Debevoise.
Secure the professional files, client property and client data of Attorney Bates.
Obtain access to Attorney Bates?s post office boxes to secure any law office or legal mail.
Inventory the open and closed client files.
Give priority attention to client matters which are open and time sensitive.
Notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
Attorney Dawson shall also prudently access and utilize Attorney Bates?s operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
In late June 2011 District Court Judge Valerie Stanfill filed a grievance complaint against Asquith concerning her conduct as a guardian ad litem (GAL) in a family matter based upon her failure to a) file a GAL Report; b) file an itemized bill; c) comply with the court?s order; and d) attend a required conference with the court. Asquith never responded to Bar Counsel?s request for a written response to the court?s grievance complaint.
In September 2011 Lisa West-Harper and her spouse, Brent Harper, former clients of Asquith, filed simultaneous but separate Petitions for Arbitration of Fee Dispute against her. Asquith ignored each Petition, failed to file a reply to either matter, and failed to appear at the Fee Arbitration Commission Panel?s joint hearing on January 19, 2012. After conducting a default hearing on each fee matter, the Panel issued separate awards directing Asquith to refund those former clients unearned fee amounts of $5,675.00 and $7,325.00, respectively. Asquith then ignored the 30-day refund payment requirements of M. Bar R. 9(i) and never paid any amount of the ordered awards to either of those clients. Due to Asquith?s failure to make any such ordered refund of unearned fees, the Harpers later filed claims with the Lawyers? Fund for Client Protection (LFCP). On October 15, 2012 the LFCP?s Trustees approved those claims and ordered payments by the LFCP of $5,675.00 to Ms. West-Harper and $7,325.00 to Mr. Harper, respectively. Those payments were subsequently made to each Petitioner.
In late October 2011 Attorney Neil Shankman filed a grievance complaint against Asquith based upon her failure to comply with the terms of a court order in a pending family matter in which Asquith and Shankman represented the opposing parties. Asquith repeatedly ignored Shankman?s many requests that she comply with that order, and she also failed to respond to Bar Counsel when it inquired about the matter.
In January 2012 Virginia Hodge filed a grievance complaint against Asquith. Hodge is self-employed as Virginia R. Hodge Abstracting, Inc. in Bangor, Maine. Asquith hired Hodge in late April 2011 to perform an urgent search in the Waldo County Registry of Deeds. Hodge immediately performed that search as requested. Despite Hodge?s repeated requests?and Asquith?s initial deceptive promises?Hodge has never received payment by Asquith of her invoice of $109.00. Asquith failed to respond to Bar Counsel?s inquiry concerning Hodge?s complaint.
Asquith also never filed any Answer to the Board?s two subsequently filed Disciplinary Petitions, which included detailed factual allegations of her misconduct concerning three of the grievance complaint filings described above, specifically those described in paragraphs 1, 3 & 4. Asquith?s failure to respond, resulted in her admission by default of all of the facts and related rules violations alleged against her by the Board.
In May 2012, Ashley Bonang filed a grievance complaint against Asquith, whom she had hired and paid $1,200.00 in February 2012 to handle a family matter. Bonang?s allegations indicated that Asquith failed to earn that fee, was not entitled to any further fees as Asquith demanded, failed to make necessary filings with the court, and had abandoned Bonang by failing to appear and represent Bonang at her divorce hearing on May 7, 2012. Through counsel, Asquith responded to this grievance complaint. Although Asquith claimed in that response that she had earned her fee, she now acknowledges that she failed to properly seek or obtain court-approved withdrawal in Bonang?s family matter, and thereby caused Bonang to be without proper representation on the date of her divorce hearing.
In July 2012, Shane Edwards complained to the Board concerning Asquith?s services and conduct as the parenting coordinator in what he described as a ?high conflict divorce.? Through counsel, Asquith answered the Edwards complaint. Although Asquith initially denied most of Edwards? allegations, she now agrees that she should have better communicated with the parties in that matter to articulate the circumstances that would compromise her responsibilities and duties as a parenting coordinator. The issues that Edwards raised concerning Asquith?s fees in that matter remains pending for hearing before the Fee Arbitration Commission.
In September 2012, client Lisa Bauer complained to the Board that Asquith failed to properly handle two separate court proceedings on her behalf. Both complaints concerned family matters involving Bauer?s children. Her complaint detailed Asquith?s failure to communicate, failure to earn her fees, failure to appear at important meetings, and failure to file proposed orders and necessary appeals. Attorney Smith filed a general denial of misconduct by Asquith concerning Bauer?s cases. Asquith does not now contest that she engaged in professional misconduct in her mishandling of Bauer?s case.
Based on her misconduct in these seven distinct matters, the Court finds that Asquith violated the following:
- It is clear from the parties? representations and information provided to the Court, with Asquith?s consent, by Attorney William Nugent, Director of the Maine Assistance Program for Lawyers (MAP), that Asquith appears to suffer from a significant and debilitating mental health-related condition, specifically depression.
- As a result of her significant and repeated instances of serious professional misconduct, it is clear that Asquith has been and remains unable to properly discharge her professional duties. The extent to which Asquith?s depression caused her misconduct and ineffective representation of clients is relevant but not dispositive. This matter is before the Court pursuant to M. Bar R. 7.2(b). No disability proceeding has been pursued or filed under M. Bar R. 7.3(e). Nevertheless, the Court includes appropriate conditions within this disciplinary sanction Order to properly address Asquith?s ongoing serious depression.
Effective immediately and pursuant to M. Bar R. 7.2(b), Carolyn Asquith shall remain disciplinarily suspended from the practice of law in Maine. The suspension is based upon Asquith?s violation of the Maine Bar Rules and her numerous, serious violations of various Maine Rules of Professional Conduct, as set forth below.
Asquith?s suspension is for the term of four (4) years from this date. Twelve (12) months of that suspension, however, is suspended, provided that Asquith does not otherwise violate the conditions of this Order or commit any new violations of the Maine Rules of Professional Conduct or the Maine Bar Rules. In addition, on or after July 1, 2014, Asquith may petition the Court for an additional suspension of all or a portion of her remaining suspension, provided that Asquith has fully complied with all of the requirements of this order as of the date of the petition and has not committed any new violations of the Maine Rules of Professional Conduct or the Maine Bar Rules. Any such petition shall be supported by an affidavit detailing Asquith?s mental health treatment, her recent work history, and her compliance with the various requirements of this Order.
Any employment undertaken by Asquith during that suspension from practice must not in any way involve the provision of legal services as an attorney. Furthermore, she is required to ensure that any law firm and firm clients for whom she may work as a paralegal or in any other non-attorney capacity are properly informed of the limitations of her services and are provided a copy of this Order.
Prior to her reinstatement in Maine, Asquith must comply with the provisions outlined in M. Bar R. 7.3(j), as well as complete the conditions set forth below.
Asquith is Ordered and further agrees to the following conditions as part of her reinstatement, should that occur pursuant to M. Bar R. 7.3(j):
secure the professional files, client property and client data of Attorney Dawson;
obtain access to Attorney Dawson's post office boxes to secure any law office or legal mail;
inventory the open and closed client files;
give priority attention to client matters which are open and time sensitive; and
notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
Attorney Gasink shall also prudently access and utilize Attorney Dawson's operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
Secure the professional files, client property and client data of Attorney Griffin.
Inventory all of Attorney Griffin's open and closed client files.
Give priority attention to client matters which may be time sensitive.
Notify clients or former clients of the location of their respective files or other client property, and provide opportunity for those clients to retrieve their property.
As a service to the bar, Attorney Oxman has agreed to serve as the Receiver on a pro bono basis. He shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing as record of time worked and disbursements made in this matter. Attorney Griffin's Estate shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Griffin's Estate, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Oxman shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 7.3(f).
Attorney Oxman so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 7 .3(f).
Furthermore, Attorney Oxman may be engaged by any former client of Attorney Griffin provided that he informs such prospective client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend this Receiver's employment by the client.
Attorney Oxman is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver/ Attorney Oxman as successor counsel is not a per se conflict of interest solely by reason of Attorney Oxman's appointment to serve as the Receiver by terms of this Order. Attorney Oxman shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Secure the professional files, client property and client data of Mr. Otis.
Obtain access to Mr. Otis?s post office boxes to secure any law office or legal mail.
Inventory the open and closed client files.
Give priority attention to client matters which are open and time sensitive.
Notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
Attorneys Cardone and Winchell shall also prudently access and utilize Mr. Otis?s operating and IOLTA accounts to effect a formal wind down of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
Meet with Receiver(s) Cardone & Winchell or their designee at the R.D. Faulkner Building in Brewer, Maine;
At that time, Mr. Otis shall return and relinquish possession of the following items: all client files, including those stored in his laptop, flash drives or other document storage; all client property, all client funds, all electronic files and any other data including passwords related to Mr. Otis?s law practice. In doing so, Otis shall not remove or delete any documents or information related to that practice;
Mr. Otis shall not attempt to or actually access or utilize the law office email account, the law office website; any operating and/or IOLTA accounts or any estate bank accounts under his control. Those banking institutions involved with all such accounts shall be provided with immediate notice by the Receivers that only Attorneys Cardone and Winchell as Court-appointed Receivers have the right to access the accounts associated with the law practice.
If Mr. Otis believes that certain bills or accounts are delinquent or require immediate attention, he shall submit those bills and or provide the necessary information to the Receivers;
Mr. Otis shall not enter or access the law office unless accompanied by a Receiver.
Mr. Otis and his law office staff (including temporary or part-time staff) shall relinquish to the Receivers all keys to the following;
- Shusta?s $1,000 retainer was defined in Armiger?s Hourly Fee Agreement as non-refundable;
- Shuasta failed to inform her before she tendered the money that the $1,000 was non-refundable;
- Shusta charged Armiger an unreasonable amount he when initially refused to return to Armiger the unused portion of that retainer. When Armiger continued to complain Shusta then agreed to return only $400, with the apparent result that Armiger paid approximately $600 for a letter that took approximately one billable hour of Shusta?s time;
- Shusta failed to provide Armiger with a bill for the letter he wrote on her behalf, despite the fact that his Hourly Fee Agreement required him to do so.
- Rule 1.5 (a), which prohibits a lawyer charging a retainer that is non-refundable regardless the amount of work the lawyer performs (see Rule Comment?2009 (4): ?A lawyer may require advanced payment of a fee, but is obliged to return any unearned portion.);2
- Rule 1.5 (a), which prohibits charging an unreasonable amount for expenses;
- Rule 1.15 (b) (2) (iv) which requires a lawyer to promptly return to a client money which the client is entitled to receive; and
- Rule 1.16 (d) which requires a lawyer upon termination of representation to refund ?any advance payment of fees or expenses that has not been earned or incurred?.?
Dr. Gerber is an articulate, sophisticated professional who in his e-mails attached as Exhibits by both parties and in his testimony demonstrated no reluctance or inability to advance his position. Ms. Duval is fluent in her native French but demonstrates clear capability to communicate well in English; she acknowledged, however, that Dr. Gerber had a better recollection and more involvement on many issues.
Complainants acknowledged that Attorney Thompson and his firm devoted significant effort and understanding of the facts and the law underlying their claim.
Despite their contention that they thought that the settlement demand in the mediation paper was their true settlement figure, Complainants did not dispute that they agreed with the recommendation of Attorney Thompson prior to the mediation that the case had a settlement value at a lesser figure.
Complainants did not rebut the testimony of Attorney Thompson that Complainants had in fact stated that they did not wish to return to employment at DECH, but contend that their acknowledgement meant only that they did not wish to return to employment at DECH while the current management at DECH was in place.
The duration of the negotiation of the Paragraph 4 of the revised Term Sheet regarding the language of the reference letter was one to one and a half hours of back-and-forth discussion and drafting. Complainants do not dispute that they agreed to the language at Paragraph 4 when they signed the Term Sheet, but contend that they were under duress when they did so.
The dollar figure of the settlement set forth in the Term Sheet was in an amount greater than the amount earlier discussed with Complainants.
Attorneys Thompson and Hansen reasonably believed that they fully explained all terms and conditions of the revised Term Sheet to the Complainants and that the Complainants understood and accepted the condition of the settlement.
At the conclusion of the mediation Complainants expressed great satisfaction and relief with the settlement and appreciation for the work of the counsel.
George P. Kesaris died on or about July 13, 2012, leaving no partners or associates capable of winding down his law practice.
On or about August 23, 2012, Nathaniel R. Fenton was appointed by this Court as Receiver of the law practice of George P. Kesaris.
Following the appointment, the Receiver of George P. Kesaris's practice, took possession of records relating to the attorney trust account maintained by George P. Kesaris at Camden National Bank, account number 9242732 for the purpose of determining the ownership of the funds in the account.
As of July 13, 2012, the balance in George P. Kesaris's attorney trust account at Camden National Bank was $3.74.
The total value of trust account funds belonging to clients of George P. Kesaris is $3.74.
The Personal Representative had no knowledge of any other claims against George P. Kesaris's trust accounts.
The Receiver has been unable to determine the owners of the remaining $3.74 in the trust account of George P. Kesaris.
The Receiver has received no notice of any claim to client trust account funds from any former client of George P. Kesaris or any other individual or entity.
The Court has jurisdiction of this matter pursuant to M. Bar R. 7.3(f).
The funds in George P. Kesaris's client trust account must be disbursed equitably to George P. Kesaris's former clients, but the client(s) entitled to such funds are unknown.
The Receiver requests that said sum be given to the Office of Bar Counsel to hold for George P. Kesaris's clients.
On August 23, 2012, upon motion of Nathaniel R. Fenton, the Court appointed Nathaniel R. Fenton, Esq., as Receiver of the law practice of George P. Kesaris for the purpose of obtaining possession of files belonging to George P. Kesaris's clients, securing funds held in George P. Kesaris's operating and trust accounts, obtaining George P. Kesaris's trust account records, and protecting the interests of the clients and/or former clients of George P. Kesaris.
It appears that Nathaniel R. Fenton, Receiver of the law practice of George P. Kesaris, acting in good faith, has taken all reasonable steps to fulfill his obligations as Receiver of the law practice of George P. Kesaris. He has returned or attempted to return all client files to their rightful owners. He has secured funds held in George P. Kesaris's operating and trust accounts, and has identified or attempted to identify the persons to whom those funds belong.
Nathaniel R. Fenton has reviewed George P. Kesaris's clients' files. An inventory of the client files has been provided to the Office of Bar Counsel.
Nathaniel R. Fenton has distributed files to a significant number of clients and/or former clients of George P. Kesaris. Nathaniel R. Fenton has returned, when possible, all active client files to the respective clients.
A number of George P. Kesaris's clients have not picked up their files, despite the Receiver's good faith effort to provide them notice that they should do so. Nathaniel R. Fenton now has in his possession more than 1,000 client files wherein he has received no instructions regarding the storage or return of the files to the former clients.
Some disposition needs to be made of the remaining files of George P. Kesaris's former clients. Margaret T. Jeffery, Esq., an attorney having an office in the same building as George P. Kesaris, is the most appropriate caretaker of the remaining files Margaret T. Jeffery is willing and able to execute these duties. She has been instructed by the Receiver in the proper method of tending and distributing these files.
The Receiver has disbursed all funds from any trust accounts held by George P. Kesaris to the Office of Bar Counsel.
Nathaniel R. Fenton, Receiver of the law practice of George P. Kesaris, has taken all reasonable steps to discharge his obligations as Receiver of the law practice of George P. Kesaris, to return all client files, and to disburse all funds in George P' Kesaris's operating and trust accounts.
Pursuant to the directions provided to Margaret T. Jeffery, she can be authorized to maintain in storage at 59 Cottage Steet, Bar Harbor, Maine those client files that have not yet been retrieved by the former clients of George P. Kesaris.
Nathaniel R. Fenton is discharged as Receiver of the law practice of George P. Kesaris
Margaret T. Jeffery, Esq., Bar No. 7600, is hereby authorized to maintain in storage at 59 Cottage Street, Bar Harbor, Maine those client files that have not been retrieved by the clients of George. P. Kesaris. The tending of these files will be accomplished as outlined in the letter of instructions attached hereto as Exhibit 1.
- In April of 2007, Vladek Filler was arrested and charged with one count of Class A gross sexual assault against his wife, Ligia Filler (Ligia). That crime was alleged to have occurred on April 6, 2007.
- On August 7, 2007, Vladek Filler was indicted by a Hancock County Grand Jury for five counts of Gross Sexual Assault (Class A) and two counts of Assault (Class D), all alleged to have been committed by him against Ligia. Filler pleaded ?not guilty? to all of the charges at his arraignment later in August.
- Defendant, Mary N. Kellett, Esq. of Ellsworth, County of Hancock, Maine, prosecuted the State?s case against Filler. She is now and was at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
- Kellett was admitted to the Maine bar in October 1992 and is an experienced criminal prosecutor, having for more than 10 years served as an Assistant District Attorney (ADA) for Prosecutorial District VII, which covers Hancock and Washington Counties in Maine.
- Attorney Daniel Pileggi represented Filler on those criminal matters.
- ADA Kellett?s office provided Attorney Pileggi with the initial discovery materials on or about August 7, 2007. The standard discovery form(s) used by Prosecutorial District VII in that matter included the following form language: [ ] Original/Color Photos available for your inspection upon request through this office. [ ] Video/ Audio Tapes/CD/DVD available for your viewing/listening upon request through this office. ***PLEASE NOTIFY THE LAW ENFORCEMENT AGENCY IF YOU WOULD LIKE TO OBTAIN YOUR OWN COPY OF ANY ORIGINAL/COLOR PHOTOS, VIDEO/ AUDIOTAPES/CDS/DVDS AT YOUR EXPENSE. ***
- On September 6, 2007, Attorney Pileggi made a detailed and explicit request for supplemental discovery pursuant to M.R. Crim. P. 16(a)(b) in a letter to ADA Kellett, including inter alia a specific demand for: Ligia Filler?s statement to the Ellsworth Police Department regarding interaction between Mr. Filler and Ellsworth American Editor Steven Fay. The interview and written statement apparently were provided to Ellsworth Police on or about April 11, 2007.
- ADA Kellett did not provide the requested statement to the defense at any time in September of 2007.
- In a letter dated October 5, 2007, Attorney Pileggi reminded ADA Kellett of his earlier requests of September 6th, and renewed those discovery requests.
- The October 5, 2007 letter reiterating a discovery request also included an additional specific request for: police reports from Washington County Deputy Sheriff Travis Willey and Lieutenant Denbow relating to an incident with Ligia Fuller on April 24, 2007. The incident is directly related to her allegations against Mr. Filler.
- On October 12, 2007, after ADA Kellett had again not provided the requested discovery, Attorney Pileggi filed a detailed Motion for Discovery with the court.1
- At no time did ADA Kellett file an objection to the discovery motion with the court.
- Despite two written requests and the filing of a formal discovery motion, and without filing an objection to the motion, ADA Kellett still did not provide Attorney Pileggi with any materials from the Ellsworth Police Department relating to the April 11, 2007 incident.
- On October 24, 2007, however, ADA Kellett did provide Attorney Pileggi with a five-page report from Washington County Deputy Sheriff Travis Willey concerning his involvement with Ligia Filler on April 24, 2007.2 ADA Kellett?s office had received the report five months earlier, on May 29, 2007.
- Although Deputy Willey?s report included a ?CAD Event Detail Page,? indicating that Ligia Filler had called 911 ?several times, claiming rape by her husband,? ADA Kellett did not include a 911 audiotape with the report when she provided it to Attorney Pileggi in October 2007.
- On October 31, 2007, Attorney Pileggi wrote to ADA Kellett acknowledging that he had received the report concerning Ligia?s April 24, 2007 interaction with the Washington County Sheriff's Department. He then specifically requested the ?tape or log of the 911 call, along with whatever photographs, audio or videotapes were created at the time.? In that letter, he specifically reminded ADA Kellett, ?Deputy Willey?s report references those items.?
- On November 2, 2007 ADA Kellett called Attorney Pileggi?s office and told a staff person there that if Attorney Pileggi wished to obtain the requested photos and recordings he could contact the law enforcement agencies that had them in their possession. This contact was memorialized in a note she made in the margin of Attorney Pileggi?s October 31, 2007 letter.
- Filler?s trial was originally scheduled to be heard in June of 2008.
- In May of 2008, Attorney Pileggi issued several subpoenas duces tecum to various law enforcement and public officials. Among those was a subpoena served on Ellsworth Police Officer Chad Wilmot on May 15, 2008.
- That subpoena required Officer Wilmot to appear at the Hancock County Superior Court on June 9, 2008 in the matter of State of Maine v. Vladek Filler and to bring:
1. Any and all reports, photographs, recorded interviews, or other investigative materials related to an April 11 or 12, 2007 dispute involving Vladek Filler and Stephen Ray of The Ellsworth American. The request includes, but is not limited to, records of the Ellsworth Police Department interviews with Ligia Filler.
2. Any and all Ellsworth Police Department investigative records made between April 2007 and May 15, 2008 relating to conduct by Ligia Filler.
- On May 16, 2008, Officer Wilmot informed ADA Kellett that he was going to provide the subpoenaed materials to Attorney Pileggi before the scheduled trial date of June 9, 2008.
- At that time, without reviewing the materials Officer Wilmot had prepared for Attorney Pileggi to ascertain what was contained within the reports, or whether there was any exculpatory material included with the reports, ADA Kellett told Officer Wilmot not to provide those materials to Attorney Pileggi before the court hearing date. She issued that instruction because she did not agree that the report of Officer Wilmot should be provided and because there was a discovery motion pending before the court concerning the production of the materials relating to the Ellsworth American incident.
- Following that instruction from ADA Kellett, Officer Wilmot did not provide Attorney Pileggi with any documents concerning the April 11, 2007, incident.
- Filler?s case was subsequently removed from the June 9, 2008, trial list. As a result, Officer Wilmot was released from Attorney Pileggi?s subpoena, and Attorney Pileggi did not receive the complete set of requested reports or written statements from Officer Wilmot.
- In May or June 2008, ADA Kellett spoke to Deputy Willey of the WCSO and requested that he provide her office with the recordings associated with the April 24, 2007, incident.
- On June 3, 2008, the court (Anderson, J.) held a hearing on Filler?s motion for discovery. During the hearing, ADA Kellett informed the court that it was the position of her office that Officer Wilmot?s report was subject to the provisions of 16 M.R.S. § 614 as a confidential criminal investigative document, and that ?the court would need to make a decision before we release that information . . . .?
- On June 3, 2008, after hearing argument of counsel and conducting an in camera inspection of the portion of Officer Wilmot?s police report that had been provided to the court by ADA Kellett, the court (Anderson, J.) ruled: ?I?m going to grant the request and order that it be turned over.? The court then issued a handwritten order concerning the motion for discovery. That order specifically required the State to provide all ?reports concerning #1 and #3? to Attorney Pileggi ?including any audio or videotapes that may exist.? Item ?#3? stated as follows:
3. Ellsworth Police Department investigative reports: The reports include interviews with defendant and the alleged victim, and relating to an altercation between the defendant and a representative of a local newspaper. Upon information and belief, Ms. Filler made numerous statements bearing upon Mr. Filler's physical limitations, and his lack of capacity to commit the acts for which he is charged in this action.
- In response to the court?s discovery order, ADA Kellett provided Attorney Pileggi only with the same three-page narrative from the report of Officer Wilmot concerning the Ellsworth Police Department's investigation of the April 11, 2007, incident that the court had reviewed in camera. In addition to that three-page report by the officer, the investigative reports contained a hand-written statement by Ligia and statements from others involved in the incident on April 11, 2007. All of those statements were ?scanned? into the report.3 Although the scanned statements should have been turned over pursuant to the court?s order, ADA Kellett did not obtain or review those documents and never provided them to Attorney Pileggi.
- The June 3, 2008, court order granting the discovery motion also specifically ordered the State to provide Attorney Pileggi with item #1, which stated as follows:
1. Washington County Sheriff?s incident reports dated April 24. 2007. Deputy Sheriff Travis Willey and Lieutenant Denbow interviewed the alleged victim, Ligia Filler after intervening for a ?crisis evaluation,? in which Ms. Filler chanted about ?cutting up? the defendant while laughing and crying hysterically, swearing and kicking a door. It was reported that Ms. Filler made various statements about the facts giving rise to the charges in this matter.
- At the motion hearing, ADA Kellett assured the court and Attorney Pileggi that ?we have requested [the recording associated with the April 24, 2007, events] and it?s in the process of being produced.?
- On July 16, 2008, Attorney Pileggi wrote ADA Kellett another letter, reminding her that he was still ?awaiting copies of audio and visual recordings referenced in the Washington County Sheriff?s Department?s reports, and addressed by Justice Anderson?s recent order.?
- On August 1, 2008, ADA Kellett requested that someone from her office (Victim Witness Advocate Ken Mitchell) contact Deputy Willey to ask about the existence of the materials ordered by the court nearly two months earlier. She also requested that Detective Stephan McFarland contact Deputy Willey in an effort to get materials including recordings from the WCSO. McFarland was a detective in the District Attorney?s office who had been investigating the Filler case.
- On August 25, 2008, Deputy Willey provided to the District Attorney's office an audio CD of his April 24, 2007 interview with Ligia Filler, but did not include the videotape of that interview, nor any of the Washington County 911 recordings.
- As of September 3, 2008, despite his repeated requests, Attorney Pileggi had still not received the Washington County recording ordered by the court three months earlier. On that date, he emailed ADA Kellett advising her that he would seek a ?contempt finding? or ?discovery sanctions? unless she could find a way to provide him with the recordings ordered by the court. He acknowledged in his communication that Kellett?s office had ?sought compliance from the sheriff?s office . . .? and noted ?the officers? failure to supply tapes/cds.?
- On September 3, 2008, ADA Kellett informed Attorney Pileggi that she had received an audio CD from Deputy Willey, and she provided him with a copy on September 8, 2008. She also informed him that the video version could not be copied, and that ?it doesn't really show anything.? She advised Attorney Pileggi that he could make arrangements to view the video at the WCSO because she believed it could not be copied. On September 15, 2008, Attorney Pileggi emailed a member of his staff to make the arrangements with Deputy Willey to watch the video.4
- There was no 911 ?log? associated with the calls referenced in the Washington County Sheriff?s Office (WCSO) report of the April 24, 2007, incident. The ?CAD Event Detail Page? that had been supplied to Attorney Pileggi on October 24, 2007, was the only log regarding those calls created by law enforcement.
- There was, however, a recording of the 911 calls associated with that incident. ADA Kellett never provided that recording to Attorney Pileggi because ADA Kellett?s office never obtained those materials from the Washington County Sheriff?s Office.
- Filler?s first trial began in January of 2009. His primary defense to the criminal charges was his assertion that the complaining witness, his wife Ligia, had fabricated the allegations in order to gain an advantage in a dispute regarding the custody of their children.
- Filler?s defense theory was supported by the fact that Ligia had instituted a divorce proceeding and had sought protective orders on behalf of herself and her children soon after she made her allegations of Filler?s sexual assault(s).
- At all times relevant, ADA Kellett was aware of the Fillers? civil court proceedings, and of Filler?s theory of criminal defense.
- Because Ligia was the State?s sole witness claiming any direct information about Filler?s alleged criminal conduct, her credibility was a key issue in the trial.
- During the trial, the court (Cuddy, J.) sustained ADA Kellett?s objection to Attorney Pileggi?s attempts to cross-examine Ligia about her various steps in court to gain custody of the Fillers? two minor sons. As a result of the trial court?s ruling on ADA Kellett's objection, Attorney Pileggi was not allowed to introduce evidence of the lawsuits to impeach Ligia?s credibility or to suggest to the jury that she had fabricated the sexual assault allegations against Filler to gain advantage in a parental rights dispute.
- After having successfully objected to the admission of any evidence concerning the Fillers? divorce or custody proceedings, ADA Kellett made improper and prejudicial comments in her rebuttal closing argument to the jury. At various stages of her rebuttal closing argument to the jury she said:
I would ask you where the evidence is to back up his (Attorney Pileggi?s) statement that he stated in both his opening and his closing that this is a marriage that was ending, this is a child custody, this was a first step in a child custody fight. Where is one piece of evidence about that?
The suggestion that Ligia Filler has made this all up just for the purpose of getting ahead in the child custody, where is the evidence of that?
Custody dispute? Where is that?
- Attorney Pileggi immediately moved for a mistrial at the conclusion of ADA Kellett?s rebuttal argument. The trial court denied the motion.
- Filler elected to not testify, and the trial court?s jury instructions specifically directed the jury to draw no inferences at all about that decision.
- During her initial closing argument, ADA Kellett told the jury that, ?there has been no evidence presented to you as the jury that would suggest that a sexual act hadn't occurred on those dates.? Attorney Pileggi moved for a mistrial at the conclusion of ADA Kellett?s closing argument, explaining that she had shifted the burden of proof to the defense. The trial court denied the motion for mistrial.
- Immediately upon starting her rebuttal argument ADA Kellett attempted to ameliorate her error by stating:
- On January 15, 2009, Filler was convicted by the jury of one count of Gross Sexual Assault (Class A) and two counts of Assault (Class D). He was acquitted on the remaining four felony counts.
- Filler?s attorney filed a motion for a new trial based upon his assertions that actions by ADA Kellett, including but not limited to those noted above, had prevented Filler from receiving a fair trial.
- On March 2, 2009, the trial court granted Filler a new trial based on its determination that ADA Kellett?s rebuttal closing argument had been improper and resulted in an unfair trial.
- ADA Kellett sought and received approval from the Office of the Attorney General to appeal the trial court?s decision to the Maine Supreme Judicial Court.
- In its September 9, 2010, decision, the Maine Supreme Judicial Court (sitting as the Law Court) ruled that ADA Kellett?s statements in her rebuttal closing argument created a high likelihood that Filler was unfairly prejudiced. The Court found that the trial court had correctly concluded that the interests of justice required a new trial, and thereby affirmed the trial court?s decision granting Filler a new trial on the three counts that had resulted in guilty verdicts. (See State v. Filler, 2010 ME 90, ?? 21-22, 3 A.3d 365).5
- In June of 2009, months after the conclusion of his jury trial (while his criminal appeal was pending before the Maine Law Court), Filler personally requested the reports of the April 11, 2007, incident directly from the Ellsworth police Department.
- In response to that request, Filler received the complete investigative file from Ellsworth Police Chief John DeLeo containing written witness statements, including a potentially exculpatory written statement from Ligia Filler. These are the same records that ADA Kellett failed to provide to Attorney Pileggi at any time before trial despite the court?s order of June 3, 2008, and Attorney Pileggi?s earlier specific discovery request letter of September 6, 2007.
- In May of 2009, Filler personally requested the April 24, 2007, 911 recording and other records from the Washington County Regional Communications Center. On May 14, 2009, he was provided with a copy of the 911 recording. That recording had also never been provided by ADA Kellett to Attorney Pileggi.
- On December 28, 2010, Filler filed a grievance complaint with the Board of Overseers of the Bar against ADA Kellett alleging prosecutorial misconduct in the course of her prosecution of various serious criminal charges against him.
- On September 11, 2011, a Panel of the Grievance Commission conducted a review of Filler?s complaint and Bar Counsel?s investigation thereof. As a result of that review, that Panel found probable cause to believe ADA Kellett had committed misconduct serious enough that public discipline should be issued after hearing, and directed Bar Counsel to file formal disciplinary proceedings against her under M. Bar. R. 7.1(e).
- On October 22 and 23, 2012, a different Panel of the Grievance Commission conducted a disciplinary proceeding open to the public under M. Bar. R. 7.1(e)(2). From that hearing, the Panel specifically found that ADA Kellett had committed violations of several provisions of the then-applicable Maine Code of Professional Responsibility.
- The Panel further found probable cause for a disciplinary sanction of suspension to be issued and thereby directed Bar Counsel to commence a de novo attorney disciplinary action before the Court pursuant to M. Bar R. 7 .2(b).
- At the hearing held on July 15, 2013, ADA Kellett agreed and admitted that her conduct in the Filler criminal prosecution was in violation of the following then applicable Maine Bar Rules: 3.1(a); 3.2(f)(4); 3.6(a); 3.7(e)(1)(i); and 3.7(i)(2).
- ADA Kellett admitted that, in her closing arguments, she referred to the lack of evidence about Ligia?s attempts to best Filler in the context of their disputes over child custody issues, after asking for and receiving an order from the trial court that prevented Filler from presenting any evidence on those issues. She also admits that she made statements that could have been understood by the jury to suggest that Filler had some burden of disproving the State?s case. ADA Kellett acknowledges that her arguments were improper.
- She also admitted that, despite her obligations as a prosecutor, and despite a court order, she failed to provide required discovery to Filler and his attorney during the seventeen months after the indictment but before trial began.
- ADA Kellett has now acknowledged that she committed multiple errors in the way she handled Filler?s trial:
- ADA Kellett has also admitted that she violated the discovery obligations of a prosecutor under M.R. Crim. P. 16, Bar Rule 3.7(i)(2) and the Superior Court?s June 3, 2008, discovery order. ADA Kellett acknowledges that she failed to act with reasonable diligence to provide both automatic and requested discovery in the form of a written statement by the complaining witness, a recording of a 911 call made by the complaining witness, and a recording made at the time of an encounter between the complaining witness and a law enforcement agency. Although ADA Kellett did not intentionally attempt to violate the then-existing Bar Rules or the rights of defendant Filler, she admits that her actions did violate his rights and did constitute violations of then-applicable Maine Bar Rules 3.1(a); 3.2(f)(4); and 3.7(i)(2).
- ADA Kellett has appeared before this Court and acknowledged her errors in judgment and her failure to comply with her responsibilities as a prosecutor. She has accepted responsibility for her actions, and expressed her contrition for her misconduct.
- Bar Counsel has confirmed to the Court that ADA Kellett has no prior disciplinary or other sanction record on file with the Board of Overseers of the Bar.
- In the three and one-half years since the conclusion of ADA Kellett?s involvement with the Filler prosecution, both ADA Kellett and her office have taken steps to ensure that such misconduct will not recur. She has attended the Maine Prosecutors Association presentation on the duty of the prosecution to supply exculpatory and impeachment evidence to the defense as set forth in cases such as Brady v. Maryland 373 U. S. 83 (1963) and Giglio v. United States 405 U. S. 150 (1972). She has re-read Justice Robert Clifford?s article on Identifying and Preventing Improper Prosecutorial Comment in Closing Argument 51 Me. L. Rev. 241 (1991) and other literature on that topic and has also discussed proper closing argument with other prosecutors and her supervisor. She routinely reads new case law bearing on her duties as a prosecutor including cases analyzing discovery and closing argument issues.
- ADA Kellett?s office has stopped using the discovery form it used at the time of the Filler prosecution that directed defense attorneys to request materials directly from law enforcement agencies when they sought discovery. Office staff have been instructed that in complying with discovery requested by the defense they are to forward the text of the actual request to the appropriate person at the involved law enforcement agency so that the officer knows precisely what has been requested rather than simply making an oral request describing the materials.
- ADA Kellett now routinely reviews police officer?s case files with the involved officer(s) to ensure that all materials required by the discovery rules are supplied to the defense. She also obtains written confirmation from officers who inform her that certain materials requested do not exist. She has adopted a policy of using written communications with defense counsel to document discussions regarding discovery, especially in those instances when counsel has informed her that certain materials previously requested are no longer sought by the defense. Additionally, she communicates directly with defense counsel to ensure that they have received the materials they requested in discovery and have received those items that the Criminal Rules require be made automatically available.
MARY N. KELLETT, ESQ. is hereby suspended from the practice of law in the State of Maine for a period of THIRTY DAYS;
The actual THIRTY DAY period of suspension is hereby suspended for a period of not less than SIX MONTHS, nor more than ONE YEAR on condition that ADA Kellett completes SIX HOURS of continuing legal education (CLE). At least one hour of this education must concern prosecutorial ethical or professional responsibility issues, and the remaining hours must concern opening statements, closing arguments, and discovery. All of the hours shall be pre-approved by Bar Counsel. These hours shall be in addition to the annual CLE credit hours required by Maine Bar Rule 12(a)(1). Any cost associated with these additional CLE credit hours must be borne by ADA Kellett alone; and
Upon certification to the Court by Bar Counsel that ADA Kellett has completed the additional required CLE, the period of suspension, and underlying suspension from the practice of law, shall terminate without further order of the Court.
- The Board of Overseers of the Bar?s Petition for Suspension is granted;
- Effective retroactively to August 18, 2012 and pursuant to M. Bar R. 7.3(e)(2)(B), David Hunt is suspended from the practice of law in Maine. This suspension is based upon Hunt?s incapacitation and his violations of various provisions of the Maine Rules of Professional Conduct.
- Hunt?s suspension is for the term of three (3) years. However, eighteen (18) months of that suspension is itself suspended, provided Hunt does not otherwise violate the conditions of this Order or commit any new violations of the Maine Rules of Professional Conduct.
- The Court emphasizes that any work performed by Hunt during his suspension must not be the provision of legal services or the practice of law, despite his training and prior bar licensure. Moreover, Hunt must ensure that any firm (and firm clients) for whom he may work as a paralegal or in any other capacity is notified in advance of the restrictions on his services imposed by this Order, including that Hunt is not permitted to practice law or provide legal advice.
- Hunt must wait until eighteen (18) months from the effective date of his suspension (August 18, 2012) to seek reinstatement; and
- Prior to his reinstatement in Maine, Hunt must comply with the provisions outlined in M. Bar R. 7.3(j) as well as the below conditions.
- In that regard, Hunt is Ordered and further agrees to the following conditions for reinstatement, should that status be granted anytime after February 18, 2014:
- Upon the motion of Bar Counsel, the Court will schedule a hearing and consider whether to impose all or a portion of the suspended portion of Hunt?s suspension if: (1) the Board of Overseers receives any further grievance complaints against Hunt or otherwise has cause to believe that Hunt has violated any requirement of the Maine Rules of Professional Conduct; (2) if Hunt has a relapse as reported by Bar Counsel or any third-party; (3) if Hunt is admitted into any facility for substance abuse treatment; or (4) if Bar Counsel asserts that it has reasonable cause to believe that Hunt has violated any condition of this Order.
Secure the professional files, client property and client data of Mr. Otis.
Obtain access to Mr. Otis?s post office boxes to secure any law office or legal mail.
Inventory the open and closed client files.
Give priority attention to client matters which are open and time sensitive.
Notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
Attorney Winchell shall also prudently access and utilize Mr. Otis?s operating and IOLTA accounts to effect a formal wind down of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
The matter arises from a grievance complaint filed by Micah Herman of Kansas City, Missouri on August 30, 2011.
Micah Herman, Vanessa Herman (Mr. Herman's wife and a practicing attorney in Missouri), and Attorney Adams testified at the hearing.
Attorney Adams was admitted to the bar in 1994 and works as a solo practitioner in East Boothbay, Maine. He is also licensed to practice in Virginia, Maryland and the District of Columbia.
Attorney Adams served as trustee of the Nola P. Herman Trust from December 2000 until September 2009. The Settlor of the Trust was Mr. Herman's mother.
Mr. Herman was the primary beneficiary of the Trust
Pursuant to the terms of the Trust, the Trust was to terminate when Mr. Herman reached the age of thirty five (35).
Prior to September 26, 2009 (Mr. Herman's 35'h birthday) Attorney Adams resigned and appointed Micah Herman as successor trustee.
Attorney Adams turned over all but $10,000 to Mr. Herman. He retained $10,000 in a checking account to cover any future services and expenses related to the transfer of trustee responsibilities.
The Panel finds that Mr. Herman initially authorized Attorney Adams to reserve those funds for that purpose.
On October 30, 2009, Attorney Adams returned to Mr. Herman an additional $8,000.00, thereby reducing the remaining balance to $2,098.80. In the letter forwarding the check, Attorney Adams stated, "l am retaining the balance [of] $2,098.80 to cover any additional transition costs through the end of the year and will close the account and forward you any unused balance once the returns have been completed for 2009."
On April 1, 2010, Mrs. Vanessa Herman (Micah Herman's wife and a licensed Missouri attorney) contacted Attorney Adams. At that time, she inquired about the balance of the Trust bank account, the associated bank statements, other Trust related documents and the status of the unreturned Trust funds. She also authorized Attorney Adams to close the account after deducting fees and expenses from the account.
In response to the request from Attorney Herman, Attorney Adams stated, "I will close that account and distribute the remaining funds once I have been provided a final tax return for the Trust that will document that the Trust is no longer in my control and that all federal and state filing for 2009 have been completed."
At the grievance hearing Attorney Adams testified that he requested a copy of the tax returns or some other proof that they had been filed because he had been trustee of the Trust for most of 2009 and was concerned that his name was still on the paperwork on file with the IRS.
Attorney Adams eventually returned the balance of the account, minus his fees and expenses, on October 30, 2012.
Attorney Adams charged Mr. Herman $1908.21 for his services and expenses. Attorney Adams sent Mr. Herman a check for $673.21 representing the balance due after deducting his fees.
Attorney Adams charged Mr. Herman $260 to prepare a release that Mr. Herman did not request execute or authorize.
- In its Disciplinary Petition, the Board alleges violation M.R. Prof. Conduct 1.5(a); 1.15(d)(f) and 8.4(a)(c)(d).
- Rule 1.5 requires that the attorney not charge or collect an unreasonable fee. With one exception, the Panel finds that Attorney Adams did not charge or collect an unreasonable fee. Attorney Adams charged $125.00 per hour, which is the same rate that he charged when he executed his fee arrangement with the Settlor of the Trust in March of 2000. Mr. and Mrs. Herman authorized Attorney Adams to charge for services in connection with transitioning from being trustee and finalizing the accounting during his tenure as Trustee. The Panel finds, however, that the $260 Attorney Adams charged for preparing the release was an unreasonable fee because the work was not specifically authorized and was not reasonably within the scope of services that had been authorized. The remaining services and charges do not constitute an unreasonable fee.
- Rule 1.15(d) requires a lawyer to "promptly deliver to the client or third party" any funds that the client or third party is "entitled to receive." According to Attorney Adams, he did not know what funds Mr. Herman was entitled to receive because he was not sure whether he would be required to perform additional services and expend costs in connection with the transfer of Trust responsibilities and the closing of the Trust.
- The Panel credits Attorney Adams' testimony that it is customary to provide information, assistance and services in connection with transferring Trust responsibilities and closing a Trust. The Panel also finds, however, that at some point in the continuum between resigning as Trustee and refunding the balance of the monies to Mr. Herman, it should have become apparent to Attorney Adams that this was not a typical situation and that he was not going to be required to perform any additional work. At that point, Attorney Adams should have promptly refunded the funds, minus his fees for services.
- Contrary to the requirement of Rule 1.15(d), the refund was not prompt. The delay in issuing a refund was due to a lapse in judgment by Attorney Adams who held the subjective belief that Mr. Herman would not file the 2009 tax returns. Attorney Adams appears to have formed this belief based on various disagreements between Attorney Adams and Mr. Herman concerning financial issues during Attorney Adams' tenure as trustee. While this history may provide an explanation for Attorney Adams' beliefs, it does not excuse his failure to promptly refund the funds that had been withheld. Attorney Adams was no longer the trustee and it was improper for him to condition return of the funds on proof of the tax return filing.
- Similarly, while it is regrettable that Mr. and Mrs. Herman did not provide consistent and clear communication to Attorney Adams, and chose not to resolve the dispute by simply providing Attorney Adams with the confirmation he requested,1 that did not relieve Attorney Adams of his responsibility to promptly refund the retained monies once it became clear that he would be doing no further work and that retaining the funds was no longer authorized.
- For these reasons, the Panel concludes that Attorney Adams' conduct violated Rule 1.5(a) and 1.15(d).
- The Panel finds that Attorney Adams did not knowingly violate the rules, engage in conduct involving dishonesty, fraud, deceit or misrepresentation or that was prejudicial to the administration of justice and, therefore, did not violate Rule 8.4.
- The Panel finds that Attorney Adams' violation of the rules was due to a lapse in judgment, influenced to some extent by his long and frequently stormy relationship with Mr. Herman.
- Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge their professional duties properly. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances.
- The Panel finds that the misconduct was minor; that there is little or no injury to a client, the public, the legal system, or the profession; that there is little likelihood of repetition by Attorney Adams; and that there were mitigating circumstances based on the historic relationship of Attorney Adams and Mr. Herman. Accordingly, the panel concludes that the appropriate disposition of this case is the issuance of a Dismissal with a Warning to Scott Adams, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B)(a).
Attorney Hoffman is suspended from the practice of law for two years, with all of that suspension being suspended from implementation at this time.
Hoffman shall continue to comply with all terms and conditions of his MAP contract and shall continue to be under a MAP contract for the next five calendar years. He shall be subject to such random mental health, medicinal, drug(s) or related testing as deemed appropriate by the MAP Director.
Attorney Hoffman shall submit his practice to monitoring for two years or longer if the Court or the Monitor deems it necessary. The Court Appointed Monitor is Attorney Margot Joly of Wilton, Maine. The terms and requirements of that Monitor?s service are set forth in a separate monitoring agreement that has been agreed to, and is to be executed and signed by Hoffman. The signed monitoring agreement, consistent with the draft that the Court has reviewed, but with a two year monitoring period, shall be filed with the Court by October 10, 2013.
If Attorney Hoffman commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose the suspended portion of this sanction.
Within the first six (6) months of the suspended suspension period, Hoffman shall attend in person and complete a seminar or similar educational symposium and/or course consisting of at least four (4) continuing legal education credit hours that has been pre-approved by Bar Counsel which focuses on the stresses of a law practice and how to manage all such stresses reasonably. Hoffman shall submit proof of completion of the course to the Board within one month of the date of completion of the course.
If, after the effective date of this Order, a grievance complaint against Hoffman is received by Bar Counsel or Bar Counsel becomes aware of apparent misconduct by Hoffman that would normally warrant the initiation of an investigation under M. Bar R. 7.1(b), Bar Counsel may elect to file a new disciplinary proceeding directly before the Court pursuant to Bar Rule 7.2(b) without reference to the Grievance Commission pursuant to M. Bar R. 7.1(d)(e).
On October 9, 2012, upon motion of the petitioner, the Board of Overseers of the Bar, the Court appointed David R. Weiss, Esq., as Receiver of the law practice of Carolyn M. Asquith for the purpose of securing or attempting to secure professional files, client property, and client funds; inventorying the open and closed client files; notifying clients of the Receiver?s appointment; and providing opportunity for clients to make decisions about the status of their respective legal matters and representation.
David R. Weiss, Receiver of the law practice of suspended attorney Carolyn M. Asquith, acting in good faith, has exercised due diligence and taken all reasonable steps to fulfill his obligations as Receiver of the law practice of Carolyn M. Asquith. He has returned or attempted to return all professional files. He has exercised due diligence to determine whether the suspended attorney Carolyn M. Asquith?s law practice possessed or controlled client property and client funds at the time of, or shortly before, the undersigned was appointed Receiver, and, acting in good faith, has concluded that, to the best of his knowledge, no such property or funds existed.
Receiver Weiss has reviewed the law practice of Carolyn M. Asquith?s clients? files, to the extent that those files were actually provided to him by suspended attorney Carolyn M. Asquith. An inventory of the client files is attached hereto as Exhibit A. When Receiver Weiss discovered that some of Carolyn M. Asquith?s clients? files were not provided to him as required by Justice Levy?s Order for Appointment of Receiver, he took reasonable steps to recover undelivered files. The fact that suspended attorney Carolyn M. Asquith refused or otherwise failed to deliver some of her clients? files is beyond the control of Receiver Weiss. Moreover, Receiver Weiss took appropriate steps to notify former clients of the law practice of Carolyn M. Asquith whose files were not delivered to Receiver Weiss of this development.
Receiver Weiss has distributed files to a number of clients and/or former clients of the law practice of Carolyn M. Asquith. Receiver Weiss has returned, whenever possible, all active client files to the respective clients. A list of the files that have been returned to the law practice of Carolyn M. Asquith?s former clients is attached hereto as Exhibit B.
A number of the law practice of Carolyn M. Asquith?s clients have not picked up their files, despite Receiver Weiss? good faith effort to notify them that they should do so. Receiver Weiss now has in his possession 190 apparently closed files. Also in possession of Receiver Weiss are eight apparently non-GAL Parent Coordinating active client files wherein Receiver Weiss has written the respective clients and has received no instruction regarding the storage or return of the files. A list of the unclaimed, open and closed files is attached hereto as Exhibit C.
Some disposition needs to be made for the remaining active and closed files of suspended attorney Carolyn Asquith?s former clients. The Board of Overseers of the Bar is the most appropriate caretaker of the remaining files. The Board of Overseers of the Bar is willing and able to execute these duties and is familiar with the proper method for distribution, scanning for digital storage and confidential destruction of those files.
Receiver Weiss has submitted a summary of his time and expense incurred in serving as Receiver of the law practice of Carolyn Asquith. The summary of his time and expenses is attached hereto as Exhibit D. In carrying out his duties as Receiver, Receiver Weiss and his associate lawyer, Kevin J. Crosman, have provided services in the total amount of $8,137.50 and incurred expenses in the total amount of $318.43. Based on the foregoing FINDINGS OF FACT, the Court makes the following conclusions of law:
David R. Weiss, Receiver of the law practice of suspended attorney Carolyn M. Asquith, has taken all reasonable steps to discharge his obligations as Receiver of the law practice of suspended attorney Carolyn M. Asquith, to return all client files, and to determine, in good faith, that suspended attorney Carolyn M. Asquith did not posses or control any funds in her operating or trust accounts in need of disbursement.
Receiver Weiss is entitled to reimbursement of expenses incurred while serving as Receiver of the law practice of suspended attorney of Carolyn M. Asquith in the amount of $318.43. His Attorney Fees, in the amount of $8,137.50, were provided on a pro bono basis.
The Board of Overseers of the Bar shall be authorized to maintain in storage at its office located at 97 Winthrop Street, Augusta, Maine those files that have not yet been retrieved by the clients of suspended attorney Carolyn M. Asquith, pursuant to its established practices of distributing, archiving, and where and when possible, confidentially destroying those files.
David R. Weiss is discharged as Receiver of the law practice of suspended attorney Carolyn M. Asquith.
The Board of Overseers of the Bar is hereby authorized to maintain in storage at 97 Winthrop Street, Augusta, Maine those files that have not been retrieved by the clients of suspended attorney Carolyn M. Asquith from Receiver Weiss. The tending of those files will be accomplished in accordance with the Board of Overseers? established policies and practices for distribution, scanning for digital storage and appropriate confidential destruction of such files.
Receiver Weiss is entitled reimbursement for expenses incurred by him while serving in as Receiver to the law practice of suspended attorney Carolyn M. Asquith in the amount of $318.43. Upon presentation of this Order, said expenses are to be paid by the Board of Overseers of the Bar to Receiver Weiss.
secure the professional files, client property and client data of Mr. Poe
obtain access to Mr. Poe's post office box (if one exists) to secure any law office or legal mail
inventory the open and closed client files
give priority attention to client matters which are open and time sensitive (if any exist)
notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
Attorneys Logan and Soule shall also prudently access and utilize Mr. Poe's operating and/or IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
The Board of Overseers of the Bar?s Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Charles Perrault is suspended from the practice of law in Maine for three months, with the execution of that suspension stayed for a period of one year from the date of entry of this Order. The suspended suspension is due to his violations of the Massachusetts Rules of Professional Conduct, which by analogy to the Maine Rules of Professional Conduct would include 1.5(a) and 5.1(a)(b).
After the stayed execution, Mr. Perrault may file an affidavit of compliance with the terms outlined by the Massachusetts Supreme Court?s August 2013 Order. Ultimately, the Massachusetts Court may decide not to suspend Mr. Perrault, and he is to notify this Court if such an Order results from his subsequent compliance and proper filings in the Massachusetts Supreme Court.
If Mr. Perrault does serve any term of actual suspension, then within thirty days of the effective date of that suspension, Mr. Perrault shall file with the Executive Clerk (copied to the Board) a notification affidavit demonstrating his compliance with M. Bar R. 7.3(i)(1)(B).
The Board of Overseers of the Bar?s Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Bruce Michael Cormier is suspended from the practice of law in Maine for two years. That suspension is due to his violations of the Massachusetts Rules of Professional Conduct which by analogy to the Maine Rules of Professional Conduct would include 1.1; 1.3; 1.4(a); 1.5(a); 1.15; and 8.4(a)(c)(d).
Within thirty days of the effective date of this Order, Mr. Cormier shall file with the Executive Clerk (copied to the Board) a notification affidavit demonstrating his compliance with M. Bar R. 7.3(i)(1)(B).
Secure the office keys, professional files, client funds and file property of the Cote law office;
Obtain signatory authority over all Cote law office bank accounts (IOLTA and operating/office accounts).
Obtain access to Mr. Cote?s computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail.
Inventory the open and closed client files.
Give priority attention to client matters which are open and time sensitive. Notify all courts that Andrucki & Associates is serving as Mr. Cote?s Proxy until further order of this Court.
Notify clients or former clients that Andrucki & Associates is serving as Proxy to the Cote law practice and provide opportunity for clients to consult with the Proxy or retrieve their property.
The Proxy shall access and utilize Mr. Cote?s operating and IOLTA accounts to prudently and appropriately manage the practice. The Proxy may pay expenses, as they deem appropriate given available funds or anticipated receivables to the firm. The Proxy may also hire temporary office staff and take other action as necessary and appropriate to manage the Cote law practice.
- secure the professional files, client property and client data of Attorney Concannon;
- immediately notify all financial institutions of the Receivership;
- inventory the closed client files;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property.
- As a service to the bar, the Board has agreed to serve as the Limited Receiver on a pro bono basis. The Board shall submit a quarterly written report to the Court containing a record of time worked and disbursements made in this matter. Attorney Concannon shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Concannon, the Board may be an alternate payment source for those disbursements.
- The Board shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
- The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
- William L. Dawson, Jr. is an attorney admitted to practice in the State of Maine.
- On October 11, 2013, the Board of Overseers of the Bar initiated a Grievance Complaint against Attorney Dawson.
- The Grievance Complaint was docketed as GCF #13 -307, and the matter is currently pending investigation by Bar Counsel and review by a Panel of the Grievance Commission under M. Bar R. 7.1(d).
- On November 21, 2013, the Board filed its Petition for Temporary Suspension of Attorney Dawson in the above-docketed matter.
- Pending the outcome of GCF #13 ? 307, the following conditions will be immediately imposed upon Attorney Dawson?s license to practice law in the State of Maine:
- Attorney Dawson has provided an affidavit in which he has sworn that his client trust account contains only the following items:
During the period of suspension, Mr. Otis may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients. The Court emphasizes that any future work performed by Otis must not be attorney legal services, despite his training and prior bar licensure. In short, he may not practice law or appear as though he is practicing law in any manner.
Mr. Otis must ensure that any firm (and firm clients) for whom he may work as a paralegal or legal assistant is advised of the limitations of his services, including the fact that Otis is no longer practicing law or permitted to provide legal advice to consumers and clients of the firm.
Mr. Otis must wait until March 2017 to seek Reinstatement to the Maine bar.
Two (2) years prior to any such Petition for Reinstatement, Otis must have engaged in MAP services (with a contract) pursuant to the terms of this Order and under the supervision of the MAP Director. If required under that contract to engage in therapeutic services, Mr. Otis shall do so and he must sign a release to permit MAP to verify his attendance and engagement in therapy.
Also prior to any reinstatement, Mr. Otis must have reimbursed all clients sums due to them as determined by the Fee Arbitration Commission or the Receiver, Attorney Winchell. Additionally, Mr. Otis shall reimburse the Lawyer?s Fund for Client Protection for all claims paid by the Fund.
Prior to or concurrent with any Reinstatement, Mr. Otis shall obtain and continue to maintain malpractice insurance.
Effective upon any Reinstatement to the Maine bar, Mr. Otis shall submit his practice to monitoring for two years or longer if the Court orders it. The Court-Appointed Monitor shall be either agreed to by the parties or if not, selected by Bar Counsel and approved by the Court; additionally, the Monitor shall conduct and Mr. Otis shall cooperate with any auditing of his accounts as directed by the Monitor.
Additionally, once reinstated, Mr. Otis shall undertake at least six (6) hours of approved live continuing legal education focused on law practice management. He shall have completed that CLE within the first year of his reinstatement.
Mr. Otis shall employ at least one support staff person familiar and competent in working within the requirements of a law office practice, if he returns to the bar (or later becomes) a solo practitioner.
Mr. Otis shall maintain current annual registration and CLE hours as required by the Maine Bar Rules and regulated by the Board of Overseers of the Bar.
Prior to any Petition for Reinstatement, Mr. Otis shall reimburse Winchell Law $ 5,978.56 [Labor-$5,451.50 Disbursements-$527.06] toward costs associated with the wind down and closure of his practice. The Court notes that Attorney Winchell previously filed a detailed invoice for her services and costs.
Prior to any Petition for Reinstatement, Mr. Otis shall reimburse the Board $3,200.00 toward costs associated with its investigation and prosecution of him in this matter (as documented by its filing with the Court).
If contacted by the Board or by Bar Counsel, Mr. Otis shall timely respond and provide any information related to his intended Petition for Reinstatement, or thereafter, his practice of law in Maine.
In the event a grievance complaint is received by Bar Counsel after the date of this Order, Bar Counsel may elect to file a new disciplinary matter directly before the Court under Bar Rule 7.2(b) without involving the Grievance Commission under M. Bar R. 7.1(d)(e).
The Board of Overseers of the Bar?s Petition for Reciprocal Discipline is hereby granted in all respects;
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Kirk Y. Griffin is suspended from the practice of law in Maine. That suspension relates to Griffin?s violations of those portions of Maine?s Rules of Professional Conduct that are analogous to the violations found by the Massachusetts Supreme Judicial Court.
By analogy, the Maine Rule violations would include M. R. Prof. Conduct 1.15; 1.16(d); 8.1(b) and 8.4(a)(c)(d).
Kirk Y. Griffin?s suspension remains in effect until further Order of this Court.
Within thirty (30) days of the entry of this order, Kirk Y. Griffin shall file with the Clerk and with the Board of Overseers an affidavit attesting to his compliance with the provisions of Maine Bar Rule 7.3(i)(1)(c).
- Mr. Giese shall serve his suspension from January 22 until March 19, 2014;
- On or before January 22, 2014, Mr. Giese shall provide notice of his suspension to all clients, courts and opposing counsel, consistent with M. Bar R. 7.3(i)(1). His outgoing office messages shall provide a similar disclosure to clients and or prospective clients.
- During the period of suspension, Mr. Giese may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients. In short, he may not practice law or appear as though he is practicing law in any manner.
- Additionally, Mr. Giese?s law office shall not be open for any kind of business. While the law office is closed during the period of suspension, another Maine attorney or a temporary staff person (approved by Bar Counsel) is permitted to deal with the administrative functions of the Giese Law office, including reviewing mail, returning client files, paying bills, etc. The Court notes that Mr. Giese has enlisted the help of Attorney Paul Letourneau to cover uncontested client matters during the period of suspension.
- Mr. Giese shall not be present in the law office for any of the suspension time and his ?suspension notification? letter, his answering service and his email account shall inform clients and courts of that fact.
- Effective March 19, 2014, Mr. Giese shall submit his practice to monitoring for one year or longer if the Court or Monitor deems it necessary. The Court-Appointed Monitor is Attorney Scott Houde of Biddeford, ME;
- Mr. Giese shall comply with all directives and recommendations made by Attorney Houde. Attorney Houde shall notify the Court and Bar Counsel if Mr. Giese fails to comply with the conditions of monitoring;
- Three weeks prior to his return to practice, Mr. Giese shall make contact with MAP and if recommended by the Director, William Nugent, Esq., contract with MAP for appropriate services or supports;
- Attorney Nugent shall notify the Court and Bar Counsel if Mr. Giese fails to make contact or otherwise follow the MAP recommendations;
- Additionally, by June 16, 2014 Mr. Giese shall undertake six (6) hours of approved live continuing legal education focused on law practice management; he shall provide evidence of that legal education to Bar Counsel and to the Court.
- If Mr. Giese commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose an additional period of suspension upon Mr. Giese; and
- In the event a grievance complaint is received by Bar Counsel after January 1, 2014, Bar Counsel may elect to file a new disciplinary matter directly before the Court pursuant to the terms of this Order and of Maine Bar Rule 7.2(b).
- Any costs or fees associated with Attorney Houde?s monitoring shall be borne by Attorney Giese.
- Attorney Giese will meet with Attorney Houde at Attorney Houde?s calling and convenience, on a bi-weekly basis, unless Attorney Houde subsequently determines that more or less frequent meetings are appropriate.
- Attorney Houde shall have the right to withdraw and terminate his services at any time for any reason he deems necessary. If he intends to do so, he shall notify Bar Counsel and Attorney Giese of his withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
- If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, Attorney Houde may adopt any one of the following courses with the proposed result:
- Attorney Houde shall have the right to contact clerks of court, judges, or opposing counsel to monitor Attorney Giese?s compliance with his professional obligations.
- Likewise, if Attorney Houde determines that Attorney Giese should refrain from accepting complex cases or otherwise expanding his practice, Attorney Houde shall inform Attorney Giese of that fact. Attorney Giese shall then follow Attorney Houde?s directive to refrain or limit his acceptance of such cases.
- Attorney Houde shall initiate no contact with any of Attorney Giese? clients. Attorney Houde?s only communications in the performance of his monitoring duties shall be with Attorney Giese or other persons contemplated by this decision. However, if any clients of Attorney Giese contact Attorney Houde with concerns about Attorney Giese, then they should be referred to Bar Counsel?s office.
- Attorney Houde?s participation in the disposition of Attorney Giese? disciplinary case and monitoring of Attorney Giese? practice shall be deemed not to create an attorney-client relationship between Attorney Giese and Attorney Houde or between Attorney Houde and Attorney Giese?s clients. Specifically, Attorney Houde shall be deemed not to represent Attorney Giese or any of Attorney Giese?s clients or to be employed by them in any capacity and Attorney Houde shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to Attorney Houde?s monitoring of Attorney Giese?s practice, and Attorney Houde shall be immune from any civil liability (including without limitation, any liability for defamation) to Attorney Giese or any of Attorney Giese?s clients.
- Attorney Houde shall have the authority to review and examine any of Attorney Giese?s files, except those in which Attorney Houde might have adverse interests under paragraph 5. In that event, Attorney Houde shall notify Bar Counsel who may then develop an alternative means of file review.
- Attorney Giese shall prepare and present to Attorney Houde two weeks in advance of their first meeting a list of all his current clients, showing each pending client?s matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Attorney Giese shall prepare and present that information to Attorney Houde at least three days in advance of the meeting.
- Attorney Houde will, as soon as practicable, have Attorney Giese establish a method of objectively identifying delinquent client matters and have him institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- Attorney Houde shall file a confidential report with the Court every three months or sooner if the Court deems it necessary. The Report shall be copied to Attorney Giese and Bar Counsel and it shall cover at least the following subjects:
- Attorney Houde shall have the duty to report to the Court and Bar Counsel any apparent or actual professional misconduct by Attorney Giese of which Attorney Houde becomes aware. Likewise, Attorney Houde shall report any lack of cooperation by Attorney Giese with the terms of this Order.
- intentionally accesses without authorization a facility through which an electronic communication service is provided; or
- intentionally exceeds an authorization to access that facility;
Charles T. Ferris is suspended from the practice of law for a period of six (6) months, beginning on March 10, 2014 and ending on September 10, 2014.
On or before March 10, 2014 Charles T. Ferris shall comply with the notice requirements stated in M. Bar R. 7.3(i)(1).
The Board of Overseers of the Bar?s Petition for Reciprocal Discipline is hereby granted in all respects; and
Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Julie Court Molloy is now reprimanded in Maine for her violations of those portions of Maine?s Rules of Professional Conduct that are analogous to her violations of Massachusetts? Rules of Professional Conduct as stated in the Massachusetts Supreme Judicial Court?s Order of Reprimand dated August 28, 2013, i.e. M.R. Prof. Conduct 1.15 and 8.4.
- secure the professional files, client property and client data of Attorney Gardiner;
- inventory the client files;
- notify former clients of the Receivership and provide an opportunity for those clients to retrieve their property;
- store or dispose of any remaining files pursuant to M. R. Prof. Conduct 1.15(b)(2)(iii).
Beginning March 1, 2014, the Receivers shall wind down and effect the closure of Mr. Cote?s law office. To that end, the Receivers shall cease any payments for office expenses/equipment, including copiers, mail postage meters and temporary staff. Arrangements for return of leased equipment shall be made as soon as practicably possible.
With the assistance of the Board of Overseers, the Receivers shall run an advertisement in the local newspaper notifying clients that the law office is closing. That ad shall provide contact information for retrieval of client property.
Mr. Cote has proposed a plan to reimburse all clients for the losses incurred as a result of his disability-related misconduct. In that regard, Mr. Cote accepts responsibility for creating a situation which generated such widespread loss to his clients, unfair treatment to other litigants and wasted time/resources of the judiciary and his colleagues of the bar.
The Court appreciates Mr. Cote?s proposed plan for going forward and will schedule this matter for an updated status conference in September 2014.
secure the professional files, client property and client data of Mr. Giese;
inventory the open and closed client files;
notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property.
As a service to the bar, the Board has agreed to serve as the Limited Receiver on a pro bono basis. The Board shall submit a quarterly written report to the Court containing a record of time worked and disbursements made in this matter. Mr. Giese shall be the first choice for source of payment for those disbursements. If insufficient funds are available from Mr. Giese, the Board may be an alternate payment source for those disbursements.
The Board shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
failing to comply with the annual registration requirement of M. Bar Rule 6 (a); and
failing to meet the continuing legal education credit hours required by M. Bar Rule 12 (a).
- Did the attorney violate a duty owed to a client, to the public, to the legal system, or to the profession?
In failing to properly cease practicing law in Maine Mr. Wheeler violated a duty owed to his clients, the legal profession and the legal system.
- Did Mr. Wheeler act intentionally, knowingly, or negligently?
Mr. Wheeler has yet to file with the Board the required affidavit. He has acted intentionally, knowingly and negligently.
- Did Mr. Wheeler's violation of Board Rules cause actual or potential injury?
The Panel is not aware of whether Mr. Wheeler's Rules violations caused injury. Certainly there is the possibility of injury to his clients.
- Were there the existence of any aggravating or mitigating factors?
In his testimony Mr. Wheeler did not describe significant mitigating factors.
Secure the professional files, client funds and file property of the Limberis law office;
Obtain signatory authority over all Limberis law office bank accounts (IOLTA and operating/office accounts);
Obtain access to Attorney Limberis? computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail;
Inventory the open and closed client files;
Give priority attention to client matters which are open and time sensitive. Notify all courts that Attorney Dorr is serving as Attorney Limberis?s Proxy until further order of this Court;
Notify clients or former clients that Attorney Dorr is serving as Proxy to the Limberis law practice and provide opportunity for clients to consult with the Proxy or retrieve their property;
The Proxy shall access and utilize Attorney Limberis? operating and IOLTA accounts to prudently and appropriately manage the practice. The Proxy may pay expenses, as he deems appropriate given available funds or anticipated receivables to the firm. The Proxy may also hire temporary office staff and take other action as necessary and appropriate to manage the Limberis law practice;
- because the misconduct was minor in the context of the confusion and miscommunications between the parties and Mr. Lyman?s sincere belief that his client was entitled to the return of his funds because, to the best of his knowledge, the liabilities had not been released by June 15, 2013;
- because Mr. Lyman?s conduct was not the sole or even the predominant cause of Ms. Gray?s injuries and it was not the sole cause of the breakdown in trust between the attorneys; and
- because there is little likelihood of repetition in that Mr. Lyman acknowledged his mistakes in not scheduling a meeting of the parties to exchange documents before June 15, 2013, in that he is now more familiar with Rule 1.15(e) and in that he is less likely to face circumstances of an incomplete agreement again.
- On February 15, 2013 Camille Franck and David Blade filed individual grievance complaints against Attorney Hanson alleging misconduct during the course of his representation of Camille Franck in civil proceedings relating to a boundary dispute with Mr. Franck?s abutting landowners.
- On February 19, 2013 Mark J. Theriault filed an unrelated grievance complaint against Attorney Hanson alleging misconduct during his representation of him in a criminal proceeding.
- On June 25, 2013, a Panel of the Grievance Commission reviewed the complaints made by Camille Franck, David Blade and Mark Theriault, and the respective investigations relating thereto. Based upon that review, the Panel found probable cause to believe that Attorney Hanson had engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct in each of the above matters. Accordingly, in each grievance complaint against Attorney Hanson the Panel authorized and directed Bar Counsel to prepare and present a formal disciplinary Petition for a disciplinary proceeding before a different Panel of the Grievance Commission.
- A Grievance Commission hearing was then scheduled and set to occur regarding that Petition on November 13, 2013. On that date, a Stipulated Waiver of Grievance Commission Proceedings was executed by Assistant Bar Counsel Alan P. Kelley and Attorney Allan W. Hanson.
- The Stipulated Waiver was approved by the Court?s Order of December 3, 2013 for this disciplinary proceeding to be directly filed with the Court without any further proceedings occurring before the Grievance Commission, and an Information was filed with the Court pursuant to M. Bar R. 7 .2(b) on January 9, 2014
- Camille Franck owns real estate located in Limestone, Maine that abuts property used as an automobile junkyard or graveyard, known as Caldwell?s Auto Parts.
- Prior to Attorney Hanson?s involvement in Mr. Franck?s matter, there was an ongoing dispute between Mr. Franck and Caldwell regarding the location of the boundary between the properties as well as Caldwell?s usage of the property for an automobile graveyard/junkyard.
- In October of 2010, Mr. Franck accompanied and assisted by his friend, David Blade, met with Attorney Hanson at his office and hired him to initiate litigation by filing a court complaint against the Town of Limestone for its reissuance of Caldwell?s annual permit to operate the automobile graveyard/junkyard.
- On January 24, 2011 Mr. Blade and Mr. Franck wrote to Attorney Hanson stating their dissatisfaction with the lack of progress in Mr. Franck?s case against the Town, and asking that he immediately seek injunctive relief to terminate all junkyard activities by the abutting property owners until the case was ultimately resolved by the Court.
- After a delay of approximately six months, on April 19, 2011 Attorney Hanson filed a complaint in the Aroostook County Superior Court, CARSC-CV-2011-00043, against the Town of Limestone alleging that Caldwell?s automobile graveyard or junkyard permit had been improperly issued by the Town and requesting that the court suspend Caldwell?s permit ?pending a proper review of the application of a permit? by the Town of Limestone.
- On September 13, 2011, Mr. Franck and Mr. Blade again wrote to Attorney Hanson reminding him of their January 24th letter, and expressing their continued concern about the substantial delay in their suit against the Town of Limestone.
- Attorney Hanson took no further action on the case until he appeared at a pre-trial conference on August 31, 2012, where the court advised him that the complaint in the lawsuit was moot because the Town of Limestone had renewed Caldwell?s junkyard permit subsequent to the filing of the lawsuit.
- On December 13, 2012, more than two years after Camille Franck hired Attorney Hanson to file suit against the Town of Limestone, Attorney Hanson filed a voluntary dismissal of the complaint in CARSC-CV-2011-00043.
- Mr. Franck and Mr. Blade?s letter to Attorney Hanson on September 13, 2011, in addition to expressing their concern about the delay in the pending litigation against the Town of Limestone (CARSC-CV-2011-00043), also requested that he file a second lawsuit against the abutting property owners for related damages. Their request stated that they did, ??not have the time for this case to languish without resolution beyond 2012.?
- Between September 13, 2011 and August 14, 2012, Mr. Franck and Mr. Blade contacted Attorney Hanson, or his office, on eleven separate occasions to inquire about the status of the proposed action against the property abutters.
- On August 17, 2012, more than eleven months after Mr. Franck and Mr. Blade?s first request to file the lawsuit against the abutters, Attorney Hanson filed the complaint in the Camille Franck vs. Caldwell?s Auto Parts, LLC, CARSC-CV-2012-00114.
- Although Mr. Franck and Mr. Blade had requested that Randy Brooker be included in the lawsuit as a party defendant, the complaint filed by Attorney Hanson on August 17, 2012 failed to include him as a defendant.
- On about October 30, 2012, Mr. Blade called Attorney Hanson to inquire why he had not yet amended the complaint and added Randy Brooker as a co-defendant in CARSC-CV-2012-00114.
- On or about January 8, 2013, Mr. Franck told Attorney Hanson to amend the complaint and add Randy Brooker as a defendant, or he would get a new attorney and also sue Attorney Hanson.
- As of February 4, 2013, even though Attorney Hanson had filed the complaint nearly six months earlier, he still had not served Defendant Caldwell with a copy of the complaint, nor had he amended the original complaint to add and include Randy Brooker as a co-defendant as his client had requested.
- On or about February 15, 2013, Mr. Franck and Mr. Blade filed their complaints with the Board of Overseers in this matter.
- On or about February 21, 2013, Attorney Hanson dismissed CARSC-CV-2012-00114 without prejudice, and filed a third civil action, Camille Franck v. Scott Caldwell, Robbie Caldwell, and Randy Brooker, CARSC-CV-2013-0019.
- On or about February 26, 2013 Attorney Hanson was notified and provided with the Franck and Blade grievance complaints by Bar Counsel.
- On or about April 4, 2013 Attorney Hanson filed a Motion to Withdraw from his representation of Camille Franck in CARSC-CV-2013-0019, as a result of the grievance complaints filed against him by Camille Franck and David Blade.
- Between October of 2010 and his withdrawal in April of 2013, Attorney Hanson filed three lawsuits on behalf of his client, Camille Franck, and voluntarily dismissed two of them failing to provide competent representation, or to act with reasonable diligence and promptness in pursuing his client?s cases against the Town of Limestone and the abutting property owners.
- Between October of 2010 and his withdrawal in April of 2013, Attorney Hanson failed to reasonably consult with his client or to keep him reasonably informed of the status of his cases.
- Attorney Hanson was court-appointed on September 29, 2009 to represent Mark Theriault on a Class A charge of Unlawful Sexual Contact, allegedly committed against a female child under the age of 12.
- During the ensuing 16 months while that case was pending against Theriault, Attorney Hanson met with Theriault in his office no more than three times for periods of approximately one hour on each occasion.
- Attorney Hanson requested and obtained court approval to hire a private investigator; however, Attorney Hanson failed to hire an investigator or conduct any independent investigation of the serious allegations against his client, other than his own discussions with his client.
- Mr. Theriault suggested areas of investigation and defense theories that he wanted to pursue through investigation; however, Attorney Hanson failed to follow up on Mr. Theriault?s suggestions and requests, and did not pursue his client?s theory of defense.
- The trial of Mr. Theriault?s matter began on February 7, 2011 with opening statements at 9:25 a.m. Three witnesses, including the victim, appeared for the State, and the trial testimony concluded at 11:40 a.m. on that same date, after less than two hours of testimony.
- Although Mr. Theriault wanted to testify in his own defense, he followed Attorney Hanson?s advice not to testify, and the defense rested without presenting any witnesses or evidence on Mr. Theriault?s behalf.
- Attorney Hanson conducted brief cross-examinations of the State?s witnesses, and presented short opening and closing statements.
- After closing arguments, the jury deliberated for less than 25 minutes prior to returning its ?Guilty? verdict.
- Sentencing was held on February 9, 2011, less than 48 hours after the jury?s verdict.
- Attorney Hanson did not request a pre-sentence investigation, nor did he request sufficient time to prepare for sentencing. He did not prepare or present a written sentencing memorandum or analysis to the court.
- At the sentencing hearing, Attorney Hanson called Mr. Theriault?s mother as a witness, but she just briefly stated that Mr. Theriault did not commit the crime that he had been convicted of committing. In that regard, the court then informed her: ?Ma?am, what you are saying is not helpful.?
- Despite the court?s admonition, Attorney Hanson called Mr. Theriault?s daughter who told the court that her father, ??would never do such a thing??
- Attorney Hanson called no other witnesses at the sentencing proceeding, and when Mr. Theriault was called upon by the court for elocution, he only stated: ?Um, just been a long - - been a long week for me. I got a lot on my mind, and I?m just trying to accept what?s going on right now, sir.?
- Attorney Hanson failed to adequately prepare Mr. Theriault or his witnesses for the sentencing proceeding, or to present any evidence to the court in mitigation of the sentence to be imposed as a result of Mr. Theriault?s conviction of that Class A crime.
- The court sentenced Mr. Theriault to 16 years of incarceration with all but 8 years suspended and 6 years of probation.
- Attorney Hanson has acknowledged various errors on his part in relation to his representation of Camille Franck. He understands and agrees that by filing two ineffectual lawsuits that ultimately were voluntarily dismissed and failing to join essential parties that he failed to provide competent representation to his client. He understands and agrees that by not actively pursuing those lawsuits and allowing more than two years to pass without taking significant action to benefit his client, that he failed to act with reasonable diligence. He also understands and agrees that he failed to reasonably consult with Mr. Franck and to keep him apprised of the status of his cases. Although his actions were not intentional attempts to violate the Maine Rules of Professional Conduct they nevertheless constitute violations of Rules 1.1; 1.3; 1.4 and 8.4(a)(d).
- Attorney Hanson has acknowledged various errors on his part in relation to his representation of Mark Theriault. He understands and agrees that he did not utilize the court-approved private investigator to independently investigate the case or to pursue the areas of investigation suggested by his client prior to the trial. He understands and agrees that he did not spend sufficient time with his client to prepare him for the trial, or to make his decision regarding whether he would testify. He also understands and agrees that he did not request additional time to prepare his case for sentencing, or to prepare his client and the other witnesses for the sentencing proceeding. Attorney Hanson understands and agrees that by those failures, he failed to reasonably communicate with his client; to provide competent representation; or to act with reasonable diligence in his client?s defense. Although his actions were not intentional attempts to violate the Maine Rules of Professional Conduct they nevertheless constitute violations of Rules 1.1; 1.3; 1.4 and 8.4(a)(d).
- Attorney Hanson has been twice before publicly reprimanded:
- On December 7, 2004, a Panel of the Grievance Commission reprimanded Attorney Hanson for failure to diligently handle his clients? claims, conduct unworthy of an attorney, in violation of then Maine Bar Rule 3.1(a); misrepresentation and conduct prejudicial to the administration of justice in violation of then Maine Bar Rule 3.2(f)(3)(4); and failure to use reasonable care and skill and neglect of legal matters in violation of then Maine Bar Rule 3.6(a).
- On August 29, 2011, a Panel of the Grievance Commission reprimanded Attorney Hanson for conduct unworthy of an attorney, in violation of then Maine Bar Rule 3.1(a); handling a legal matter without preparation in violation of then Maine Bar Rule 3.6(a)(2); neglect of a client?s legal matter in violation of then Maine Bar Rule 3.6(a)(3); as well as a lack of diligence in violation Rule 1.3 and communication in violation of Rule 1.4 of the Maine Rules of Professional Conduct.
- At the time of the August 29, 2011 reprimand, Attorney Hanson voluntarily agreed to involvement with the Maine Assistance Program for Lawyers (MAP) and a Confidential Monitoring Agreement by another attorney.
- Although Attorney Hanson?s conduct in the Mark Theriault matter pre-dates the imposition of the August 29, 2011 reprimand, and his subsequent involvement with MAP and the Confidential Monitoring Agreement, much of the conduct in the Franck and Blade matter occurred after the imposition of that reprimand.
- Attorney Hanson has appeared before the Court and acknowledged his errors in judgment and his failure to appreciate his responsibilities to his clients. He has taken full responsibility for his actions, and expressed his contrition for his conduct.
- Attorney Hanson has appeared before the Court and acknowledged and agreed that based upon his history of prior reprimands together with the conduct discussed above, that his practice of law should be limited to specific areas of law and that it should be monitored to ensure his ability to provide diligent and competent representation to his current and future clients.
- ALLAN W. HANSON, ESQ. is hereby suspended from the practice of law in the State of Maine for a period of SIXTY (60) Days;
- The actual SIXTY (60) day period of suspension is hereby suspended for a period of TWO (2) YEARS subject to the following conditions:
- Attorney Hanson will participate in the Maine Assistance Program for Lawyers (MAP), with the agreement that MAP will report directly to Bar Counsel on Attorney Hanson?s status, and, or progress upon Bar Counsel?s request.
- Attorney Hanson?s practice of law will be limited to the following specified areas during the two year period:
- Criminal Defense,
- Child Protective Proceedings,
- Emancipation Proceedings,
- Such other areas as are specified and approved by agreement with Bar Counsel, and
- Attorney Hanson will be allowed to complete any cases outside those areas of practice, existing in his office at the time of this order.
- Attorney Hanson will provide confidentially to Bar Counsel a list of client names and cases, including the type of case, and status of case, on a monthly basis, or on such other schedule as directed by Bar Counsel.
- Attorney Hanson will provide to Bar Counsel a schedule of all upcoming court appearances on a weekly basis, or on such other schedule as approved by Bar Counsel.
- Attorney Hanson will not commit any new ethical violations.
- For any new apparent ethical violation, or for any violation of the specific provisions of this Order, Bar Counsel shall bring the alleged violation directly before this Court for hearing on an expedited basis. Upon a finding of any violation by this Court, it may impose all or any portion, of the actual underlying 60-day period of suspension.
- Upon certification to the Court by Bar Counsel that the defendant has completed the requirements described above, the period of suspension, and underlying suspension from the practice of law, shall terminate without further order of the Court.
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. BarR. 7.3(h)(3), Jose L. Serpa is suspended from practicing law in Maine for sixty (60) days for his violations of the portions of Maine's Rules of Professional Conduct that are analogous to his violations of the Massachusetts Rules of Professional Conduct as found in the Massachusetts' Order of Term Suspension, i.e. M. R. Prof. Conduct 8.4(c)(d); and
- Within thirty (30) days of the entry of this Order, Mr. Serpa shall file with the Clerk, and with the Board of Overseers, an affidavit attesting his compliance with the provisions of Maine Bar Rule 7.3(i)(B)(C).
- Mr. Giese shall serve his suspension from November 10, 2014 until May 12, 2019.
- Given his existing suspension, the Court assumes and expects that Mr. Giese has already provided or will provide notice of his suspension to all clients, courts and opposing counsel, consistent with M. Bar R. 7.3(i)(1). Mr. Giese shall also return any remaining client property still within his possession.
- Mr. Giese shall not Petition for Reinstatement until he has made restitution to the LFCP for all claims paid on his behalf. Likewise, he shall reimburse any clients who did not receive LFCP funds but who were awarded a refund by the Fee Arbitration Commission.
- Mr. Giese shall also contract with MAP at least six months before filing a Petition for Reinstatement. The earliest time Mr. Giese can seek such Reinstatement is May 13, 2019.
- Mr. Giese shall meet all requirements of M. Bar R. 7.3(j), including the completion of the reinstatement questionnaire. He shall otherwise cooperate with the Board and or Bar Counsel.
- Until this Court reinstates Mr. Giese to practice law, he may not appear before any tribunal and he is prohibited from advising, consulting or meeting with any clients. In sum, he may not practice law or appear as though he is practicing law in any manner.
- Effective upon any reinstatement, Mr. Giese shall submit his practice to monitoring by a court appointed monitor for two years or longer if the Court or his assigned deems it necessary.
- Finally, Mr. Giese is expected to refrain from any criminal or fraudulent conduct, all of which will be considered upon any reinstatement petition filing.
- Secure the professional files, client property and client data of Attorney Pallas.
- Obtain access to Attorney Pallas's post office boxes to secure any law office or legal mail.
- Inventory the open and closed client files.
- Give priority attention to client matters that are open and time sensitive.
- Notify clients or former clients that the law practice has concluded and provide opportunity for clients to retrieve their property.
- Attorney Sinclair shall also prudently access and utilize Attorney Pallas's operating and IOLTA accounts to effect the formal conclusion of the practice, including the temporary retention of office staff or other personnel as necessary and appropriate.
- Due to his disability caused by depression, Speziali was removed from the active practice of law in Connecticut from 2008 until December 2013;
- The December 2013 Connecticut Order confirmed the earlier seven month retroactive disciplinary suspension (September 30, 2008 - April 28, 2009), and validated Speziali's return to active practice in Connecticut; and
- Court-monitoring conditions imposed by that 2013 Order have been complied with by Speziali and currently remain in place.
- Secure the professional files, client funds and property of the Reitman law office;
- Obtain signatory authority over all Reitman law office bank accounts (IOLTA and operating/ office accounts);
- Obtain access to Attorney Reitman's computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and closed client files;
- Give priority attention to client matters which are open and time sensitive; if necessary, Attorney Dennen shall notify all courts that he is serving as the Court-Appointed Receiver for Attorney Reitman's practice.
- Attorney Dennen shall notify clients/former clients that he is serving as Receiver for the Reitman law practice and provide opportunity for clients to retrieve their property.
- Attorney Dennen shall access and utilize Attorney Reitman's operating and IOLTA accounts to prudently and appropriately wind down the practice. The Receiver may pay expenses, as he deems appropriate given available funds or anticipated receivables to the firm. The Receiver may also hire temporary office staff and take other action as necessary and appropriate to wind down and close the Reitman law practice.
- On December 12, 2011, Attorney Heminway executed a written engagement agreement with Mr. Otolembo to handle asylum application proceedings;
- In his notes of that December 12, 2011 meeting with Mr. Otolembo, Attorney Heminway made the following entries: "Individual Hearing 3/14/12" and "Need to change venue to Boston;"
- Mr. Otolembo is a native of the Democratic Republic of Congo. The Notice of Hearing in his immigration matter - a "removal proceeding" - was dated May 16, 2011, and scheduled that hearing to take place on March 14, 2012 before the United States Immigration Court in Dallas;
- That hearing occurred on that date in the absence of either Mr. Otolembo or Attorney Heminway, the latter having failed to file a timely Motion to Change Venue and Continue. Attorney Heminway mailed a motion for filing in Dallas, Texas on March 12, 2012, and it appears not to have been received by the Immigration Court until March 15, 2012, one day after Mr. Otolembo's hearing;
- Prior to the March 14th hearing date, Attorney Heminway had been advised by an experienced immigration attorney at the Immigration Legal Advocacy Project (ILAP) in Portland, Maine that the court would most likely not rule on his motion prior to the March 14, 2012 hearing date;
- Attorney Heminway's request for continuance was denied and judgment was issued against Mr. Otolembo in his absence and without his knowledge;
- In an email dated March 10, 2012, Attorney Heminway specifically informed Mr. Otolembo that he had "not (yet) heard back from the Immigration Court in Dallas regarding our Motion to Change Venue (and Continue)." Attorney Heminway did not submit that motion until two days later, on March 12, 2012;
- By an email dated April 19, 2012, Attorney Heminway notified Mr. Otolembo that his motion had been denied;
- Attorney Heminway met with Mr. Otolembo on April 24, 2012 to review what should happen next with his immigration matter. Attorney Heminway agrees that he then informed Mr. Otolembo he would file a motion to re-open his case, that Mr. Otolembo shortly thereafter agreed and understood he would do so, but Attorney Heminway never made any such filing; and
- Mr. Otolembo obtained replacement counsel, Attorney Wagner, who thereafter commenced preparation of a motion to re-open Mr. Otolembo's immigration matter, based upon ineffective assistance of counsel by Attorney Heminway.
- Andrucki & Associates, Receiver of the law practice of William B. Cote, has taken all reasonable steps to discharge the firm's obligations as Receiver of the law practice of William B. Cote, to return all client files, and to disburse all funds in William B. Cote's operating and trust accounts.
- Andrucki & Associates is entitled to reasonable compensation for services rendered and for reimbursement of expenses incurred while serving as Receiver. The amount of reimbursement is $1,600.15, and compensation shall occur through retention of the three law office computers currently in the possession of the Receiver.
- By March 1, 2015 the Board of Overseers shall be responsible to maintain in storage those client files that have not yet been retrieved by the clients of William B. Cote. Until that time, the files shall remain at the law office of Shankman &Associates in Lewiston, Maine. In that regard, the Court appreciates Attorney Shankman's assistance to the bar and to Mr. Cote's clients. Following the Overseers' relocation of the files, it shall maintain a record of its costs for storage and maintenance of those client files.
- Likewise, the Court acknowledges the valuable service Andrucki & Associates has performed, thanks them for their generous efforts and extends its sincere appreciation for agreeing to assist Mr. Cote, the bar and the public.
- Andrucki & Associates is discharged as Receiver of the law practice of William B. Cote effective immediately.
- The Board of Overseers shall maintain in storage (prior to any permitted destruction) those client files that have not been retrieved by the clients of William B. Cote. The Board shall be reimbursed for its costs/expenses with funds due to or received on behalf of Mr. Cote.
- The Receiver is authorized to retain $1,600.15 of the funds in the IOLTA and operating accounts as reasonable compensation for its service as Receiver for the law practice of William B. Cote and reimbursement for expenses incurred by Andrucki & Associates while serving as Receiver of Mr. Cote's law practice. Furthermore, the Receiver is authorized to retain the three office computers currently in the possession of the Receiver as additional compensation for services.
- Mr. Cote shall be personally responsible for repayment of any outstanding debts in his name.
- The Board of Overseers shall hold in trust any remaining funds (in or due to the operating and IOLTA accounts) of William B. Cote. The Board shall continue to hold such funds until January 2018, unless otherwise ordered by the Court.
- New Jersey
In 1996, the New Jersey State Bar had instituted disciplinary proceedings against Mr. Jonas based on his conduct in his own divorce proceedings. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005). That grievance was placed on untriable status until the end of 1999 based on Jonass pending divorce litigation. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005). A formal ethics complaint was eventually filed in 2003, and Jonas was suspended from the New Jersey bar for a period of six months effective September 2, 2005, for conduct intended to disrupt a tribunal and conduct that was prejudicial to the administration of justice. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005), affd, 889 A.2d 1055 (N.J. 2006); Pl. Ex. 9. Jonas has not been reinstated in New Jersey.
- Pennsylvania
In 2006, Mr. Jonas was reciprocally suspended from the bar of Pennsylvania for a period of six months based on the discipline imposed in New Jersey. In re Jonas, No. 1158 Disciplinary Docket No. 3 (Penn. Sept. 7, 2006); Bd. Ex. 3. In Pennsylvania, a lawyer who is suspended for less than one year will automatically be reinstated if the lawyer files a verified statement showing compliance with all the terms and conditions of the order of suspension. Pa. R. Disciplinary Enforcement 218(g)(1). Although Pa. R. Disciplinary Enforcement 218(g)(2)(i) and (ii) both appear to preclude the application of this summary process to Jonas, it appears that Jonas used the Rule 218(g)(1) process and was reinstated to inactive statusfrom which he may seek reinstatement to active statusin Pennsylvania in 2014. Office of Disciplinary Counsel v. Jonas, No. 1158 Disciplinary Docket No. 3, 2014 Pa. LEXIS 3456 (Pa. Dec. 24, 2014). Thus, Pennsylvania allowed Jonas to ameliorate his suspension without any inquiry into his moral qualifications, competency and learning in the law . . . and that resumption of the practice of law . . . by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest that is otherwise required to resume practice after a suspension. Pa. R. Disciplinary Enforcement 218(a)(1), (c)(3); Office of Disciplinary Counsel v. Jonas, No. 1158 Disciplinary Docket No. 3, 2014 Pa. LEXIS 3456 (Pa. Dec. 24, 2014).
- Florida
In 2007, Mr. Jonas was reciprocally suspended from the Florida bar for committing conduct intended to disrupt a tribunal for a period of one year and ordered to pay costs of $2103.37. Fla. Bar v. Jonas, 979 So. 2d 220 (Fla. 2007); Fla. Bar v. Jonas, No. SC06-695, Report of Referee (Fla. Jan. 23, 2007); Bd. Ex. 4. His request for a rehearing, clarification, and a written opinion was denied. Fla. Bar v. Jonas, No. SC06-695, 2008 Fla. LEXIS 432 (Fla. 2008); Bd. Ex. 5.
- Maine
Jonas was admitted to the practice of law in Maine in 1987. Bd. Ex. 30. His license to practice here was administratively suspended in 1995 as a result of his failure to complete his annual registration.7 See M. Bar R. 6(b)(1). Bd. Ex. 30.
Through a 2011 letter to the Maine Board of Overseers of the Bar (the Board), Jonas indicated his intent to seek reinstatement to the Maine bar. Pl. Ex. 1. In that letter, Jonas continued to advance his contentions that his divorce proceedings were the result of criminal misappropriation of trust funds, and that his disciplinary proceedings in New Jersey, Florida, and Pennsylvania were the result of collu[sion] to retaliate by Linda and Gold. Pl. Ex. 1. He also denigrated the disciplinary proceedings undertaken in Florida, stating that the Florida special master did not have any interest in knowing why New Jersey suspended me. Pl. Ex. 1. Finally, Jonas wrote, The story is fit for a novel, but I assure you I have the records and have briefed it to the appropriate courts in the hope that the New Jersey court will vindicate my reputation and clear the record. Pl. Ex. 1.
On September 20, 2013, Jonas formally sought reinstatement by submitting to this Court and to the Board a petition, $2539 in past due registration fees, an annual registration statement, an annual IOLTA report, a 2012 CLE report, an affidavit of his compliance with M. Bar R. 7.3(j)(5), and a completed reinstatement questionnaire.8 Jonas v. Jonas, FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 4, 2006); see M. Bar R. 7.3(j)(4). Bd. Ex. 29, 30, 31; Pl. Ex. 5, 6, 7. Bar counsel opposed Jonass petition. See M. Bar R. 7.3(j)(5). The Grievance Commission of the Board conducted a testimonial hearing on Jonass petition on March 4, 2014, in which Jonas appeared on his own behalf. See M. Bar R. 7.3(j)(5). Bd. Ex. 36. On March 21, 2014, the Commission recommended Jonass conditional reinstatement to the Maine bar contingent on his payment of all outstanding amounts owed to the bar disciplinary boards of New Jersey and Florida, and his submission of a full financial disclosure. See M. Bar R. 7.3(j)(6).
After Bar Counsel objected to the Commissions recommendation, the Board formed a special panel to review de novo the evidence presented before the Commission. Based on the special panels review of the record, by decision dated September 24, 2014, the Board recommended the denial of Jonass petition for reinstatement.
The matter was then referred to the Supreme Judicial Court, and was assigned to me, sitting as a single justice. I issued an initial order dated November 5, 2014, asking the parties to submit briefs regarding the authority of the Board to establish a special panel, the effect of such a special panels decision, and whether all of the factors set out in M. Bar R. 7.3(j)(5) apply to what is in Maine only an administrative suspension. Based upon the parties responsive submissions, and after a hearing on January 16, 2015, I issued an order dated January 22, 2015, noting that Jonas had failed to object to the special panel procedure undertaken by the Board, and concluding that the Board had the authority to invoke the special panel procedure pursuant to M. Bar R. 7.3(j)(6) and Maine Board of Overseers of the Bar Regulation 50. I also concluded that, although Jonass suspension in Maine was an administrative suspension, his petition for reinstatement is nonetheless subject to each of the requirements in M. Bar R. 7.3(j)(5). Given that two entitiesthe Grievance Commission and the Boards special panelarrived at different conclusions based on reviews of the same evidentiary record, I conducted an entirely new testimonial hearing in the matter pursuant to M. Bar R. 7.3(j)(6) (The Court shall, with or without hearing, grant or deny the petition for reinstatement by written order . . . .).
- The petitioner has fully complied with the terms of all prior disciplinary orders;
- The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;
- The petitioner recognizes the wrongfulness and seriousness of the misconduct;
- The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;
- The petitioner has the requisite honesty and integrity to practice law;
- The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been . . . prohibited from the practice of law in Maine . . . .
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. Bar R. 7.3(h)(3), Kirk Y. Griffin is now disbarred from the practice of law in Maine. That disbarment relates to Mr. Griffin's violations of those portions of Maine's Rules of Professional Conduct that are analogous to the violations found by the Massachusetts Supreme Judicial Court;
- By analogy, those Maine Rule violations include M. R. Prof. Conduct l.1, 1.3, 1.15(b)(c)(d)(e)(5), 15(f)(l) and 8.4{c)(d); and
- Mr. Griffin's disbarment shall remain In effect until further Order of this Court.
- Plaintiff is the Board of Overseers of the Bar (the Board).
- Defendant is Philip S. Cohen, Esq. (Attorney Cohen) of Waldoboro, Maine. Attorney Cohen was admitted to the Maine Bar in 1994 and was at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Since his admission in 1994, Attorney Cohen has engaged in private practice in Waldoboro, Maine. He has no disciplinary record history on file with the Board.
- By his filing of December 11, 2013, Assistant District Attorney (ADA) Andrew Matulis formally complained to Bar Counsel that Attorney Cohen had been charged by criminal complaint in the Wiscasset District Court with having committed Domestic Violence Assault (Class D) upon a family or household member (his now-former spouse), Beth Cohen, on November 15, 2013.
- In that complaint, ADA Matulis further alleged that Attorney Cohen had also been charged in that same court with a Violation of Condition of Release (Class E), by having contact with Beth Cohen between November 19 and December 4, 2013, in violation of the conditions of his release.
- On July 11, 2014 Attorney Cohen entered pleas of "guilty" to an amended charge of Disorderly Conduct (Class E), and the Violation of Condition of Release (Class E) referenced above; the charge of Domestic Violence Assault was dismissed.
- Pursuant to a plea agreement, the court ordered Attorney Cohen's sentencing to be deferred for a period of one year, and Attorney Cohen agreed to and signed the "Agreement of Defendant and Order Deferring Disposition," containing the court-ordered conditions of deferment.
- On July 23, 2014 the State filed a Motion to Terminate Deferment and Impose Sentence in the matters Attorney Cohen had plead guilty to, which involved allegations of new criminal conduct by Attorney Cohen, Domestic Violence Assault, against Beth Cohen.
- A contested testimonial hearing was held on October 3, 2014 before Justice Roland Cole on the State's Motion to Terminate Deferment and Impose Sentence. By a preponderance of the evidence, Justice Cole found that Attorney Cohen had committed new criminal conduct, Domestic Violence Assault, in violation of the conditions of deferment, and continued the matter to October 15, 2014 for sentencing.
- After conducting a hearing on October 15, 2014, Justice Cole imposed a sentence of 28 days of actual incarceration on the charge of Disorderly Conduct, and a concurrent sentence of 30 days of actual incarceration on the charge of Violation of Condition of Release, with separate fines of $1,000.00 on each charge.
- Attorney Cohen paid each fine in full and served 19 days of his jail sentence in the Segregation Unit of Two Bridges Regional Jail because of his attorney status and the remainder of his jail time in the general jail population performing community service projects.
- On November 15, 2013, Attorney Cohen engaged in criminal conduct involving his now-former spouse, Beth Cohen, that constituted the offense of Disorderly Conduct, l7-A, M.R.SA§501-A(1)(A), by intentionally or recklessly causing annoyance to Beth Cohen by making loud and unreasonable noise.
- On July 11, 2014, Attorney Cohen pled "guilty" to the crime of Disorderly Conduct based upon his conduct on November 15, 2013.
- On October 15, 2014, Attorney Cohen received a sentence of 28 days of actual incarceration with a $1,000.00 fine on the offense of Disorderly Conduct.
- After his arrest on November 15, 2013 for Domestic Violence Assault against his then-wife, Beth Cohen, Attorney Cohen was released on bail, with a special condition of his release being that he have no contact, direct or indirect, with Beth Cohen.
- Between November 19, 2013 and December 4, 2013, Attorney Cohen violated the conditions of his release on multiple occasions, by having direct, and/or indirect, contact with Beth Cohen. Over the period of approximately two weeks, Attorney Cohen sent, or exchanged, approximately 100 text messages with Beth Cohen in direct violation of his court-ordered bail conditions.
- On July 11, 2014, Attorney Cohen pled "guilty" to the crime of Violation of Condition of Release, based upon his conduct between November 19thand December 4th, 2013.
- On October 15, 2014, Attorney Cohen received a sentence of 30 days of actual incarceration with a $1,000.00 fine for the crime of Violation of Condition of Release.
- On December 6, 2013, Attorney Cohen appeared in the Wiscasset District Court in Docket Number WlSDC-CR-2013-00793, entering pleas of "not guilty" on charges of Domestic Violence Assault and Violation of Condition of Release.
- On December 6, 2013, Judge Dow of the Maine District Court set bail at $500 in cash, with special conditions of release, including a condition that Attorney Cohen have "no direct or indirect contact with Beth Cohen."
- Attorney Cohen signed the Bail Bond on December 6, 2013, agreeing to the terms and conditions of his release.
- Between December 6, 2013 and March 27, 2014, on numerous occasions, Attorney Cohen had direct and indirect contact with Beth Cohen, including: telephonic communication; electronic text messaging; email communication; and direct "face to face" contact.
- Prior to March 5, 2014, Attorney Cohen and Beth Cohen discussed entering into a judicial separation agreement, rather than a divorce proceeding.
- A Marital Settlement Agreement for Judicial Separation was entered into between Beth Cohen and Attorney Cohen, both of whom were represented by legal counsel, being signed by the parties on March 5th and 12th, 2014, respectively, resulting in a cash payment by Attorney Cohen to Beth Cohen of $305,000.
- Attorney Cohen filed for divorce from Beth Cohen on August 26, 2014 and they were divorced on March 16, 2015 at which time the Marital Settlement Agreement was incorporated but not merged into the final divorce judgment. Beth Cohen was represented by legal counsel at all times during the divorce proceedings.
- Prior to March 28, 2014, Attorney Cohen's conditions of release, as set on December 6, 2013, included a condition that he not possess or use alcohol or illegal drugs, and that he would submit to a search of his person, vehicle and residence for evidence of violation of conditions of his release at any time without articulable suspicion.
- Attorney Cohen sought amendment of his conditions of release, and on March 28, 2014 he signed Amended Bail Bonds that deleted the condition that he not possess or use alcohol.
- Those new bail bonds signed by Attorney Cohen continued the condition that he not have direct or indirect contact with Beth Cohen, and provided in addition that he not return to the marital residence or be within 10 feet of Beth Cohen.
- Between March 28, 2014 and July 11, 2014, on numerous occasions, Attorney Cohen violated the specific conditions of those amended bail bonds by having direct and indirect contact with Beth Cohen, including: telephonic communication; electronic text messaging; email communication; and direct "face to face" contact.
- During the time period between March 28, 2014 and July 11, 2014, Attorney Cohen used an alias, "Zane Maxim," on a "Facebook" account created by Beth Cohen under that alias, so that he could communicate more easily with Beth Cohen through the "Facebook" messaging system.
- Through his conversations with Beth Cohen, Attorney Cohen was aware that she had decided to use the money she received from the separation agreement to move out of the country and purchase a residence in Costa Rica. Attorney Cohen informed Beth Cohen that he opposed this decision.
- After Beth Cohen left the United States for Costa Rica, Attorney Cohen and Beth Cohen continued to have mutual contact by telephone, email, and other electronic means.
- After Beth Cohen left the United States, and at her request, Attorney Cohen assisted Beth Cohen with personal and property issues that arose as the result of her move to Costa Rica.
- On two occasions between March 28, 2014 and July 11, 2014, Attorney Cohen left the United States and visited with Beth Cohen at her new residence in Costa Rica at her request.
- On one occasion between March 28, 2014 and July 11, 2014, Attorney Cohen purchased airline tickets for Beth Cohen and her daughter to travel from Costa Rica to the United States at her request, and he had personal contact with Beth Cohen when she returned to the United States.
- On July 11, 2014, Attorney Cohen appeared before Justice Roland Cole of the Maine Superior Court, and entered pleas of "guilty" to the two charges of Violation of Condition of Release and Disorderly Conduct. Pursuant to the negotiated disposition, the State dismissed the charge of Domestic Violence Assault. The court amended Attorney Cohen's conditions of release to allow him to have contact with Beth Cohen, upon her written consent, and sentencing was continued pursuant to a proposed agreement for a deferred disposition. Beth Cohen provided her personally delivered hand written consent to allow contact between Attorney Cohen and Beth Cohen.
- On July 12th, after entering his pleas of guilty, Attorney Cohen met with Beth Cohen at a rented camp or cottage in Jefferson, Maine.
- Late in the evening of July 12th, or during the early morning hours of July 13th, Attorney Cohen got into a physical altercation with Beth Cohen, resulting in allegations of new criminal conduct, specifically Domestic Violence Assault, Obstructing Report of a Crime and Violation of Condition of Release.
- As a result of Attorney Cohen's alleged assault on Beth Cohen, the State moved to terminate Attorney Cohen's deferred disposition, and to have sentence imposed on the underlying criminal charges.
- The State's Motion for Termination of the Deferred Disposition was heard before Justice Cole on October 3, 2014, At that hearing, Justice Cole found by a preponderance of the evidence that Attorney Cohen had committed new criminal conduct, Domestic Violence Assault, in violation of his deferred disposition agreement.
- On October 15, 2014, Justice Cole sentenced Attorney Cohen to 30 days of incarceration on the Violation of Condition of Release conviction, with a $1,000,00 fine, and 28 days of incarceration on the Disorderly Conduct conviction, with an additional $1,000,00 fine. Attorney Cohen paid each fine in full and served 19 days of his jail sentence in the Segregation Unit of Two Bridges Regional Jail because of his attorney status and the remainder of his jail time in the general jail population performing community service projects.
- Attorney Cohen's conduct of violating the court's order of deferred disposition on July 12 and 13 2014 was in direct violation of the court's July 11, 2014 order of deferred disposition, and bail order.
- Attorney Cohen's conduct of intentionally or recklessly causing annoyance to Beth Cohen by making loud and unreasonable noise on November 15, 2013, constituted the crime of Disorderly Conduct;
- Attorney Cohen's conduct of having direct and indirect contact with Beth Cohen, including: telephonic communication; electronic text messaging; email communication; and direct "face to face" contact on numerous occasions between November 18, 2013 and December 4, 2013; December 6, 2013 and March 27, 2014; March 28, 2014 and July 11, 2014, each constituted the crime of Violation of Condition of Release; and
- Attorney Cohen's conduct of violating the court's order of deferred disposition on July 12th-13th constituted the crime of Violation of Condition of Release.
- Attorney Cohen's contact with Beth Cohen between November 19th and December 4th, 2013; December 6, 2013, and March 27, 2014; and March 28, 2014 and July 11, 2014, was in violation of his bail conditions and was prejudicial to the administration of justice; and
- Attorney Cohen's conduct on July l2 and 13, 2015 was in violation of his court ordered deferred disposition and bail conditions.
- Attol1ley Cohen shall serve his actual period of suspension from August 1, 2015 until August 31, 2015; on or before the date of suspension he shall provide written notice to his clients represented in pending matters; any co-counsel in pending matters; an any opposing counsel in pending matters, or in the absence of opposing counsel, the adverse parties, of the suspension and file an affidavit confirming such notice with the Board consistent with the requirements of M. Bar R. 31(a)(h).
- During the period of actual suspension, Attorney Cohen shall not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients for the purpose of providing legal representation or advice. He may not practice law or appear as though he is practicing law in any manner. He may not advise or consult with other attorneys, including those in his office, regarding any cases or the running of the office. The prohibition against consulting with attorneys does not include providing strictly historical or background information to any attorney handling a matter that Attorney Cohen was previously engaged in. Attorney Cohen shall not be present in his office during business hours, or while clients are present during the period of his suspension. During any time that Attorney Cohen is present in his office, he will only have access to his personal files, and will not seek or obtain access to client files.
- Attorney Cohen shall refrain from any criminal conduct, and shall abide by and otherwise obey to the extent within his control all the terms and conditions of any existing or future court orders applicable to him, whether personally or professionally.
- Attorney Cohen shall also completely and timely comply with the provisions of M. Bar R. 31.
- If Attorney Cohen commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose the suspended portion of this sanction.
- In the event a grievance complaint against Attorney Cohen is received by Bar Counsel after the date of this order during the one year period of the suspended suspension, Bar Counsel may seek permission of a Grievance Commission Panel to proceed with a new disciplinary matter directly before the Court pursuant to Bar Rule l3(d)(6).
- Upon certification to the Court by Bar Counsel that Attorney Cohen has successfully completed all of the requirements described above, including the period of actual suspension, the underlying suspension from the practice of law shall terminate without further order of the Court.
- Ms. Dwyer-Jones shall continue to participate in Alcoholics Anonymous meetings at least three times weekly. She shall report to Bar Counsel both the identity of her sponsor(s) (with their permission) and her participation in the program;
- Ms. Dwyer-Jones shall comply with her physician's instructions relating to prescribed medications and shall notify her primary care physician if any medication related events occur including side effects and consuming more or less than the prescribed amounts of medication;
- Ms. Dwyer-Jones shall follow the treatment recommendations of her medical and mental health providers. She shall receive consistent treatment from those providers to promote continuity of care;
- Ms. Dwyer-Jones shall meet with the Maine Assistance Program for Lawyers and Judges (MAP) and execute a contract satisfactory to MAP;
- Ms. Dwyer-Jones shall abstain from the use of alcohol and any non-prescribed mood altering medications or substances; and report any relapse and any mental health or substance-related hospitalizations to MAP and Bar Counsel;
- Ms. Dwyer-Jones shall execute and deliver releases for MAP and Bar Counsel to monitor her ongoing treatments;
- For a period of at least two (2) years, Ms. Dwyer-Jones shall be monitored in her practice by a mutually agreed-upon third party;
- Ms. Dwyer-Jones shall refrain from all criminal conduct and shall report immediately any criminal charges to MAP and to Bar Counsel; She shall further report any convictions arising out of criminal conduct in any jurisdiction;
- Ms. Dwyer-Jones shall report to MAP and Bar Counsel any matters in which she is the subject of any civil protection order, e.g., Protection from Harassment or Protection from Abuse;
- Ms. Dwyer-Jones shall designate a Maine attorney to serve as her proxy in the event of any future disability;
- Ms. Dwyer-Jones shall maintain stable housing and report any change of address and contact information to MAP and Bar Counsel. She shall ensure that both entities have updated information by which to contact her;
- Ms. Dwyer-Jones shall reimburse MCLIS to its satisfaction for her own court-appointed attorney's services;
- Ms. Dwyer-Jones shall pay all court fines to the satisfaction of the court;
- Ms. Dwyer-Jones shall reimburse the Board of Overseers to its satisfaction for its costs and expenses in investigating and prosecuting her disciplinary matter;
- Ms. Dwyer-Jones shall report any disciplinary proceeding and/or sanctions to all jurisdictions where she is admitted;
- Ms. Dwyer-Jones shall comply timely with her required annual registration filings and continuing legal education requirements; and
- Ms. Dwyer-Jones shall engage a third party, satisfactory to Bar Counsel, to reconcile her trust account(s) on a monthly basis, and to provide a copy of that accounting to Bar Counsel each month.
- Petitioner is the Board of Overseers of the Bar.
- Respondent is Dale L. Lavi of Camden, Maine. Lavi is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC).
- The Board asserts upon information and belief within paragraphs #4 through #24 that Lavi engaged in conduct that violated specific portions of the Maine Rules of Professional Conduct (MRPC) that warrants the imposition of discipline.
- Kenneth R. Artkop of Searsmont, Maine filed a complaint against Lavi on February 23, 2015.
- In that filing, Artkop complained that Lavi has seriously neglected his and his wife's (Jill) bankruptcy matter that Lavi was hired to handle nearly three years ago, in the summer of 2012.
- According to Artkop, Lavi was disorganized, failed to return many phone calls brought the wrong file to a discussion meeting, and was repetitive at the few meetings he had with the Artkops.
- Artkop also asserted that Lavi has been unreachable by phone, both prior to and subsequent to Lavi having submitted his grievance complaint, and has failed to return their client file.
- The Artkops had paid Lavi $1,500.00 to legally represent them and properly handle their bankruptcy matter.
- On February 24, 2015 Bar Counsel mailed a copy of the Artkop grievance filing to Lavi, requesting and directing that Lavi submit a written response thereto by March 17, 2015.
- Lavi never filed any such written response, in violation of MRPC 8.1(b).
- Lavi?s being accessible by phone was later confirmed by Bar Counsel Assistant, Marilyn DeMichele, who had a similar experience on March 25, 2015.
- On that date, DeMichele both telephoned and emailed Lavi confirming that his response remained overdue, and requesting that he submit a written response by April 3, 2015.
- On that same date, March 25, 2015, Bar Counsel again wrote to Lavi, directing him to so respond to the Artkop grievance by April 3, 2015.
- Lavi failed to so respond by that date or at any time.
- In that regard, Lavi has totally neglected the discipline process by failing to submit any response whatsoever, in violation of Rule 8.1(b).
- On or about April 28, 2015, Jill Artkop spoke by telephone with Lavi. In that call, Lavi claimed that he had earlier mailed the Artkops their file materials, but was unable and failed to provide any confirmatory information of when or how he had done so.
- In that call, Lavi also promised Jill that he would again mail those documents to the Artkops on that date, April 28, 2015.
- Lavi failed to do so, as the Artkops have never received any of their bankruptcy file documents from Lavi. As a result, Lavi engaged in conduct that violated MRPC 1.1; 1.3; 1.4(a); 1.5(a); 1.15(b)(2)(iv); 1.16(d); and 8.4(a)(c)(d).
- In addition to the above-described difficulties and failures the Artkops have experienced with Lavi, they have been further injured from his misconduct by needing to hire new replacement counsel, resulting in additional legal fees, filing fees (totaling at least $2,000.00) and other monetary damages.
- The new attorney for the Artkops has also written and telephoned Lavi with similar requests, but has also received no response or any documents from Lavi.
- Upon a recent visit to Lavi?s office in Camden, Artkop discovered it to be abandoned.
- On or about May 19, 2015, Bar Counsel also left a voicemail and email for Lavi to directly contact Bar Counsel concerning the return of the Artkops' file.
- Lavi never replied in any manner to Bar Counsel's call, emails or letters, in violation of MRPC 8.1(b).
- Based on the facts set forth in the above, the Board alleges that Dale L. Lavi, Esq. engaged in violations of at least the following Maine Rules of Professional Conduct: 1.1; 1.3; 1.4(a); 1.5(a); 1.15(b)(2)(iv); 1.16(d); 8.1(b); and 8.4(a)(c)(d).
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. Bar R. 26(e), Julie C. Molloy is suspended from the practice of law in Maine. That suspension is based on Ms. Molloy's violations of those portions of Maine's Rules of Professional Conduct that are analogous to the Rules of Professional Conduct that the Supreme Judicial Court of Massachusetts found she had violated in its Order of Term Suspension.
- Ms. Molloy's suspension shall remain in effect until the Court reinstates her to the Maine Bar.
- Within thirty days after the entry of this order, Ms. Molloy shall file with the Clerk of the Law Court and with Bar Counsel an affidavit attesting to her compliance with the provisions of Maine Bar Rule 31. Within ten days after the entry of this order, Ms. Molloy shall comply with the affidavit requirement listed in M. Bar R. 31(h).
- Lori was to spend no monies other than for the necessities of life;
- She was to maintain a complete accounting; and
- She was supposed to disclose the existence of the account to Gary.
- Secure the professional files, client property and client data of Ms. Edgecomb;
- Inventory the open and closed client files;
- Give priority to client matters that are identified as open, active and apparently time sensitive;
- Notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- Assist clients with active matters in their efforts to obtain new counsel;
- If necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- Reconcile any IOLTA and business account Ms. Edgecomb used in her practice.
- Secure any professional files, client property and client data of Marilyn Stavros;
- Inventory the client files;
- Confirm that there are no client matters that may be identified as open, active and apparently time sensitive;
- Notify former clients, by publication, and provide them with the opportunity to retrieve their property;
- Assist clients with any active matters, and those clients who left original estate planning and related documents with Marilyn Stavros, in their efforts to obtain new counsel;
- Confirm no notices are necessary to any court, state or county agencies; and
- Reconcile any IOLTA, client or office accounts.
- Secure the professional files, client property and client data of Attorney Kellis;
- Obtain access to Attorney Kellis's post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Kellis's law practice;
- Obtain use, at the Receivers' discretion, all computer hardware, software and digital files, user names and passwords;
- Obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- Reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- Obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- Inventory the open and closed client files;
- Give priority attention to client matters which are open and time sensitive;
- Confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- Prudently access and utilize Attorney Kellis's operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of office staff or other personnel as necessary and appropriate;
- Address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receivers as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- Preserve and protect confidential information of the clients of Attorney Kellis pursuant to M. R. Prof. Cond. 1.6. Attorney Nickerson is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M R. Prof. Resp. 1.17, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- Allow himself and Attorney Griset, jointly or individually, to be engaged by any former client of Attorney Kellis provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receivers' employment by the client. A client's retention of either of the Receivers as successor counsel is not a per se conflict of interest solely by reason of their appointment as a Receivers by this Order; and
- Act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f)(3).
- Submit to the Court a record of hours worked and disbursements made in the event payment of legal fees at the State court appointment rate, if such compensation is requested by Attorneys Griset and Nickerson. The assets of the law office of Attorney Kellis shall be the first method of compensation to the Receivers, although ultimately, the Receivers may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Kellis).
- Any costs or fees associated with Attorney Maloy's monitoring shall be borne by Attorney Dwyer-Jones.
- Attorney Dwyer-Jones will meet with Attorney Maloy at Attorney Maloy's calling and convenience. That shall initially occur on a bi-weekly basis, unless Attorney Maloy subsequently determines that more or less frequent meetings are appropriate.
- Attorney Maloy shall have the right to withdraw and terminate her services at any time for any reason she deems necessary. If she intends to do so, she shall notify Bar Counsel and Attorney Dwyer-Jones of her withdrawal, whereupon this matter may then be scheduled for further hearing as deemed appropriate by the Court.
- If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, Attorney Maloy may adopt any one of the following courses with the proposed result:
- Attorney Maloy shall have the right to contact clerks of court, judges, or opposing counsel to monitor Attorney Dwyer-Jones's compliance with her professional obligations.
- Likewise, if Attorney Maloy determines that Attorney Dwyer-Jones should refrain from accepting complex cases or otherwise expanding her practice, Attorney Maloy shall inform Attorney Dwyer-Jones of that fact. Attorney Dwyer-Jones shall then follow Attorney Maloy's directive to refrain or limit her acceptance of such cases, absent this Court's order to the contrary.
- Attorney Maloy shall initiate no contact with any of Attorney Dwyer-Jones' clients. Attorney Maloy's only communications in the performance of her monitoring duties shall be with Attorney Dwyer-Jones, Bar Counsel and other persons referenced above. However, if any clients of Attorney Dwyer-Jones make contact with Attorney Maloy (with concerns about Attorney Dwyer-Jones) those clients should be referred to Bar Counsel's office.
- Attorney Maloy's participation and monitoring of Attorney Dwyer-Jones' practice shall not be deemed to create an attorney-client relationship between Attorney Dwyer-Jones and Attorney Maloy or between Attorney Maloy and Attorney Dwyer-Jones's clients. Specifically, Attorney Maloy shall be deemed not to represent Attorney Dwyer-Jones or any of Attorney Dwyer-Jones's clients or to be employed by them in any capacity and Attorney Maloy shall not have any responsibility of any nature to any of those clients. Moreover, the attorney-client privilege shall not apply to Attorney Maloy's monitoring of Attorney Dwyer-Jones's practice, and Attorney Maloy shall be immune from any civil liability (including without limitation, any liability for defamation) to Attorney Dwyer-Jones or any of Attorney Dwyer-Jones's clients.
- Attorney Maloy shall have the authority to review and examine any of Attorney Dwyer-Jones's files, except those in which Attorney Maloy might have adverse interests under paragraph 5. In that event, Attorney Maloy shall notify Bar Counsel who may then develop an alternative means of file review.
- Attorney Dwyer-Jones shall prepare and present to Attorney Maloy two weeks in advance of their first meeting a list of all her current clients, showing each pending client's matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Attorney Dwyer-Jones shall prepare and present that information to Attorney Maloy at least one week in advance of the meeting.
- Attorney Maloy will, as soon as practicable, have Attorney Dwyer-Jones establish a method of objectively identifying delinquent client matters and have her institute internal checks and controls to make her practice appropriately responsible to the needs of her clients.
- Attorney Maloy shall file a confidential report with the Court every four months or sooner if the Court deems it necessary. The Report shall be copied to Attorney Dwyer-Jones and Bar Counsel and it shall cover at least the following subjects:
- Attorney Maloy shall have the duty to report to the Court and Bar Counsel any apparent or actual professional misconduct by Attorney Dwyer-Jones of which Attorney Maloy becomes aware. Likewise, Attorney Maloy shall report to the Court and to Bar Counsel any lack of cooperation by Attorney Dwyer-Jones with the terms of this Order.
- Plaintiff is the Board of Overseers of the Bar (the Board).
- Defendant Andrews B. Campbell, Esq. (Attorney Campbell) of Bowdoinham, Maine was admitted to the Maine Bar in 1972. At all times relevant hereto, Campbell was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Since his admission in 1972, Attorney Campbell engaged in private practice in Bowdoinham, Maine and other locations in Maine until 1989, and then again from 1999 to the present. He was disbarred for misconduct in 1989, and reinstated to the Maine Bar in 1999. Since his reinstatement, he has been publicly reprimanded by a Panel of the Grievance Commission on two occasions in 2006 and 2010.
- On September 9, 2012, Catherine A. Gero of Pittston, Maine filed a grievance complaint against Attorney Campbell which included several documents relating to his prior representation of her late second cousin, Mildred MacComb.
- Ms. Gero had been named by Ms. MacComb as a beneficiary in her 1998 Last Will and Testament. In subsequent wills prepared by Attorney Campbell for Ms. MacComb, Ms. Gero was no longer designated a beneficiary.
- In her filings with the Board, Ms. Gero alleged that Attorney Campbell committed misconduct in various ways, including allegations of a personal conflict of interest in the drafting of subsequent wills for Ms. MacComb, including wills in which he was a named beneficiary; exercising undue influence over Ms. MacComb; and generally alleging improper handling of Ms. MacCombs estate planning and other legal matters entrusted to his care by her.
- On or about February 13, 2013 Matthew Fleury filed a grievance complaint against Attorney Campbell concerning his conduct while Campbell served as Fleurys criminal defense attorney.
- Mr. Fleurys complaint alleged improper professional conduct by Attorney Campbell in May of 2006 regarding Campbells drafting and execution of a promissory note. The note obligated Fleury to pay Attorney Campbells client, Theodore Cocco (and Coccos significant other Margaret Boyle), a total of $12,000.00. Fleurys complaint also related to the drafting and execution of a mortgage from Phyllis and Wanda Moulton securing the promissory note. Wanda Moulton subsequently filed her related complaint against Attorney Campbell on July 22, 2014.
- The adversarial financial transaction occurred during the same time period when Mr. Fleury was being represented by Attorney Campbell on 112 counts of Gross Sexual Assault and Unlawful Sexual Contact in the Lincoln County Superior Court.
- Between March of 2004 and October 2006, and then again between November of 2007 and her death on November 12, 2010, Mildred MacComb was represented by Attorney Campbell in several civil matters including real estate matters, and preparation of multiple wills.
- As early as 2003, Ms. Gero observed evidence that she believed demonstrated that Ms. MacComb was delusional in her thinking.
- Beginning in May of 2005, and continuing through the duration of Ms. MacCombs life, some of her medical records reflect that she suffered from delusional thought processes, and/dementia, apparently corroborating Ms. Geros opinion that Ms. MacComb was delusional in her thinking.
- In March of 2004, soon after commencing his representation of Ms. MacComb, Attorney Campbell drafted a will for her that left the bulk of her estate to a testamentary trust.
- In February of 2005, at Ms. MacCombs request, Attorney Campbell drafted a second will for her. The provisions of the 2005 will diminished the scope of the testamentary trust originally created in Ms. MacCombs 2004 will, and devised Ms. MacCombs livestock (eight sheep) jointly to Attorney Campbell and his friend, whom he later married.
- Under the provisions of the 2005 will drafted by Attorney Campbell, Ms. MacComb also devised her interest in real estate previously bequeathed to her by Ethel Foley, together with an additional two acres of land, to Attorney Campbell. Attorney Campbell states that he believed that drafting the instrument was appropriate because he had been asked to do so by his client, and she had been given the opportunity to consult independent counsel.
- In April of 2006, reportedly again at Ms. MacCombs request, Attorney Campbell drafted a third will for her which devised her interest in the real estate previously bequeathed to her by Ethel Foley, together with an additional two acres of land, to Attorney Campbell. Again, Attorney Campbell states that he believed that drafting the instrument was appropriate because he had been asked to do so by his client, and she had been given the opportunity to consult independent counsel.
- In November of 2007, again at Ms. MacCombs request, Attorney Campbell drafted a fourth will. That will did not name Attorney Campbell as a beneficiary.
- Ms. MacComb died on November 12, 2010.
- On December 15, 2010, Attorney Campbell filed a copy of the November 17, 2007 will he had drafted with the Kennebec County Registry of Probate, entering his appearance on behalf of Howard Hoffman who was nominated by the 2007 will as personal representative and trustee. Attorney Campbell later filed the original of that will with the Court.
- On February 14, 2011 Attorney Campbell filed the original of Ms. MacCombs will dated April 28, 2006 with the Kennebec County Registry of Probate.
- On March 8, 2011 Attorney Campbell filed the original of Ms. MacCombs will dated March 26, 2004 with the Kennebec County Registry of Probate.
- On April 24, 2011 Attorney Campbell filed the original of Ms. MacCombs will dated April 15, 2005 with the Kennebec County Registry of Probate.
- On July 25, 2011, the Kennebec County Probate Court issued an Order denying probate of Ms. MacCombs November 17, 2007 will based upon her lack of testamentary capacity.
- On September 5, 2011, Attorney Campbell formally entered his appearance in the Kennebec County Probate Court on behalf of his wife, himself, and James Richman. Attorney Campbell sought probate of the 2006 MacComb will, or alternatively, probate of the 2005 MacComb will. Attorney Campbell indicated in his letter of appearance that Richman was a beneficiary of the 2006 MacComb will. Attorney Campbell also indicated that he personally was a beneficiary under the MacComb wills of 2005 and 2006, and that his wife was a Trustee of the trust set up under the 2005 will.
- On July 26, 2013, Attorney Campbell filed a "Motion to Probate Wills of Mildred MacComb" with the Kennebec County Probate Court seeking probate of the 2006 will, or alternatively, the 2005 will.
- After a series of testimonial hearings, as indicated in finding number 31, the Kennebec County Probate Court, on March 6, 2015, found that there was no undue influence on Attorney Campbells part. However, the Probate Court found that Ms. Macomb lacked testamentary capacity to execute the wills between March of 2004 and April of 2006. Accordingly, the Probate Court denied probate to the three earlier wills drafted by Campbell and executed by Ms. MacComb between March of 2004 and April of 2006.2 During the Probate Court hearings, several witnesses, including Ms. MacCombs personal physician, testified that in their opinions Ms. MacComb was mentally competent during this time period.
- Attorney Campbells effort to probate the 2006 and the 2005 MacComb wills would, if successful, have had the effect of furthering his receipt of testamentary gifts for himself under wills that he drafted for Mildred MacComb.
- In May of 2008, Attorney Campbell prepared a quitclaim deed from Ms. MacComb transferring her interests in real estate from her to himself. The real estate was the same property previously bequeathed to Ms. MacComb by Ethel Foley, and formerly devised to Attorney Campbell in Ms. MacCombs 2005 and 2006 wills.
- On May 12, 2008 Ms. MacComb signed the quitclaim deed to Attorney Campbell. That deed would on delivery and acceptance convey all of her interest as a tenant in common to that property.
- Although Ms. MacComb signed the deed prepared by Attorney Campbell in 2008, Attorney Campbell states that he refused to accept delivery of the deed until such time as he believed his bill for legal services rendered to Ms. MacComb was reasonably equal in value to that of the land, and until after Attorney Daniel Purdy interviewed Ms. MacComb in 2010 at his request. Attorney Purdy subsequently confirmed those events in his testimony before the Kennebec County Probate Court. Attorney Purdy concluded that Ms. MacComb was voluntarily making the transfer, and that in his opinion, she was competent to do so.
- A contested proceeding regarding the probate of Ms. MacCombs 2004, 2005, and 2006 wills drafted by Attorney Campbell was held in the Kennebec County Probate Court, with hearings occurring on May 19, 2014; August 25, 2014; September 24, 2014; and November 25, 2014.
- Within that court proceeding, Attorney Campbell entered his appearance on September 9, 2011 on behalf of himself, his wife, and James Richman. Campbell later moved to withdraw as counsel for Ms. Campbell and Mr. Richman on April 28, 2014.
- Attorney Campbell asked the Probate Court to defer ruling on his Motion to Withdraw on May 5, 2014, in advance of the first hearing date, and continued to act as counsel for Ms. Campbell and Mr. Richman throughout the proceeding.
- On the first day of hearing, May 19, 2014, Attorney Campbell was called upon to testify by Randy Robinson, Esq. who had also entered his appearance on behalf of James Richman, and who had taken on the role of lead counsel.
- Although Attorney Campbell was called to testify regarding the potential disqualification of counsel, he testified substantively in response to the questions he was asked regarding significant events at issue in the hearing, including his professional opinion of Mildred MacCombs testamentary capacity at the time the wills at issue were executed.
- Attorney Campbell testified at the May 19th hearing anticipating that Attorney Robinson would act as trial counsel for James Richman during the remainder of the hearing.
- The Probate Court denied Ms. Geros Motions to Disqualify Counsel, allowing both Attorney Campbell and Attorney Robinson to continue their representation in the matter.
- At the September 24, 2014 hearing, Attorney Campbell took over the examination of witnesses from Attorney Robinson, acting as trial counsel in the cross-examination of the adverse party, Catherine Gero.
- Attorney Campbell has explained that he did not consider himself to be a necessary witness when he originally entered his appearance, and that he resumed his role as an advocate before the tribunal only after the Probate Court declined to disqualify him as counsel for James Richman, believing that the Probate Courts order allowed him to do so.
- On September 2, 2005, the State filed an indictment against Matthew M. Fleury containing 112 counts of Gross Sexual Assault and Unlawful Sexual Contact in Lincoln County Superior Court, WISC-CR-2005-00192.
- Upon the recommendation of his friend, Theodore Cocco, Mr. Fleury retained Attorney Campbell to represent him, and on September 19, 2005, Attorney Campbell wrote to the court entering his appearance on Mr. Fleurys behalf.
- In May of 2006, at Mr. Fleurys request, Mr. Cocco agreed to loan Mr. Fleury money. Mr. Cocco required that the loan be secured by a promissory note and a mortgage.
- Attorney Campbell drafted a Promissory Note & Security Agreement in favor of Mr. Cocco and Margaret Boyle. The document, establishing a debt in the amount of $12,000, was signed by Mr. Fleury and witnessed by Attorney Campbell on May 11, 2006.
- Attorney Campbell drafted a Mortgage Deed in favor of Mr. Cocco and Ms. Boyle from Mr. Fleurys aunt and grandmother, Wanda and Phyllis Moulton, witnessing their signatures and taking Wanda Moultons acknowledgement on May 1, 2006.
- Due to Attorney Campbells representation of Mr. Fleury in the criminal matter, Mr. Fleury alleges that he understood that Attorney Campbell was also acting as his attorney in the loan transaction and in all matters related to it.
- At the time of the drafting and execution of the Promissory Note & Security Agreement Attorney Campbell did not obtain a written informed consent from Mr. Fleury regarding his representation of Mr. Cocco in the preparation of the loan documents.
- Despite being the attorney for the adversarial parties, Attorney Campbell failed to seek or obtain proper client consent from any of his clients to engage in such simultaneous, and/or successive representation.
- Attorney Campbell now understands and agrees that it would have been a better practice to have obtained written waivers from the clients concerned at the time of his representation.
- On or about January of 2013 Attorney Campbell was engaged to try to collect the $12,000 underlying debt owed to Mr. Cocco and Ms. Boyle by Mr. Fleury under the Promissory Note & Security Agreement dated May 11, 2006.
- In January of 2013, Attorney Campbell sent a letter attempting to collect the $12,000 (owed by Mr. Fleury) from Wanda Moulton, based upon the May 1, 2006 Mortgage Deed that he drafted as security for the May 11, 2006 Promissory Note & Security Agreement signed by Moultons nephew, Fleury.
- Attorney Campbells attempts to collect the debt from Wanda Moulton were adverse to Mr. Fleurys wishes, and occurred in the same matter, or a substantially related matter, to his prior representation of Mr. Fleury.
- Attorney Campbells collection efforts were undertaken without obtaining written informed consent from Mr. Fleury.
- Attorney Campbell now understands and agrees that the fact that he attempted to collect Mr. Fleurys debt from Wanda Moulton rather than Mr. Fleury personally, did not avoid the conflict of interest that was created by his representation of the mortgagees. Attorney Campbell now agrees that if faced with the same issue, he would not become involved in a collection conflict between two current or former clients where he had any involvement in the original underlying transaction.
- Attorney Campbells drafting of Mildred MacComb's second will in February of 2005 devising Ms. MacCombs livestock (sheep) to Attorney Campbell created a conflict of interest in violation of then applicable Maine Bar Rule 3.4(f)(2)(iv).
- Attorney Campbells drafting of Mildred MacComb's February 2005 will, devising her interest in real estate previously bequeathed to her by Ethel Foley, together with an additional two acres of land, to Attorney Campbell created a conflict of interest in violation of then applicable Maine Bar Rule 3.4(f)(2)(iv).
- Attorney Campbells drafting of Mildred MacComb's third will in April of 2006, again devising her interest in real estate previously bequeathed to her by Ethel Foley, together with an additional two acres of land, to Attorney Campbell was a conflict of interest in violation of then applicable Maine Bar Rule 3.4(f)(2)(iv).
- Attorney Campbells preparation of a quitclaim deed in May of 2008 from Mildred MacComb to himself, conveying the real estate previously bequeathed to Ms. MacComb by Ethel Foley, and formerly devised to Attorney Campbell in her 2005 and 2006 wills was a conflict of interest in violation of then applicable Maine Bar Rule 3.4(b)(1) and 3.4(f)(2)(i)(iv).
- Attorney Campbells representation in May of 2006 of Theodore Cocco and Margaret Boyle, in a financial transaction with Matthew Fleury while he was also a client, and preparation of the Promissory Note & Security Agreement securing the loan from Mr. Cocco and Ms. Boyle to Mr. Fleury without seeking or obtaining informed consent from any of these clients to engage in such simultaneous, and/or successive representation was a conflict of interest in violation of then applicable Maine Bar Rules 3.1(a); 3.4(b)(1)(2); 3.4(c)(2)(i)(ii)(iii), and 3.4(d)(1)(i).
- Attorney Campbells drafting of the wills in which he was a beneficiary resulted in a conflict with his client. His July 2013 filing of the Motion to Probate wills of Mildred MacComb with the Kennebec County Probate Court seeking to probate the 2006, or alternatively the 2005, MacComb wills would have had the effect of furthering testamentary gifts to himself under wills that he previously drafted on behalf of Mildred MacComb, and therefore created a conflict of interest in violation of M. R. Prof. Conduct 1.8(c).
- Attorney Campbells resumption of his role as an advocate before the tribunal in the September 24, 2014 Probate Court hearing, after having previously testified substantively on contested issues in the same matter before that tribunal, was in violation of M. R. Prof. Conduct 3.7(a).
- Attorney Campbells January 2013 efforts and attempts to collect $12,000 from Wanda Moulton based upon a mortgage deed signed by Ms. Moulton and her mother, Phyllis Moulton, as security for the May 2006 Promissory Note & Security Agreement executed by Matthew Fleury created a conflict of interest in violation of the duties he owed to Matthew Fleury as a former client, and was in violation of M. R. Prof. Conduct Rules 1.9(a)(c)(1) and 8.4(a)(d).
- Plaintiff is the Board of Overseers of the Bar (the Board).
- Defendant Lawrence C. Winger, Esq. (Attorney Winger) of Portland, Maine was admitted to the Maine Bar in 1979.
- At all times relevant hereto, Attorney Winger was an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and to the Maine Rules of Professional Conduct.
- Since his admission in 1979, Attorney Winger has engaged in private practice as a sole practitioner in Portland.
- On or about August 27, 2014 Bar Counsel initiated a grievance complaint against Attorney Winger alleging that he had engaged in professional misconduct based upon alleged criminal conduct by him as set forth within relevant police reports and documents obtained by Bar Counsel from the Cumberland County District Attorney's Office.
- Attorney Winger agrees that he had engaged in misconduct and violated specific portions of the Maine Rules of Professional Conduct for which he should be disciplined by a period of suspension from practice, with conditions, subject to the Court's approval under M. Bar R. 25(a).
- In that regard, Attorney Winger admits that on May 20, 2015 he was convicted by his plea of guilty to Possession of Sexually Explicit Material of a Minor Under 12, in violation of T. 17-A Section 284(1)(C), being a Class C crime.
- He was thereupon sentenced to 5 years imprisonment, with all but 90 days of that confinement suspended, with 4 years of probation. He immediately served that 90-day jail sentence.
- Attorney Winger admits his conduct underlying that criminal conviction constituted a violation of M. R. Prof. Conduct 8.4(b)(d), being criminal conduct that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, as well as being conduct that is prejudicial to the administration of justice.
- This disciplinary proceeding is now continued until January 4, 2016, with Defendant William Dawson?s Answer to the Board?s Information being due to be filed with the Court by January 8, 2016;
- The terms and conditions of the Court?s Consent Order of December 16, 2013 shall remain in effect;
- As provided in the Order dated February 23, 2015, William L. Dawson?s law practice is and shall continue to be restricted and limited to only clients with bankruptcy matters, with all such matters being subject to the jurisdiction and oversight of a U. S. Bankruptcy Trustee or the U. S. Bankruptcy Court, as appropriate;
- William L. Dawson shall, on or before the first day of each month commencing on October 1, 2015 and concluding on December 1, 2015, provide to Bar Counsel an affidavit with the following information:
- The names and addresses of all current clients, with those lists being provided on the first day of each month and shall include a brief description of the legal services rendered to each client within the month preceding the report; and
- Within 10 days of a specific written request by Bar Counsel, Mr. Dawson shall provide copies of client file documentation identified in the monthly reports for review by Bar Counsel.
- Nothing in this Order shall constitute a judicial waiver of the attorney-client privilege. Bar Counsel shall maintain confidentiality of any information or instruments produced pursuant to this Order consistent with Maine Bar Rule 18.
- In the event the state?s criminal prosecution of Dawson is brought to judgment or otherwise closed on a date much earlier than January 1, 2016, causing his Fifth Amendment claim to be removed, the Court will entertain a request to amend this stay of proceedings.
- No further continuances of the due date for the filing of Defendant Dawson?s Answer to this disciplinary Information will be granted as a result of the pending criminal matter.
- In 2006, Doris C. Glidden executed a will that left her entire estate in trust for the benefit of her son, David Glidden, with the remainder reverting to the Second Congregational Church of Newcastle, Maine and her nephew, Craig Borgerson.
- In 2007, Ms. Glidden executed a new will revoking her 2006 will, and reducing the amount that would be set aside in trust for David's benefit to a set sum of $200,000.00.
- After his mother's death, in 2009 David retained Attorney Levesque to contest his mother's 2007 will, and seek probate of the earlier 2006 will.
- David signed a contingency fee agreement that entitled Attorney Levesque to 34% of any recovery achieved through a successful settlement or judgment, or for the payment of court ordered legal fees, whichever was greater.
- Prior to contesting the will in Probate Court, the Second Congregational Church, as the primary remainder beneficiary of the testamentary trust created under the 2006 will, also retained Attorney Levesque, entering into a contingency fee agreement that provided for 34% of any recovery to be paid to Attorney Levesque.
- After a two day trial in the Lincoln County Probate Court, on April 23, 2010 the court issued an order finding that Ms. Glidden lacked the testamentary capacity to execute the 2007 will, and the 2006 will was lodged for probate.
- Based upon the inventory of Ms. Glidden's estate, Attorney Levesque's successful challenge of the 2007 will resulted in between a seven and eight-fold increase over what would have been set aside in trust for David's benefit under the 2007 will. On May 19, 2010 Attorney Levesque filed a motion with an accompanying affidavit with the Lincoln County Probate Court seeking payment of his attorney's fees in the amount of $46,725.50 with additional costs of $4,783.08 from the estate of Doris C. Glidden.
- In seeking court-ordered attorney's fees from the estate, Attorney Levesque failed to advise the Probate Court of the existence of the contingency fee agreements that had been executed by David and the Second Congregational Church or of his intention to seek enforcement of those agreements from the trust created by the 2006 will.
- On June 17, 2010, the Probate Court granted Attorney Levesque's motion, and ordered the estate of Doris C. Glidden to pay $51,508.58 to Attorney Levesque as detailed in his motion and affidavit.
- Subsequent to the award of attorney's fees by the Probate Court, pursuant to the contingency fee agreements with David and the Second Congregational Church of Newcastle, Attorney Levesque sought to recover a contingency fee consisting of 34% of the recovery from the testamentary trust created under Doris C. Glidden's 2006 will.
- The trustee of the testamentary trust objected to payment of the contingency fee, initially resulting in litigation in the Probate Court and then in the Lincoln County Superior Court.
- After the filing of an action by Attorney Levesque in the Lincoln County Superior Court to collect the contingency fee, on September 10, 2013 David filed a Petition for arbitration with the Board's Fee Arbitration Commission (FAC).
- On March 20, 2014 the FAC found that a 34% contingency fee based upon the overall increase in the trust corpus was unreasonable as applied to David, who received only an annual income from the trust.1
- During the first 18 months of probation, Attorney Carey shall not appear in any court proceedings representing any party other than himself. With respect to now-existing cases, within 30 days of the date of this Order, Attorney Carey shall provide a copy of this decision to his litigation clients and arrange for substitute or successor counsel to appear on behalf of such clients in their litigation cases. A copy of this Order shall also be provided to any co-counsel, counsel for adverse parties, and any tribunal in which there are pending matters.
- During the first 18 months of probation, Attorney Carey shall not file any pleadings or documents in any court or tribunal on behalf of any client other than himself, except as may be necessary to arrange for substitute or successor counsel to assume the representation of those existing clients.
- During the period of probation, Attorney Carey shall not accept any new cases that reasonably could require resort to litigation for resolution of a client?s rights or interests.
- On or about the first business day of May, August, November and February of 2016 through February of 2018, Attorney Carey shall certify his compliance with above-named conditions 1, 2, and 3 in writing to the office of Bar Counsel.
- During the last six months of probation, Attorney Carey may ? and is encouraged to ? work with experienced trial counsel on cases conducted by such counsel, either pro bono or on such fee arrangements as they may negotiate. Attorney Carey may participate in court proceedings and/or prepare and file such pleadings or documents to the extent such lead counsel permits. Attorney Carey shall provide such lead counsel with a copy of this grievance decision. Attorney Carey shall immediately advise the office of Bar Counsel of the name(s) of all such trial attorneys with whom he works during this period.
- During his probation, Attorney Carey shall attend and/or participate in at least four trial practice oriented CLE programs qualified for credit by the Board of Overseers of the Bar; at least two such CLE programs must include role-playing or other active participation in mock trial(s). Evidence of participation in these programs must be provided to the office of Bar Counsel within 10 days of completion.
- Within four weeks of the date of this Order, Attorney Carey shall meet with and execute a contract satisfactory to the Maine Assistance Program for Lawyers and Judges (MAP). He shall execute and deliver releases for MAP to monitor his legal practice and the course of his mental health counseling as set forth in condition 8.
- Within 30 days of the date of this order, Attorney Carey shall commence psychological counseling with a licensed clinical psychologist. He shall instruct this mental health professional to consult with MAP to address such concerns as identified by MAP. Attorney Carey shall provide the name and address of the mental health professional to the office of Bar Counsel and shall advise Bar Counsel promptly of changes in the counseling arrangement.
- At least 3 months prior to the expiration of the period of probation, Bar Counsel shall report to the Grievance Commission whether he or she will seek an extension of the period of probation, pursuant to Bar Rule 21(b)(4). In such event, Bar Counsel shall timely file an appropriate motion, and this Panel or a successor Panel shall hold a hearing to determine whether to extend the period of probation.
- Attorney Carey shall reimburse the Board of Overseers its costs of investigation, service of process, witness fees, court reporter services and related expenses totaling $4,109.19 in the processing of this disciplinary matter. This reimbursement shall be made to the office of Bar Counsel within 1 calendar year of this Order.
- Attorney Carey shall comply with all registration, CLE and IOLTA requirements pursuant to Maine Bar Rule 4.
- secure the professional files, client property and client data of Attorney Dresden;
- obtain access to Attorney Dresden?s post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Dresden?s law practice;
- obtain use of, at the Receivers? discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with Ms. Dresden?s bookkeeper and accountant;
- collaborate with Jennifer Atkinson of Friendship, Maine, who is a Massachusetts Attorney whose practice is limited to Immigration matters:
- prudently access and utilize Attorney Dresden?s operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Dresden pursuant to M. R. Prof. Cond. 1.6. Attorney Makela is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from her appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow herself and/or Attorney Atkinson, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Dresden provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of either Ms. Makela or Ms. Atkinson as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order; and
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c).
- submit to the Court a record of hours worked and disbursements made, in the event payment of legal fees at the State court appointment rate is requested. The assets of the law office of Attorney Dresden shall be the first method of compensation to the Receiver and her agents, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Dresden).
- secure the professional files, client property and client data of Attorney Neault;
- obtain access to Attorney Neault?s post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Neault?s law practice;
- obtain and use, at the Receivers? discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- Reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities (including digital media storage facility) in which office or client information and property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- prudently access and utilize Attorney Neault?s operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of office staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receivers as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Neault pursuant to M. R. Prof. Cond. 1.6. Attorney Smith is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Resp. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself to be engaged by any former client of Attorney Neault provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receivers? employment by the client. A client?s retention of either of the Receivers as successor counsel is not a per se conflict of interest solely by reason of their appointment as a Receivers by this Order; and
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f)(3).
- submit to the Court a record of hours worked and disbursements made in the event payment of legal fees at the State court appointment rate, if such compensation is requested by Attorney Smith. The assets of the law office of Attorney Neault shall be the first method of compensation to the Receiver, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Neault).
- secure any professional files, client property and client data of Alan D. Graves;
- inventory the client files;
- give priority to client matters that may be identified as open, active and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- reconcile any IOLTA, client or office accounts.
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects; and
- Effective immediately and pursuant to M. Bar R. 26(e), Tony F. Soltani, Esq. is now reprimanded in Maine for his violations of those portions of Maine's Rules of Professional Conduct that are analogous to Rules 8.4(b) and 8.4(a) of New Hampshire's Rules of Professional Conduct as stated in the New Hampshire Supreme Court Professional Conduct Committee's Order of October 20, 2015.
- secure the professional files, client property and client data of Attorney Sproul;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the client files;
- confer with Special Bar Counsel regarding publication of a notice to former clients retrieval of files;
- if any evidence of any client trust or IOLTA accounts is found, Lester F. Wilkinson, Jr., shall immediately confer with Special Bar Counsel regarding reconciling and closing any such account.
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Sproul pursuant to M. R. Prof. Cond. 1.6;
- allow himself or members of his law firm to be engaged by any former client of Attorney Sproul provided that he informs such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver's employment by the client. A client's retention of Mr. Wilkinson or a member of his firm is not a per se conflict of interest solely by reason of this Appointment Order;
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32(c); and
- submit to the Court a record of hours worked and disbursements made in the event payment of legal fees at the State court appointment rate, if such compensation is requested.
- He has fully complied with the terms and conditions of all disciplinary orders and is fully compliant with the requirements of his federal sentence, presently community release with reporting and monitoring.
- He wound up his practice of law prior to imposition of his suspension, and he has not engaged or attempted to engage in the practice of law since his June 23, 2014 suspension.
- He has successfully completed a rigorous drug abuse rehabilitation and treatment program. He continues to receive counseling and monitoring for alcohol and substance abuse. He has abstained from the use of alcohol or drugs, other than properly prescribed drugs, for approximately two years, and he appears seriously committed to abstaining from use of alcohol or illegal drugs in the future.
- He now recognizes and acknowledges the wrongfulness and seriousness of the misconduct for which he was suspended and subsequently convicted and sentenced.
- Other than minimizing his role in the money laundering prior to and during his sentencing, conduct he now admits to be an error, he has not engaged in any professional misconduct since his suspension.
- Notwithstanding the conduct for which he has been disciplined, after his reevaluation of his life?s situation, he is sincerely committed to practice law and live his life with the requisite honesty and integrity. His reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest. Williams, 2010 ME 121, ¶ 6. In fact, based on his record before 2012, his reinstatement will be in the public interest and in the community interest.
- He has supplied information indicating that he has completed the requisite continuing legal education credits to resume the practice of law and that he has the funds necessary to pay to the Board the fees that would be necessary for his reinstatement. However, rather than making findings on these points, the Court will condition its order of reinstatement on Prolman?s demonstrating to the Board that he has met the requisite continuing legal education requirements, that he pays to the Board to requisite fees, and that he is otherwise qualified, and remains qualified to practice law in the State of Maine.
- Gary M. Prolman?s current suspension from the practice of law shall terminate on July 1, 2016.
- At any time after that date, he may be reinstated to the active practice of law, upon the Board of Overseers of the Bar determining that he qualifies for reinstatement by: (a) demonstrating compliance with the continuing legal education prerequisites for reinstatement; (b) paying the requisite fees necessary for reinstatement to the active practice of law; and (c) complying with any other requirements for reinstatement specified in the Maine Bar Rules.
- Reinstatement, and continuation of active practice of law is conditioned on Gary M. Prolman?s:
- Compliance with all the terms and conditions of his federal sentence and community release.
- Continued engagement in substance abuse counseling and treatment, to the satisfaction of the Board of Overseers of the Bar, for a period of at least four years after the termination of any supervision pursuant to his federal sentence and community release.
- No excessive consumption of alcoholic beverages, and no possession or consumption of marijuana or illegal drugs, with this condition subject to monitoring and testing as determined by the Board of Overseers of the Bar, with Prolman to pay a reasonable fee for Board?s monitoring and testing activities. If Prolman and the Board are unable to agree on a monitoring, testing and fee payment program, and such cannot be arranged through the Maine Assistance Program, the parties shall return to Court for further direction.
- Continued compliance with the terms and conditions stated in the Maine Bar Rules and the Maine Rules of Professional Conduct for a person to continue in active practice in the State of Maine.
- Secure the professional files, client property and client data of Attorney Jerabek;
- obtain access to Attorney Jerabek?s post office boxes (if any) to secure any law office or legal mail; and access to any e-mail accounts which are associated with Attorney Jerabek?s law practice;
- obtain and use at the Receivers? discretion, all computer hardware, software and digital files, user names and passwords associated with Mr. Jerabek?s law practice;
- obtain signatory authority over any IOLTA and other bank accounts the law practice maintained; reconcile any IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with any bookkeeper or accountant of Mr. Jerabek;
- prudently access and utilize Attorney Jerabek?s IOLTA (if any) and operating accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Jerabek pursuant to M. R. Prof. Cond. 1.6. Attorney Beardsley is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Jerabek provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of either Ms. Beardsley as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c); and
- submit to the Court a record of hours worked and disbursements made in the event payment of legal fees at the State court appointment rate, if such compensation is requested. The assets of the law office of Attorney Jerabek shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Jerabek).
- Sixty (60) days prior to his resumption practice in Maine, Attorney Travis shall give notice to Bar Counsel and any attorney then representing him. Following such notice, the parties shall attempt to select an agreed-upon Maine attorney to monitor Travis?s practice in Maine.
- Attorney Travis shall meet with the Monitor at scheduled times, consistent with the Monitor?s directives. The meetings shall initially occur on a monthly basis, unless the Monitor subsequently determines that more or less frequent meetings are appropriate.
- Any costs or fees associated with the Monitor?s service shall be borne by Attorney Travis. This monitoring provision is intended to conclude following twelve months of such supervision.
- Within thirty (30) days of returning to practice in Maine, Attorney Travis shall meet with the Maine Assistance Program for Lawyers and Judges (MAP) and remain in compliance with any contract he executes unless the MAP Director discharges him from the program.
- In the event of said discharge, Attorney Travis or his counsel shall notify the Monitor and Bar Counsel.
- Attorney Travis and the Monitor shall develop a ?probation plan? which includes but is not limited to the Monitor?s review of Travis? office practice and procedures.
- Attorney Travis acknowledges that the Monitor shall have the right to withdraw and terminate his/her probationary services at any time for any reason he/she deems necessary. If the Monitor intends to do so, he/she shall notify Bar Counsel, Attorney Travis and his counsel, Attorney Walter McKee, of such withdrawal. Thereafter, this matter may then be scheduled for further hearing as deemed appropriate by a Grievance Commission Panel or the Court.
- If any aspect of the probationary process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, the Monitor may adopt any one of the following courses with the proposed result:
- The Monitor ceases to act as probation attorney and a potential conflict is avoided.
- The Monitor continues as the probation attorney, but totally excludes Attorney Travis?s client?s matter from the process, so that no conflict is deemed to exist.
- The Monitor continues as probation attorney, but withdraws from the conflicted matter.
- The Monitor continues as probation attorney and obligates Attorney Travis not to participate in the matter and to promptly refer his/her client to successor counsel or the Lawyer Referral Service.
- The Monitor shall have the right to contact clerks of court, judges, or opposing counsel to monitor Attorney Travis?s compliance with his professional obligations.
- Likewise, if the Monitor determines that Attorney Travis should refrain from accepting particular cases or otherwise expanding his practice, the Monitor shall inform Attorney Travis of that fact. Attorney Travis shall then follow the Monitor?s directive to refrain or limit his acceptance of such cases, absent Bar Counsel?s, the Grievance Commission?s (or the Court?s) order to the contrary.
- The Monitor shall initiate no contact with any of Attorney Travis?s clients. The Monitor?s communications in the performance of his/her duties shall be with Attorney Travis, Bar Counsel, Attorney McKee and other persons referenced above. However, if any clients of Attorney Travis make contact with the Monitor (with concerns about Attorney Travis) those clients should be referred to Bar Counsel?s office.
- The Monitor?s probation and monitoring of Attorney Travis?s practice shall not be deemed to create an attorney-client relationship between Attorney Travis and the Monitor or between the Monitor and Attorney Travis?s clients. Specifically, the Monitor shall be deemed not to represent Attorney Travis or any of Attorney Travis?s clients or to be employed by them in any capacity and the Monitor shall not have any responsibility of any nature to any of those clients. Moreover, the attorney-client privilege shall not apply to the Monitor?s supervision of Attorney Travis?s practice, and the Monitor shall be immune from any civil liability to Attorney Travis or any of Attorney Travis?s clients.
- The Monitor shall have the authority to review and examine any of Attorney Travis?s files, except those in which the Monitor might have adverse interests under paragraph 5. In that event, the Monitor shall notify Bar Counsel who may then develop an alternative means of file review.
- Attorney Travis shall prepare and present to the Monitor two weeks in advance of their first meeting a list of all his current clients, showing each pending client?s matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Attorney Travis shall prepare and present that information to the Monitor at least one week in advance of the meeting.
- Within ninety (90) days, Attorney Travis with the assistance of the Monitor shall establish a method of objectively identifying any delinquent client matters or other matters which have proven challenging for Attorney Travis to manage. Within this time period Attorney Travis shall also establish and institute internal checks and controls to make his practice appropriately responsible to the needs of his clients and to the courts.
- The Monitor shall file a confidential report with Bar Counsel every four months or sooner if he/she deems it necessary. The Report shall be copied to counsel for Attorney Travis and shall cover at least the following subjects:
- measures Attorney Travis has taken to avoid problematic interactions with his clients, opposing counsel/litigants and any others related to his practice of law.
- a description of any client matter identified as delinquent or problematic;
- any professional assistance the Monitor has provided to Attorney Travis.
- The Monitor shall have the duty to report to Bar Counsel any apparent or actual professional misconduct by Attorney Travis of which he/she becomes aware. Likewise, the Monitor shall report to Bar Counsel any lack of cooperation by Attorney Travis with the terms of this Decision.
- Michael A. Wiers, Receiver of the law practice of Dale F. Thistle, has taken all reasonable steps to discharge the obligations as Receiver, to return all client files, and to marshal all funds in Thistle's operating and trust accounts.
- The Board is able to maintain in storage those client files that have not yet been retrieved by Thistle's former clients. All files may be securely destroyed April 14, 2022, or six years from the last activity in each individual file, whichever date is earlier.
- The Overseers shall maintain a record of the costs for storage and maintenance of the client files. All costs incurred by the Overseers in the retention, storage, maintenance and destruction of the files shall be borne by Dale F. Thistle.
- The Receiver shall deliver the contents of the safe deposit box to the Board. Thistle shall present any evidence of ownership of the coins and stamps to the Board on or before May 16, 2016. If Thistle claims that the coins and stamps are his property or the property of a client, the Board shall notify the Court, and the Court will schedule a hearing to determine the disposition of the coins and stamps. If Thistle does not claim that the coins and stamps are his property, and if no client claims that the coins and stamps are his or her property on or before April 14, 2022, the Board shall deliver the coins and stamps to the Treasurer of the State of Maine for disposition under the Uniform Unclaimed Property Act, 33 M.R.S. § 1351 et seq.
- The Receiver shall deliver all funds, whether from IOLTA or general accounts, to the Board. The Board shall deliver the funds to the Lawyers' Fund for Client Protection. The Lawyers' Fund for Client Protection, pursuant to the rules which govern it, may pay claims or apply the funds towards the amounts owed by Thistle to the Fund. The Court acknowledges the valuable service Michael Wiers has performed thanks him for his generous efforts and extends its sincere appreciation for agreeing to serve.
- Michael A. Wiers, Esq., is discharged as Receiver of the law practice of Dale F. Thistle, effective immediately.
- The Receiver is authorized to retain the office computers and servers currently in his possession. Should he not wish to retain and use those computers, they shall be delivered to the Board, which may retain or dispose of the computers at its discretion.
- Mr. Thistle is personally responsible for repayment of any outstanding debts in his name, and is personally responsible for reimbursing the Lawyers' Fund for Client Protection for all sums it has paid or does pay to his former clients. Further, Dale F. Thistle must reimburse the Lawyers' Fund for Client Protection for expenses it has incurred in connection with claims of his former clients.
- Kurt E. Klebe, Esq. is discharged as Receiver of the law practice of suspended attorney David E. Hunt.
- The Stipulation and Order, dated May 4, 2012, remains in full force and effect, and the firm of Verrill Dana, LLP is the successor in interest to the law practice of suspended attorney David E. Hunt for the purpose of exercising the authority of Mr. Hunt to remove any fiduciaries and appoint any successor fiduciaries.
- Kurt E. Klebe, Esq. and the firm of Verrill Dana, LLP as Attorney Klebe's successor shall act as primary file custodian of the unclaimed client files of suspended attorney David E. Hunt. The files shall remain inventoried and accessible in the event any client seeks to retrieve his/her/its file. The files shall be retained or securely destroyed consistent with the Maine Rules of Professional Conduct. Attorney Klebe, and Verrill Dana, LLP as his successor, shall be deemed to be acting on behalf of the Board of Overseers of the Bar as custodian of the client files of Mr. Hunt's practice.
- Any IOLTA accounts of the suspended attorney David E. Hunt held by Verrill Dana, LLP shall be closed out within 14 days of this Order. Any unclaimed IOLTA funds shall be transmitted to the Board of Overseers of the Bar, which shall apply such funds to the amount owed by Mr. Hunt to the Board of Overseers of the Bar pursuant to former Maine Bar Rule 7.3(f)(1)(vii).
- Kurt E. Klebe, Esq. is entitled to reasonable compensation for his services as Receiver of the law practice of suspended attorney David E. Hunt of $5,309.00 as of March 28, 2016, plus reimbursement of the direct expenses incurred while serving as Receiver of the law practice of suspended attorney David E. Hunt of $778.65 as of March 28, 2016.
- Kurt E. Klebe, Esq. shall accept as partial satisfaction of the Receiver's services such additional amounts to be paid from such additional sources as the Court shall determine.
- Before May 31, 2016, Attorney Lavi shall:
- Watch or listen to the recording of the December 7, 2012 "Sole Practitioner CLE" of the Board of Overseers of the Bar and Maine State Bar Association, and shall so certify to monitor MacLean (see Section 4 below) that he has done so, provided that the recording is made available to him by the Board of Overseers of the Bar or the Maine State Bar Association.
- Meet or exceed the roster requirements of the Maine Commission on Indigent Legal Service (MCILS), regardless of whether he may elect to become re-rostered with MCILS;
- Execute a contract with the Maine Assistance Program (MAP), focused on office practice management issues and any other issues as may be directed by MAP, and shall execute appropriate releases allowing MAP's Director to confirm to Bar Counsel that Attorney Lavi is in fact complying with that MAP contract; and
- Have included as an additional requirement in that MAP contract that he shall participate in dialectical behavioral training (DBT) and/or cognitive behavioral training (CBT).
- On or before June 1, 2016, Attorney Lavi shall join the American Bar Association (ABA) list serve of "solosez;"
- On or before June 1, 2016, Attorney Lavi shall execute a release(s) allowing Bar Counsel to confirm his attendance and receipt of any counseling services he receives during that two-year suspension period;
- During that period of his suspended suspension, Attorney Lavi's practice will be overseen and supervised by a monitor, specifically Attorney Christopher K. MacLean of Camden, Maine, subject to the conditions of a Monitoring Order, as approved and incorporated into this Order. In that monitoring process, Attorney MacLean will also incorporate and use assistance from Attorney Jeremy Pratt, also of Camden, as deemed necessary and appropriate;
- When he is allowed and authorized to practice law, Attorney Lavi shall engage in a "limited practice" comprising only child protection, criminal, and family matters. And, even within those categories, he shall undertake no financially complicated cases. Upon appropriate motion and resulting order of the Court, Attorney Lavi may expand his practice beyond those three categories, only as may be so ordered on a case-by-case basis.
- Attorney Lavi shall have monitor Attorney MacLean screen and review each family matter that Attorney Lavi initiates or accepts to undertake, or already has pending as of June 1, 2016;
- On or before August 1, 2016, Attorney Lavi shall participate in at least six hours of live CLE credit hours concerning office practice management;
- Attorney Lavi shall attend a live iteration of any similar sole practitioner or related practice management CLE that is presented by the Board of Overseers and/or MSBA through May 2, 2018; and
- At least every four weeks, commencing during the week of June 6, 2016, Attorney Lavi shall contact Bar Counsel Davis directly by telephone to confirm the status of any or all of the above requirements and to answer any other related questions concerning his practice management and related Issues, as directed by Bar Counsel.
- Secure the professional files, client property and client data of Attorney Dawson;
- obtain access to Attorney Dawson's post office boxes (if any) to secure any law office or legal mail; and access to any e-mail accounts which are associated with Attorney Dawson's law practice;
- obtain and use at the Receivers' discretion, all computer hardware, software and digital files, user names and passwords associated with Mr. Dawson's law practice;
- obtain signatory authority over any IOLTA and other bank accounts the law practice maintained;
- reconcile any IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with any bookkeeper or accountant of Mr. Dawson;
- prudently access and utilize Attorney Dawson's IOLTA (if any) and operating accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Dawson pursuant to M. R. Prof. Cond. 1.6. Attorneys Sanford and Noble are authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow either of them, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Dawson provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receivers' employment by the client. A client's retention of either Mr. Sanford or Ms. Noble as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c); and
- submit to the Court a record of hours worked and disbursements made in the event payment of legal fees at the State court appointment rate, if such compensation is requested. The assets of the law office of Attorney Dawson shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receivers may elect to serve in a pro bono capacity or be compensated from another source.
- Upon motion of Paul Chaiken, Special Bar Counsel to the Maine Board of Bar Overseers, the Court appointed Jane Makela, Esq., as Receiver of the law practice of Cynthia J. Dresden, Esq. for the purpose of obtaining possession of files belonging to Cynthia J. Dresden, Esq.'s clients, securing funds held in Cynthia J. Dresden, Esq.'s operating and trust accounts, obtaining Cynthia J. Dresden, Esq.'s trust account records, and protecting the interests of the clients and/or former clients of Cynthia J. Dresden, Esq.
- Jane Makela, Esq., Receiver of the law practice of Cynthia J. Dresden, Esq., has taken necessary and reasonable steps to fulfill her obligations as Receiver of the law practice of Cynthia J. Dresden, Esq. She has returned or attempted to return all client files to their rightful owners. She has secured funds held in Cynthia J. Dresden, Esq.'s operating and trust accounts and has identified the persons to whom those funds belong.
- Jane Makela, Esq. has reviewed Cynthia J. Dresden, Esq.'s clients' files. She has generated an inventory of the client files and has provided that inventory to Special Bar Counsel.
- Jane Makela, Esq. has distributed files to a significant number of clients and/or former clients of Cynthia J. Dresden, Esq. The Receiver has returned, where possible, all active client files to the respective clients. A list of the files that have been returned to Cynthia J. Dresden, Esq.'s clients has been given to Special Bar Counsel.
- A number of Cynthia J. Dresden, Esq.'s clients, have not picked up their files, despite Receiver's reasonable efforts to provide them notice that they should do so.
- Some disposition needs to be made of the remaining files of Cynthia J. Dresden, Esq.'s former clients. The Board of Overseers of the Bar is best suited to arrange for secure retention and then secure destruction of these files.
- The Receiver has disbursed all funds from any trust accounts held by Cynthia J. Dresden, Esq. to the appropriate persons, as is set forth in the Receiver's Report. An accounting of said disbursements has been provided to Special Bar Counsel.
- Jane Makela, Esq. and Jennifer Atkinson, her assistant for purposes of this Receivership, have not been compensated for the time they have devoted to Receiver duties. They seek no compensation for their work. As-part of the office closing, they were given used equipment and books by the Personal Representative of the Estate of Cynthia J. Dresden.
- Jane Makela, Esq., and Jennifer Atkinson are entitled to recover costs for performing Receiver duties and delivering files to clients, those costs being mileage reimbursement for the multiple trips to the law office of Cynthia J. Dresden, and delivery of files to the former clients.
- Jane Makela, Esq., Receiver of the law practice of Cynthia J. Dresden, Esq., has taken all reasonable steps to discharge her obligations as Receiver of the law practice of Cynthia J. Dresden, Esq., to return all client files, to arrange for the secure retention and eventual destruction of those client files, and to disburse all funds in Cynthia J. Dresden, Esq.'s operating and trust accounts.
- Jane Makela, Esq., is authorized to deliver the remaining files to the Board of Overseers of the Bar, which entity shall arrange for the secure retention of the files and eventual secure destruction of the files in January 2024.
- The actions of Jane Makela, as Receiver of the law practice of Cynthia J. Dresden, as taken or proposed in the Report of the Receiver, are approved, inter alia, the disposition of the client files, disposition of IOLTA funds and disposition of general operating account funds, and the disposition of office equipment. Jane Makela, Esq., and Jennifer Atkinson shall be reimbursed for their mileage expenses as set forth in the Report.
- Jane Makela, Esq. is discharged as Receiver of the law practice of Cynthia J. Dresden, Esq. Jennifer Atkinson is similarly relieved of responsibilities in connection with the concluding of the law practice of Cynthia J. Dresden, Esq.
- The Court extends it gratitude to Ms. Makela and Ms. Atkinson for their considerable efforts in protecting the clients of and closing the law office of Cynthia J. Dresden, Esq.
- On August 3, 2005 Ms. Bretz signed a contingency fee agreement with the late John Holder, Esq. which provided for payment to Attorney Holder of 33.3% of all past, present and future disability payments recovered by Ms. Bretz from Unum Provident Insurance as a result of his representation of her.
- Attorney Holder negotiated a settlement agreement with Unum Provident Insurance, resulting in the awarding of disability payments to Ms. Bretz.
- Pursuant to the Contingency Fee Agreement, all payments from Unum Provident Insurance were mailed to the Holder & Grover law firm and deposited in its Clients' Trust Account. Subsequently, 66.7% of the amount received was disbursed directly to Ms. Bretz. The remaining 33.3% of the payments were paid to Holder & Grover as its fee.
- Since the time of Attorney Holder's death in May of 2012, Holder & Grover has continued to receive payments as outlined above. The payments were disbursed as outlined above with 66.7% paid directly to Ms. Bretz and 33.3% being paid to Holder & Grover as its fee.
- Although the original agreement is silent as to Holder & Grover continuing to represent Ms. Bretz with regard to all matters pertaining to the disability payments, Holder & Grover continued to disburse funds from the insurance company to Ms. Bretz; assisted in obtaining information and tax forms from the insurance company on Ms. Bretz's behalf; and represented Ms. Bretz during any subsequent disability "reviews" conducted by the insurance company.
- All additional representation, as set forth above, was provided to Ms. Bretz voluntarily and was not mandated under the original agreement. Further, such representation was without cost or fees to Ms. Bretz.
- After Attorney Holder's death in May of 2012, the insurance company conducted one disability review of Ms. Bretz in 2013. Attorney Holder's daughter, Attorney Mariah Holder, was employed by the law firm between May of 2012 and November of 2013 to handle the disability review and all other representation needed for Ms. Bretz.
- Between November of 2013 and May of 2014, Attorney Mariah Holder continued to handle representation of the firm's clients on a per diem basis. During the time of her employment by the law firm, Attorney Mariah Holder was responsible for all client representation, including Ms. Bretz's case.
- Between Attorney Mariah Holder's departure from the firm in May of 2014 and January 27, 2015, Attorney Grover did not communicate, or attempt to communicate, with Ms. Bretz regarding the status of her disability case.
- Though Ms. Bretz maintains that the law firm had always provided her tax information and tax forms from the insurance company, Attorney Grover did not contact the insurance company on Ms. Bretz's behalf, or provide Ms. Bretz with tax information and forms for the tax years 2014 and 2015.
- secure the professional files, client property and client data of Attorney McCaa;
- obtain access to Attorney McCaa's post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney McCaa's law practice;
- obtain use of, at the Receivers' discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities m which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with Ms. McCaa's bookkeeper and accountant;
- prudently access and utilize Attorney McCaa's operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Condo 6.5. Any files identified by the Receivers as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney McCaa pursuant to M. R. Prof. Condo 1.6. Attorneys McDaniel and Johnson are authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from their appointment as Receivers, or in conjunction with the sale of the practice pursuant to M. R. Prof. Condo 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow themselves, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney McCaa provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver's employment by the client. A client's retention of either Ms. McDaniel or Mr. Johnson as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- act as Receivers until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c).
- submit to the Court:
a) a report of their actions and the status of the Receivership at six month intervals; and
- secure the professional files, client property and client data of Attorney Hefferan;
- obtain access to Attorney Hefferan?s post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Hefferan?s law practice;
- obtain use of, at the Receiver?s discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with Mr. Hefferan?s bookkeeper and accountant;
- prudently access and utilize Attorney Hefferan?s operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Hefferan pursuant to M. R. Prof. Cond. 1.6. Attorney Barrett is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Hefferan provided that he inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of Mr. Barrett as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c).
- submit to the Court:
- deliver files to Mr. Concannon if he, in a separate proceeding, seeks and is granted reinstatement to active status;
- deliver files to former clients of Mr. Concannon upon proper requests, and
- see to the secure destruction of the unclaimed client files after December 2, 2021, which would be 8 years from the date receivership was ordered.
- William L. Dawson, Jr., Bar # 06887, is disbarred.
- William L. Dawson, Jr. shall reimburse the Board $10,485.66 for its costs incident to this disciplinary proceeding.
- Upon motion of Paul Chaiken, Special Bar Counsel to the Maine Board of Bar Overseers, the Court appointed Anita M. St. Onge, Esq., as Receiver of the law practice of Marilyn E. Stavros, Esq. for the purpose of obtaining possession of files belonging to Marilyn E. Stavros, Esq.'s clients, securing funds held in Marilyn E. Stavros, Esq.'s operating and trust accounts, obtaining Marilyn E. Stavros, Esq.'s trust account records, and protecting the interests of the clients and/or former clients of Marilyn E. Stavros, Esq.
- Anita M. St. Onge, Esq., Receiver of the law practice of Marilyn E. Stavros, Esq., has taken necessary and reasonable steps to fulfill her obligations as Receiver of the law practice of Marilyn E. Stavros, Esq. She has returned or attempted to return all client files to their rightful owners. She has secured funds held in Marilyn E. Stavros, Esq.'s operating and trust accounts and has identified the persons to whom those funds belong.
- Anita M. St. Onge, Esq. has reviewed Marilyn E. Stavros, Esq.'s clients' files. She has generated an inventory of the client files and has provided that inventory to Special Bar Counsel.
- There were no open or current client files.
- Anita M. St. Onge, Esq. has distributed files to a number of wills and powers of attorney to former clients of Marilyn E. Stavros, Esq. A list of the files that have been returned to Marilyn E. Stavros, Esq.'s clients has been given to Special Bar Counsel.
- A number of Marilyn E. Stavros, Esq.'s clients, have not picked up their files or documents, despite the Receiver's reasonable efforts to provide them notice that they should do so.
- Some disposition needs to be made of the remaining files of Marilyn E. Stavros, Esq.'s former clients. The Board of Overseers of the Bar is best suited to arrange for secure retention and then secure destruction of these files.
- The Receiver has reconciled the IOLTA statements. Her accounting appears in her Final Report.
- Anita M. St. Onge, Esq., has been assisted by Claire Julian, Esq. Neither Attorney St. Onge nor Attorney Clair Julian have been compensated for the time they have devoted to Receiver duties. They seek no compensation for their work. Ms. St. Onge seeks reimbursement for out of pocket expenses of $244.49.
- Anita M. St. Onge, Esq., Receiver of the law practice of Marilyn E. Stavros, Esq., has taken all reasonable steps to discharge her obligations as Receiver of the law practice of Marilyn E. Stavros, Esq., to return all client files, to arrange for the secure retention and eventual destruction of those client files, and to reconcile Marilyn E. Stavros, Esq.'s operating and trust accounts.
- Anita M. St. Onge, Esq., is authorized to deliver the remaining files to the Board of Overseers of the Bar, which entity shall arrange for the secure retention of the files and eventual secure destruction of the files in July 2024.
- The actions of Anita M. St. Onge, as Receiver of the law practice of Marilyn E. Stavros, as taken or proposed in the Report of the Receiver, are approved, inter alia, the disposition of the client files and the disposition of IOLTA funds. Anita M. St. Onge, Esq., shall be disburse IOLTA funds as set forth in her Final Report.
- Anita M. St. Onge, Esq. is discharged as Receiver of the law practice of Marilyn E. Stavros, Esq.
- The Court extends it gratitude to Attorneys St. Onge and Julian for their considerable efforts in protecting the clients of and closing the law office of Marilyn E. Stavros, Esq.
- secure the professional files, client property and client data of Attorney Chapman;
- obtain access to Attorney Chapman's post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Chapman's law practice;
- obtain and use, at the Receivers' discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities (including digital media storage facility) in which office or client information and property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office, retrieval of files, or sale of the practice under Maine Rule of Professional Conduct 1.17A;
- prudently access and utilize Attorney Chapman's operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of office staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Condo 6.5. Any files identified by the Receivers as presenting a conflict of interest shall be transferred to Special Bar Counsel at the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Chapman pursuant to M. R. Prof. Condo 1.6. Attorney Wheatley is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Resp. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself to be engaged by any former client of Attorney Chapman provided that he inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receivers' employment by the client. A client's retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of his appointment as a Receiver by this Order;
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32; and
- submit to the Court a semi-annual report of the status of the Receivership, with a record of hours worked and disbursements made. In the event payment of legal fees is requested by Attorney Wheatley, the request for payment shall be calculated at the State court appointment rate. The assets of the law office of Attorney Chapman shall be the first method of compensation to the Receiver, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Chapman).
- Secure the professional files, client funds and file property of the Letourneau law office;
- Obtain signatory authority over all Letourneau law office bank accounts (IOLTA and operating/office accounts);
- Obtain access to Mr. Letourneau's computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and closed client files;
- In cooperation with the Board, make arrangements for retention and storage of client files not retrieved by former clients;
- Advertise in the local newspaper that the office is presently closed and providing clients with an opportunity to retrieve their files from Receiver Attorney Mekonis;
- Notify all courts that Attorney Mekonis will continue to serve as Mr. Letourneau's Receiver until discharged by this Court; and,
- As Receiver, Attorney Mekonis shall access and utilize Mr. Letourneau's operating and IOLTA accounts to prudently and appropriately manage the practice. The Receiver may pay expenses, as he deems appropriate given available funds or anticipated receivables to the law office.
- He failed to appear at a court hearing on November 5, 2015, concerning the status of that representation, based upon a letter filed by Mr. Arif with the Court that raised concerns about the manner of Attorney Napolitano?s handling of Mr. Arif?s matter;
- He failed to request a continuance of that hearing date once he knew he would be unable to attend; and
- He knowingly filed an apparently meritless Motion to Dismiss the charges against Mr. Arif, with that motion having been entirely drafted by Mr. Arif.
- Any costs or fees associated with Attorney Rodway?s service shall be borne by Attorney Napolitano.
- Attorney Rodway shall enter his appearance as Attorney Napolitano?s co-counsel in all criminal client matters as described in and required by the above-referenced Report of Findings and Decision by Grievance Commission Panel B, dated August 25, 2016.
- Attorney Napolitano shall meet with Attorney Rodway to review and prepare such clients? matters consistent with Attorney Rodway?s directives. The meetings shall initially occur on a weekly basis, unless or until Attorney Rodway subsequently determines that more or less frequent meetings are appropriate.
- Attorney Napolitano acknowledges and accepts that Attorney Rodway shall have the right to withdraw and terminate his probationary services at any time for any reason he deems necessary. If Attorney Rodway intends to so withdraw, he shall immediately first notify Bar Counsel J. Scott Davis, Attorney Napolitano and his counsel, Attorney Theodore H. Kirchner, of his intended withdrawal. Thereafter, this matter may then be scheduled for further hearing and/or action as deemed appropriate by Grievance Commission Panel B or the Court.
- If any aspect of the probationary process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, Attorney Rodway may adopt any one of the following courses with the proposed result:
- Attorney Rodway shall have the right to contact clerks of court, judges, or opposing counsel to monitor Attorney Napolitano?s compliance with his professional obligations.
- Likewise, if Attorney Rodway determines that Attorney Napolitano should refrain from accepting particular cases or otherwise expanding his practice, Attorney Rodway shall inform Attorney Napolitano of that fact. Attorney Napolitano shall then follow Attorney Rodway?s directive to refrain or limit his acceptance of such cases, absent this Panel?s (or the Court?s) order to the contrary.
- Attorney Rodway shall have the authority to review and examine Attorney Napolitano?s files in such criminal matters, except those in which Attorney Rodway might have adverse interests under paragraph five (5) above. In that event, Attorney Rodway shall notify Bar Counsel Davis who may then develop an alternative means of file review.
- Attorney Rodway agrees, as soon as practicable, to have Attorney Napolitano establish a method of objectively identifying any delinquent client matters or other matters which have proven challenging for Attorney Napolitano to manage. As a result, as soon as is practicable, Attorney Napolitano shall establish and institute internal checks and controls to make his practice appropriately responsive to the needs of his clients and to the courts, consistent with Attorney Rodway?s directive(s).
- Attorney Rodway shall file a confidential report with the Grievance Commission Clerk every four months or sooner if he deems it necessary. The Report shall be copied to Attorney Kirchner and Bar Counsel Davis and it shall cover at least the following subjects:
- Attorney Rodway shall have the duty to report to Bar Counsel Davis any apparent or actual professional misconduct by Attorney Napolitano of which Attorney Rodway becomes aware. Likewise, Attorney Rodway shall report to Bar Counsel Davis any lack of cooperation by Attorney Napolitano with the terms of this Decision and Mandate.
- Upon review and investigation of any such reports so filed by Attorney Rodway, Bar Counsel Davis shall notify the Grievance Commission Clerk thereof, as appropriate.
- The terms of this Decision and Mandate are effective upon the date of entry on the Grievance Commission?s docket.
- Respondent Peter J. Richard, Jr. of Topsham, Maine was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Mr. Richard was admitted to the Maine bar in 2010 and he is currently subject to an administrative non-disciplinary suspension.
- On October 15, 2O15 Mr. Richard was administratively suspended by the Board for his failure to report CLE credit and his failure to register and pay the fees required by Maine Bar Rules.
- Mr. Richard did not file the affidavit certifying his compliance with Maine Bar Rule 4(k) as required within 30 days after that suspension date.
- The Board sent a letter on December 4, 2015 which notified Mr. Richard of the consequence of his failure to file that required affidavit.
- On January 27, 2016, Bar Counsel docketed a sua sponte grievance complaint against Mr. Richard for to his failure to comply with the affidavit requirements. Mr. Richard failed to respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b).
- On May 17, 2016 a panel of the Grievance Commission reviewed Mr. Richard's actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
- On May 20, 2016, Mr. Richard executed and filed an affidavit indicating that he had not been practicing law, and that he had no actual clients at the time of his administrative suspension in October of 2015.
- Richard A. Foley has been a member of the Maine Bar since 1955. He has no prior disciplinary or sanction record on file with the Board.
- Attorney Foley provided professional services to a client, R.P., since the early 1970s. The services included representation of R.P., together with R.P.?s husband, who died in 2007. Over the years, Attorney Foley served as a ?general counsel? to R.P., advising her with regard to her wills, a variety of real estate matters, and providing general advice to her with regard to her business affairs and estate planning.
- For many years prior to May 2015, R.P. also received professional services from her financial advisor and/or his firm, both of whom are associated with Raymond James Financial Services.
- In mid-2014, R.P. consulted with Attorney Foley regarding a variety of estate planning and financial questions. Part of R.P.?s discussion with Attorney Foley concerned the amount of income she was receiving from her then-current investments.
- As part of his consultation with R.P., Attorney Foley and his client decided that Attorney Foley would conduct a review of her investments. During the fall and early winter of 2014, R.P. discussed with Attorney Foley her thoughts as to the possible transfer of a portion of her assets. That discussion included R.P.?s desire to transfer some of her assets and a portion of her real estate to a man, not related to her, but whom she had known for many years. R.P. reported her desire to benefit him because of assistance he had provided to her over the years.
- Based upon these communications, Attorney Foley provided a variety of advice to R.P., expressing his concerns about the wisdom of her transfer of her assets and also raising questions as to the appropriate management of her investment assets.
- Following those discussions, Attorney Foley sought information and documents from R.P.?s financial advisor and others in order to assist her and provide advice with regard to her finances and estate planning.
- Within that same time frame, Attorney Foley requested documents and specific changes to R.P.?s Raymond James accounts, including a request to delete R.P.?s niece as the P.O.D. on those accounts. The financial advisor complied with the requests for information and he sent Attorney Foley the necessary paperwork to be supplied to R.P. in order to effect the changes to the P.O.D. status.
- The financial advisor informed R.P. in May 2015 that based upon the evolving situation, he felt compelled to no longer service her investment accounts. The Advisor?s letter explaining that decision provided a sixty-day time frame wherein R.P. could seek assistance from another financial advisor or firm, or alternatively, to receive the investment funds via check for deposit at her subsequent convenience.
- Attorney Foley and R.P. discussed her options with regard to the further handling of her investments, as well as a variety of potential real estate transfers and estate matters.
- Thereafter, Attorney Foley arranged to have R.P.?s investments transferred to an online investment account. As part of that process, Attorney Foley assumed responsibility for the account, pursuant to a specific power of attorney (POA) form allowing him to act on R.P.?s behalf in the new investment account.
- Throughout 2014 until early 2015, R.P. consulted with Attorney Foley regarding potential changes in her estate plan and possible transfers of real estate. As referenced earlier herein, Attorney Foley had provided advice with regard to R.P.?s estate planning since at least 1976, and had drafted a number of Wills and related documents for her over time since 1976. Based upon his conversations with R.P., Attorney Foley drafted a new Will for her which he executed on September 24, 2014. That Will provided, among other things, specific bequests to two persons, with the remainder of her estate to be distributed as follows: One third of the remainder to R.P.?s niece, D.W., and Two-thirds of the remainder to the P Family Trust, for the benefit of R.P.?s step-daughter. The bequest to R.P.?s step-daughter was devised as part of a Special Needs Trust for the benefit of that disabled step-daughter. Attorney Foley drafted the Trust document and he and his law partner were named as Trustees. Attorney Foley was also named as Personal Representative and his law partner as Alternate Personal Representative in the 2014 Will.
- Attorney Foley and his Assistant witnessed the 2014 Will.
- A few months prior, in July 2014, Attorney Foley had prepared a ?Financial Durable Power of Attorney? on behalf of R.P., designating Attorney Foley and his law partner as co-agents under that POA. The POA was a so-called ?springing? Power of Attorney and would become effective upon R.P.?s incapacity as determined by a physician, attorney-at-law, judge or other appropriate government official.
- The Financial Durable POA referenced in Paragraph 12 above included, inter alia, the ability of the holders of the POA to create trusts and to make gifts. That power also included the ability to make trusts and gifts that would benefit others including the holders of the POA.
- Although the parties disagree about whether Attorney Foley informed third parties that he was R.P.?s agent under the POA, it is undisputed that the Financial Durable POA never became effective since R.P. was not declared incompetent to handle her financial affairs by a physician or anyone else. Moreover, Attorney Foley created no additional Trusts and made no transfers to anyone utilizing the Durable POA. Likewise, Attorney Foley reports that at no time did he make any transfer of any assets of R.P. which were to the benefit of Attorney Foley and/or persons associated with him.
- From 2007 through 2015, Attorney Foley charged R.P. for legal services that totaled $8,930.75. He received payments from R.P. on nine separate occasions through March of 2015 totaling $5,809.00, and as of August 4, 2015 he had an open balance from R.P. of $3,304.35. R.P. discharged Attorney Foley on or about August 1, 2015.
- Attorney Foley did not, at any time, have a written Fee Agreement with R.P. Since 1976 he has billed her on a roughly monthly basis over time, and those statements reflected legal services provided and increases in his hourly rate.
- Attorney Foley, as her general counsel, charged R.P. for the time he spent consulting with her and assisting her with her financial affairs. From the time that R.P.?s financial advisor terminated her account in May of 2015 until Attorney Foley?s services ended, Attorney Foley spent approximately 13 hours providing services relating to R.P.?s investments. He billed that time at $175 per hour, resulting in charges of $2,275.00 for those services.
- Attorney Foley acknowledges that while he discussed the Financial Durable Power of Attorney with R.P. and provided her a copy, in hindsight he did not fully and completely describe the breadth of the powers granted to him, including the breadth of the powers that would allow him to self-gift. He agrees that his failure to do so constituted a per se violation of M. R. Prof. Conduct 1.8(c).
- Attorney Foley has represented that he believes his actions, regardless of the terms of the Financial Durable POA, were governed by his fiduciary and ethical obligations under the Maine Rules of Professional Conduct as well as by 18-A M.R.S. ? 5914(a) which limits the agent acting pursuant to a POA to serve as a fiduciary to the Grantor of the Power of Attorney and to act in good faith and in accordance with the Grantor?s reasonable expectations.
- Attorney Foley acknowledges that he is bound by Rules 1.7 and 1.8, (conflicts of interests) and specifically the portions of those Rules dealing with his transactions that could implicate Attorney Foley?s own personal interests in a way that is adverse to those of R.P., his client. While Attorney Foley did not solicit a gift from his client or prepare an instrument giving the lawyer a substantial gift, nonetheless the POA could be construed to have allowed Attorney Foley the power to make such a gift once the POA became effective. In so doing, Attorney Foley did not fully disclose and transmit in writing to R.P. the powers and transactions that she was granting him in a manner that could be reasonably understood by her, nor did he advise her of the desirability or opportunity for her to seek independent legal counsel with regard to that transfer. Attorney Foley?s failure in that regard constituted a violation of M. R. Prof. Conduct 1.8(a).
- Attorney Foley also concedes that he relied upon his practice of sending periodic bills reflecting his services to R.P., but that he did not explain, specifically orally or in writing to R.P., the entire scope of his representation and the basis for his fees and expenses, except to the extent reflected in his bills. More particularly, he did not specifically advise R.P. that he would be charging her for the professional services he provided her with regard to her investments at his regular hourly rate. Attorney Foley agrees that his failure to do so constituted a violation of M. R. Prof. Conduct 1.2(a), 1.4 and 1.5(a)(b).
- secure the professional files, client property and client data of Attorney Hardy;
- obtain access to Attorney Hardy?s post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Hardy?s law practice;
- obtain exclusive use of all computer hardware, software, applications, programs and digital files, user names and passwords for each program, application or service which has been used by the law office of Christopher D. Hardy;
- obtain signatory authority over IOLTA and all other bank or fiduciary accounts the law practice maintained including the general or operating account for the law office;
- reconcile IOLTA and all other accounts associated with the office, and then report the results of the reconciliations to Special Bar Counsel;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with the bookkeeper, accountant and/or and financial advisor of the law office;
- prudently access and utilize Attorney Hardy?s operating, general and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel of the Overseers of the Bar, or his designee;
- preserve and protect confidential information of the clients of Attorney Hardy pursuant to M. R. Prof. Cond. 1.6. Attorney Bifulco is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Hardy provided that he inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of Mr. Bifulco as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c).
- submit to the Court:
- Upon motion of Paul Chaiken, Special Bar Counsel to the Maine Board of Bar Overseers, the Court appointed Anthony W. Beardsley, Esq., as Receiver of the law practice of John S. Jerabek, Esq. for the purpose of obtaining possession of files belonging to the clients and former clients of John S. Jerabek, securing funds held in John S. Jerabek's operating and trust accounts, obtaining John S. Jerabek's trust account records, and protecting the interests of the clients and/or former clients of John S. Jerabek, Esq.
- Anthony W. Beardsley, Esq., Receiver of the law practice of John S. Jerabek, Esq., has taken necessary and reasonable steps to fulfill his obligations as Receiver of the law practice of John S. Jerabek, Esq. He has returned or attempted to return client files to their rightful owners. He determined John S. Jerabek was holding no client funds in any IOLTA or trust account.
- Anthony W. Beardsley, Esq. has reviewed John S. Jerabek, Esq.'s client files. He has generated an inventory of the client files and has provided that inventory to Special Bar Counsel.
- There were no open or current client files.
- A number of John S. Jerabek, Esq.'s clients, have not picked up their files or documents, despite the Receiver's reasonable efforts to provide them notice that they should do so.
- Some disposition needs to be made of the remaining files of John S. Jerabek, Esq. 's former clients. The plan proposed by the Receiver in his Petition for Discharge appropriately addresses retention and secure destruction of those files.
- Anthony W. Beardsley seeks no compensation for his work.
- Anthony W. Beardsley, Esq., Receiver of the law practice of John S. Jerabek, Esq., has taken all reasonable steps to discharge his obligations as Receiver of the law practice of John S. Jerabek, Esq., to return all client files, to arrange for the secure retention and eventual destruction of those client files, and to confirm that John S. Jerabek held no unearned client funds at the time of his death.
- Anthony W. Beardsley, Esq., has submitted an appropriate plan for the secure retention and destruction of the files of former clients of John S. Jerabek.
- The actions of Anthony W. Beardsley, as Receiver of the law practice of John S. Jerabek, as taken or proposed in the Report of the Receiver, are approved, inter alia, the disposition of the client files;
- Anthony W. Beardsley, Esq. is discharged as Receiver of the law practice of John S. Jerabek, Esq.
- The Court extends it gratitude to Attorney Beardsley for his efforts in protecting the clients of and closing the law office of John S. Jerabek, Esq.
- The Panel finds that Attorney Shusta's failure to explain adequately the Contingency Fee Agreement to Mr. Belanger was a violation of Rule 1.4(b). Attorney Shusta had a duty to communicate with Mr. Belanger to the extent reasonably necessary to permit him to make informed decisions regarding the representation. Attorney Shusta decided to have Paralegal JP (who was new in his office and new to personal injury claims) obtain Mr. Belanger's signature on the Contingency Fee Agreement. Attorney Shusta testified that he trained Paralegal JP to be thorough and to let him know if clients had questions about documents, but the record is clear that no one explained the Agreement to Mr. Belanger and that he did not understand the Contingency Fee Agreement. Although Attorney Shusta testified that "everyone knows" that personal injury contingency fee agreements are for one third of the gross amount, it is clear that his client, Mr. Belanger, did not understand that important fact and it is clear that it was not explained to him by Attorney Shusta or Paralegal JP. Attorney Shusta testified that some clients have different needs and that not all clients are the same. Further explanation was clearly necessary for Mr. Belanger.
Mr. Belanger testified that the attorney who is currently representing him on his personal injury claim sat down with him and explained each section of the Contingency Fee Agreement he signed. Likewise, Michael Welch, the expert witness called by Attorney Shusta, testified that he explains Contingency Fee Agreements paragraph by paragraph with his clients, giving examples to help them understand. He testified that paralegals in his office have over 20 years of experience but do not routinely explain Contingency Fee Agreements to clients. He testified that he would reschedule an appointment rather than have a paralegal have the initial meeting with a client at which a Contingency Fee Agreement would be explained.
Attorney Shusta testified that he now meets personally with prospective clients, completes the intake form himself, completes all lines on the Contingency Fee Agreement, and gives a much more in depth explanation of Contingency Fee Agreements, making sure that clients understand the gross amount concept. He testified that he wants to make sure that there is not going to be a misunderstanding. The Panel finds that it was a violation to fail to explain the terms of the Agreement so that Mr. Belanger could make informed decisions.
- The Panel also finds that Attorney Shusta's communication with Mr. Belanger regarding the payment of medical bills and the amount of the medical bills was in violation of Rule 1.4. Having his medical bills paid was a very important objective for Mr. Belanger. He clearly believed that his medical bills were being ?taken care of? by Attorney Shusta. Mr. Belanger testified that Attorney Shusta did not provide him with a comprehensive list of his medical bills so that he had no idea that they totaled over $12,000 at the time of their meeting to effectuate the settlement. Although medical bills were referenced in the letter demanding $105,000 from Progressive Insurance (a copy of which was sent to Mr. Belanger), he did not have the Medical Bill Index which was enclosed in the letter to the insurance company. This information was necessary for him to be able to evaluate the settlement offer. Attorney Shusta testified that Mr. Belanger could have asked for a breakdown of medical expenses. When Attorney Shusta and Mr. Belanger met to sign a release, Mr. Belanger was unaware that his medical bills had not been paid, unaware that he would be responsible to pay those bills from his share of the settlement and unaware of what he would actually receive from the settlement (if anything). The evidence does not indicate that Attorney Shusta explained to Mr. Belanger how much he could reasonably expect to reduce the medical bills through negotiation. The Panel finds it was a Rule violation to fail to keep Mr. Belanger informed about these issues.
- The Panel also finds that Attorney Shusta submitted an Affidavit to the Board of Overseers of the Bar that he later learned to be untrue and that he failed to notify the Board that he had submitted a false Affidavit in violation of Rule 8.1(b). Attorney Shusta testified that it became apparent to him in September of 2015 that Paralegal JP had altered the contingency fee agreement after it was signed by their client. In May of 2015, he had dictated and submitted an Affidavit signed under oath by Paralegal JP indicating that what she had written on the agreement must ?have somehow been deleted from the agreement Mr. Belanger submitted??
- For a period of at least two (2) years, Attorney Carey shall be jointly monitored in his practice by Attorneys Verne Paradie, Nicholas Worden and Heather Walker. If those attorneys are unable to continue their service as the Monitors, then that role shall be undertaken by mutually agreed-upon third parties or as otherwise selected and directed by the Court.
- Any costs or fees associated with the Monitors? supervision shall be borne by Attorney Carey.
- Attorney Carey will meet with the Monitor(s) at their calling and convenience, on a bi-weekly basis, unless the Monitors subsequently determine that more or less frequent meetings are appropriate.
- The Monitors shall have the right to withdraw and terminate their services at any time for any reason they deem necessary. If they intend to do so, they shall provide written notice to Bar Counsel of such withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
- If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, the Monitors may adopt any one of the following courses with the proposed result:
- Monitors cease to act as monitor(s) and a potential conflict is avoided.
- Monitors continue to serve as the Monitor(s), but totally exclude Attorney Carey?s client?s matter from the supervision process, so that no conflict is deemed to exist.
- Monitors continue to serve as the Monitor(s), but withdraw from the conflicted matter.
- The Monitors shall have the right to contact clerks of court, judges, or opposing counsel to monitor and confirm Attorney Carey?s compliance with his professional obligations.
- Likewise, if the Monitors determine that Attorney Carey should refrain from expanding his practice areas, the Monitors shall inform Attorney Carey of that fact. Attorney Carey shall then follow the Monitors? directive to refrain or limit his acceptance of such cases, absent this Court?s order to the contrary.
- The Monitors shall not initiate contact with any of Attorney Carey?s clients. The Monitors only communications in the performance of their monitoring duties shall be with Attorney Carey or other persons contemplated by this decision, including the Maine Assistance Program for Lawyers and Judges (MAP) and Bar Counsel?s office. However, if any clients contact the Monitors with concerns about Attorney Carey?s conduct, then they should be referred to Bar Counsel.
- The Monitors? participation in the disposition of Attorney Carey?s disciplinary case and monitoring of Attorney Carey?s practice shall be deemed not to create an attorney-client relationship between Attorney Carey and the Monitors or between the Monitors and Attorney Carey?s clients. Specifically, the Monitors shall be deemed not to represent Attorney Carey or any of Attorney Carey?s clients or to be employed by them in any capacity and the Monitors shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to the Monitors? supervision of Attorney Carey?s practice, and the Monitors shall be immune from any civil liability (including without limitation, any liability for defamation) to Attorney Carey or any of Attorney Carey?s clients.
- The Monitors shall have the authority to review and examine any of Attorney Carey?s files, except those in which the Monitors might have adverse interests under paragraphs 4 or 5. In that event, the Monitors shall notify Bar Counsel who may then develop an alternative means of file review.
- Attorney Carey shall prepare and present to the Monitors two weeks in advance of their first meeting a list of all his current clients, showing each pending client?s matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Attorney Carey shall prepare and present that information to the Monitors at least three days in advance of the meeting.
- The Monitors will, as soon as practicable, have Attorney Carey establish a method of objectively identifying problematic or delinquent client matters and have Attorney Carey institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- As stated in the Court?s Order & Decision, it is allowed and expected that Attorney Carey shall incorporate and use assistance from the Monitors as is deemed necessary and appropriate.
- The Monitors shall file a confidential report with the Court every three months or sooner if the Court deems it necessary. The Report shall be copied to Bar Counsel, and shall cover at least the following subjects:
- Measures Attorney Carey has taken to avoid delinquencies or adverse court action;
- A description of any client matter identified as delinquent or problematic;
- Any professional assistance the Monitors have provided to Attorney Carey;
- Attorney Carey?s use of and appropriate monthly reconciliation of his IOLTA Account(s); and
- A summary of relevant status updates provided by court staff and members of the bar, as referenced in ¶6.
- The Monitors shall have the duty to file a written report with the Court and Bar Counsel concerning any apparent or actual professional misconduct by Attorney Carey of which the Monitors become aware.
- The Monitors shall provide a written report to the Court and Bar Counsel concerning any lack of cooperation by Attorney Carey with the terms of this Order.
- Under the supervision and guidance of the Monitors, Attorney Carey shall ensure that his IOLTA account is reconciled each month, utilizing the court-approved forms provided by the Board. At any time the Monitors or Bar Counsel deem it necessary to perform an audit of Attorney Carey?s IOLTA account, Carey shall cooperate with such an audit. The Court and Bar Counsel shall be provided with all reconciliation and audit reports.
- Within thirty (30) days of the date of this Order, Attorney Carey shall commence treatment with a licensed Maine psychiatrist. Attorney Carey shall provide the name and address of that psychiatrist (and any other professionals he is referred to) to MAP and to Bar Counsel. He shall instruct the psychiatrist to consult with the MAP Director to address any concerns identified by the Director. Attorney Carey shall follow the recommendations of the psychiatrist and any other treatment providers he may subsequently be referred to. Attorney Carey shall receive consistent treatment from those providers to promote continuity of care. MAP shall pay the cost(s) of such treatments up to a maximum of $2,000. In the event there is a change in provider(s), Attorney Carey shall notify MAP and Bar Counsel of such changes.
- Within that same 30-day period Attorney Carey shall meet with the Executive Director of MAP and execute a contract satisfactory to MAP.
- Attorney Carey shall refrain from all criminal conduct and shall report immediately any criminal charges to MAP and to Bar Counsel; he shall further report any convictions arising out of criminal conduct in any jurisdiction.
- Attorney Carey shall report to MAP and Bar Counsel any matters in which he is the subject of any civil protection order, e.g., Protection from Harassment or Protection from Abuse.
- If he has not already done so, Attorney Carey shall designate a Maine attorney to serve as his proxy in the event of any future disability, pursuant to M. Bar R. 1(g)(12).
- Attorney Carey shall report any grievance complaints and disciplinary proceedings and/or sanctions to all jurisdictions where he is admitted.
- During the two year period of his probation and monitoring, Attorney Carey shall attend and participate in at least two live Maine trial practice-oriented Continuing Legal Education (CLE) programs certified by the Board of Overseers. Those programs shall include role-playing and/or Attorney Carey?s active participation in mock trial(s). Evidence of his participation shall be provided to MAP and Bar Counsel within ten (10) days of such completion.
- Likewise, within one year of the date of this Order, Attorney Carey shall engage in at least 3 hours of live CLE concentrated on law office practice management, including proper use of financial accounts and record keeping. This law office management program shall be in addition to the eleven (11) hours of CLE annually required of every Maine attorney under Maine Bar Rule 5(a).
- Attorney Carey shall timely comply with his required annual registration filings and continuing legal education requirements.
- Any verified and/or investigated new complaints concerning conduct that allegedly occurred after the date of this Order, may form the basis for additional disciplinary filings directly before the Supreme Judicial Court under M. Bar R. 13(g).
- Attorney Carey?s violation of any condition enumerated within this Order may result in the Board?s filing a Petition to Terminate the suspended portion of his Suspension Sanction.
- Roberta E. Winchell, Receiver of the law practice of Jay H. Otis, has taken all reasonable steps to discharge the obligations as Receiver of the law practice of Jay H. Otis, to return all client files, and to marshal all funds in Mr. Otis?s operating and trust accounts.
- The Board is able to maintain in storage those client files that have not yet been retrieved by the former clients of Mr. Otis. Those files may be securely destroyed 8 years after last substantive activity in each of those files.
- The Board shall maintain a record of its costs for storage and maintenance of the client files. The retention, storage, maintenance and destruction of the files shall be costs borne by Mr. Otis.
- The Receiver shall deliver all funds, whether from IOLTA or general accounts, to the Board. The Board shall deliver $4,206.00 to the Lawyers? Fund for Client Protection. The Board shall deliver $528.92 to the Receiver to reimburse her for her out of pocket expenses incurred as Receiver. The balance of the funds from the IOLTA or general accounts shall be held by the Board to be applied to any claim made by a former client of Mr. Otis pursuant to the Rules of the Lawyers? Fund for Client Protection, or as further ordered by this Court. If any funds remain after 8 years from the date of this Order, the Board shall submit those funds to the Secretary of State?s Office pursuant to Title 33 Chapter 41, the Unclaimed Property statutes.
- The Receiver has declined to seek monetary compensation for the considerable time she and her staff devoted to the duties as Receiver. The Receiver may retain possession of the file cabinets, book shelves, a floor safe and a copier from Mr. Otis?s office.
- Roberta E. Winchell, Esq., is discharged as Receiver of the law practice of Jay H. Otis, effective immediately.
- The Receiver is authorized to retain the office furniture and equipment currently in her possession.
- Mr. Otis is personally responsible for repayment of any outstanding debts in his name, and is and will be personally responsible for reimbursing the Lawyers? Fund for Client Protection for all sums it has paid or does pay to former clients of Jay H. Otis. Further. As set forth above, the funds from Mr. Otis?s IOLTA and general accounts shall be transferred to the Board of Overseers of the Bar to be applied or disbursed as set forth above.
- The Court acknowledges the valuable service the Receiver performed, thanks her for her generous efforts and extends its sincere appreciation for agreeing to serve.
- Upon motion of then Assistant Bar Counsel Aria Eee, the Court appointed Donald J. Gasink, Esq., as Receiver of the law practice of Donald J. Gasink, Esq. for the purpose of obtaining possession of files belonging to Peter T. Dawson, Esq.'s clients, securing funds held in Peter T. Dawson, Esq.'s operating and trust accounts, obtaining Peter T. Dawson, Esq.'s trust account records, and protecting the interests of the clients and/ or former clients of Peter T. Dawson, Esq.
- Donald Gasink, Esq., Receiver of the law practice of Peter T. Dawson, Esq., has taken necessary and reasonable steps to fulfill his obligations as Receiver of the law practice of Peter T. Dawson, Esq. He has returned or attempted to return all client files to their rightful owners. He has secured funds held in Peter T. Dawson, Esq.'s operating and trust accounts and has identified the persons to whom those funds belong.
- Donald J. Gasink, Esq. has reviewed Peter T. Dawson, Esq.?s clients' files. He has generated an inventory of the client files and has provided that inventory to Special Bar Counsel.
- Donald J. Gasink, Esq. has distributed files to a significant number of clients and/or former clients of Peter T. Dawson, Esq. There were no active client files. A list of the files that have been returned to Peter T. Dawson, Esq.'s clients has been given to Special Bar Counsel.
- A number of Peter T. Dawson, Esq.'s clients, have not picked up their files, despite Receiver's reasonable efforts to provide them notice that they should do so.
- Some disposition needs to be made of the remaining files of Peter T. Dawson, Esq.'s former clients. The Board of Overseers of the Bar is best suited to arrange for secure retention and then secure destruction of these files.
- The Receiver has disbursed all funds from any trust accounts held by Peter T. Dawson, Esq. to the appropriate persons, as is set forth in the Receiver's Report. An accounting of said disbursements has been provided to Special Bar Counsel.
- Donald J. Gasink, Esq. served basically without compensation, but he has been compensated for the time his staff devoted to Receiver du ties.
- Donald J. Gasink, Esq. has recovered costs for performing Receiver duties and delivering files to clients, those costs being publication, postage and shredding of client files.
- Donald J. Gasink, Esq., Receiver of the law practice of Peter T. Dawson, Esq., has taken all reasonable steps to discharge his obligations as Receiver of the law practice of Peter T. Dawson, Esq., to return all client files, to arrange for the secure retention and eventual destruction of those client files, and to disburse all funds in Peter T. Dawson, Esq.'s operating and trust accounts.
- Donald J. Gasink. Esq., is authorized to deliver the remaining files to the Board of Overseers of the Bar, which entity shall arrange for the secure retention of the files and eventual secure destruction of the files in December 2020.
- The actions of Donald J. Gasink, as Receiver of the law practice of Peter T. Dawson, as taken or proposed in the Report of the Receiver, are approved, inter alia, the disposition of the client files, disposition of IOLTA funds and disposition of general operating account funds, and the disposition of office equipment.
- Donald J. Gasink, Esq. is discharged as Receiver of the law practice of Peter T. Dawson Esq.
- The Court extends its gratitude to Mr. Gasink for his considerable efforts in protecting the clients of and closing the law office of Peter T. Dawson, Esq.
- Diane M. Edgecomb was admitted to the Maine Bar on October 15, 1990. For several years prior to 2015 she engaged in a solo law practice in Maine.
- On August 28, 2015 this Supreme Judicial Court entered an Order for Appointment of Limited Receiver as a result of Ms. Edgecomb?s ongoing health problems.
- Attorney Marsha Weeks Traill was appointed Limited Receiver. Since her appointment Attorney Weeks Traill worked with Ms. Edgecomb to wind down the law practice of Ms. Edgecomb.
- Collaborating with Ms. Edgecomb, Attorney Weeks Traill has seen to noticing all of Attorney Edgecomb?s clients that Ms. Edgecomb would no longer be engaged in the practice of law. All active matters were transferred to new counsel. Active and former clients were provided an opportunity to retrieve their file(s) or have them transferred to new counsel. Ms. Edgecomb?s IOLTA and client trust accounts were reconciled and closed, and there are no funds to be disbursed.
- Ms. Edgecomb passed away unexpectedly on September 16, 2016.
- The files which have not been retrieved by clients have been inventoried, with a copy of the inventory having been delivered to Special Bar Counsel at the Overseers of the Bar. Ms. Weeks Trail and the Board of Overseers have determined the files should remain in the custody of Attorney Weeks Traill until retrieved by former clients; or 8 years have passed since the matter was last active, at which time they will be securely destroyed.
- Attorney Weeks Traill does not seek compensation for her work as a Limited Receiver. She does not seek reimbursement for the expenses she incurred while performing her duties as a Limited Receiver.
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects;
- Effective immediately and pursuant to M. Bar R. 26(e), David M. Blumenthal is suspended from the practice of law in Maine for a period of six (6) months, with the execution of that suspension stayed for two (2) years from October 6, 2016, with probationary conditions. That suspension relates to Blumenthal's violations of those portions of Maine's Rules of Professional Conduct that are analogous to the violations found by the Massachusetts Supreme Judicial Court; and
- By analogy, the Maine Rule violations would constitute M. R. Prof. Conduct 1.15(b)(d); 5.3(b); and 8.4(a)(b)(c)(d).
- Upon motion of Paul Chaiken, Special Bar Counsel to the Maine Board of Bar Overseers, the Court appointed Sarah M. McDaniel, Esq., and Bruce R. Johnson, Esq., as Co-Receivers of the law practice of Janet C. McCaa, Esq., for the purpose of obtaining possession of files belonging to Janet C. McCaa, Esq.?s clients, securing funds held in Janet C. McCaa, Esq.?s operating and trust accounts, obtaining Janet C. McCaa, Esq.?s trust account records, and protecting the interests of the clients and/or former clients of Janet C. McCaa, Esq.
- Sarah M. McDaniel, Esq. and Bruce R. Johnson, Esq., as Co-Receivers of the law practice of Janet C. McCaa, Esq., have taken all necessary and reasonable steps to fulfill their obligations as Co-Receivers of the law practice of Janet C. McCaa, Esq. They have returned or attempted to return all client files to their rightful owners. They have secured funds held in Janet C. McCaa, Esq.?s operating and trust accounts and have identified the persons to whom those funds belong.
- Sarah M. McDaniel, Esq. and Bruce R. Johnson, Esq. have reviewed Janet C. McCaa, Esq.?s client files. They have generated an inventory of the client files and have provided that inventory to Special Bar Counsel.
- Janet C. McCaa, Esq. had formally closed her practice on December 31, 2016, but had maintained an office space for other business ventures. One current client file with original estate planning documents was located at her office. This file and original documents were delivered to the client.
- Bruce R. Johnson, Esq. has distributed other original estate planning documents to former clients of Janet C. McCaa, Esq. A list of the files that have been returned to Janet C. McCaa, Esq.?s clients has been given to Special Bar Counsel.
- A number of Janet C. McCaa, Esq.?s former clients have not picked up their files or documents, despite the Co-Receivers? reasonable efforts to provide them notice that they should do so.
- Some disposition needs to be made of the remaining files of Janet C. McCaa, Esq.?s former clients. Bruce R. Johnson, Esq. was a former law practice partner of Janet C. McCaa, Esq. The remaining files of the law practice of Janet C. McCaa, Esq. consist of less than one file cabinet drawer. Johnson & Associates, the law practice of Bruce R. Johnson, Esq., is best suited to arrange for secure retention and then secure destruction of these files.
- The Co- Receivers have reconciled the IOLTA statements. Their findings appear in their Final Report.
- The Co-Receivers have been compensated for the time they have devoted to their duties, as outlined in the Co-Receiver?s Final Report.
- Sarah M. McDaniel, Esq. and Bruce R. Johnson, Esq., as Co-Receivers of the law practice of Janet C. McCaa, Esq., have taken all reasonable steps to discharge their obligations as Co-Receivers of the law practice of Janet C. McCaa, Esq., to return all client files, to arrange for the secure retention and eventual destruction of unclaimed client files, and to reconcile Janet C. McCaa, Esq.?s operating and trust accounts.
- Bruce R. Johnson, Esq., is authorized to retain the remaining files at Johnson & Associates, 469 Main Street, Suite 212, Springvale, Maine 04083 or at such other location on record with the Maine Board of Bar Overseers after this as a subsequent office address, and to arrange for the secure retention of the files and eventual secure destruction of the files in December, 2024.
- The actions of Sarah M. McDaniel, Esq. and Bruce R. Johnson, Esq., Co-Receivers of the law practice of Janet C. McCaa, Esq., as taken or proposed in the Final Report of the Co-Receivers, are approved, including, inter alia, the disposition of the client files and the reconciliation of IOLTA funds.
- Sarah M. McDaniel, Esq. and Bruce R. Johnson, Esq. are discharged as Co-Receivers of the law practice of Janet C. McCaa, Esq.
- The Court extends it gratitude to Attorneys McDaniel and Johnson for their considerable efforts in protecting the clients of and closing the law office of Janet C. McCaa, Esq.
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is hereby granted in all respects; and
- Effective immediately and pursuant to M. Bar R. 26(e), Valeriano Diviacchi is now suspended for a period of twenty seven (27) months from the practice of law in Maine for his violations of those portions of Maine's Rules of Professional Conduct that are analogous to his violations of Rules 3.3(a)(l) and 8.4(c) of Massachusetts Rules of Professional Conduct (See, In the Matter of Diviacchi, 475 Mass. 1013, November 2, 2016).
- Plaintiff is the Board of Overseers of the Bar (the Board).
- Defendant Aaron Fethke, Esq. (Attorney Fethke) of Searsport, County of Waldo, Maine is and was at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Attorney Fethke \vas admitted to the Maine Bar in 1994 and since that time has engaged in private practice in Waldoboro, Maine.
- On July 10, 2015, John D. Pelletier, Esq. Executive Director of the Maine Commission On Indigent Legal Services (MCILS) filed a grievance complaint against Attomey Fethke. The complaint followed Attorney Fethke's suspension from the MCILS Roster of Eligible Attorneys for receiving new assignments due to "billing misconduct.? MCILS allowed Attorney Fethke to complete his existing cases, and assigned additional cases involving existing clients to him. Although Attorney Fethke's period of suspension has run, he has not reapplied for appointment to the MCILS Roster.
- In that complaint, Attorney Pelletier alleged that Attorney Fethke had been appointed by MCILS to represent criminal defendants and parents in child protective proceedings in numerous cases since MCILS began operations on July 1, 2010 until he was suspended from the roster in 2015.
- Attorney Pelletier alleged that during that time period Attorney Fethke had submitted payment vouchers to MCILS that did not accurately reflect the dates on which he performed the work detailed in the vouchers; that he entered time into the billing system in advance for work which had not yet been performed by him; and that his billings generally reflected disregard of his obligation to accurately document his work and a cavalier, attitude about the need to accurately respond to MClLS inquiries about that work.
- In response to Attorney Pelletier's complaint Attorney Fethke admitted that his "timekeeping and billing practices were sloppy," and that he "did not appreciate the need to consistently and accurately reflect the work actually being done in terms of dates and time of billing." Attorney Fethke recognized that his practices needed to "change and improve," but denied that his billing errors were intentional.
- On December 17, 2015, a panel of the Grievance Commission reviewed Attorney Pelletier's complaint against Attorney Fethke in this matter. Based upon that review, that panel found probable cause to believe that Attorney Fethke had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
- On April 29, 2016, based upon Attorney Fethke's waiver of Grievance Commission proceedings, the Court ordered that the Board file a disciplinary proceeding directly with the Court pursuant to Maine Bar Rule 13(g)(1).
- On July 7, 2016, the Board filed a three count Information with the Court alleging violations of the Maine Rules of Professional Conduct by Attorney Fethke.
- Between July of 2010 and September of 2014 Attorney Fethke engaged in a practice of billing MCILS for work done on assigned cases by aggregating hours that he spent over several days and recording that work as having being done on a single day.
- On multiple occasions between July of 2010 and September of 2014 Attorney Fethke's billing practices resulted in MCILS being billed for more than 24 billable hours within a single calendar day; however, at the same time, Attorney Fethke's billings would show a number of days where little or no work was billed, even though he had performed services on those dates.
- Attorney Fethke's billing practice of aggregating time spent on his cases made it impossible for MCILS to determine whether those bills accurately reflected the amount of time that he spent on the cases to which he was assigned.
- On May 2, 2014, the court appointed Attorney Fethke to the matter of State of Maine vs. JB, determining that JB was partially indigent.
- On that same date, a status conference was set in the matter for May 29, 2014; however JB discharged Attorney Fethke and retained another attorney to represent him prior to that conference being held.
- Attorney Fethke submitted his final bill to MCILS on-line by computer at 8:05 a.m. on May 27, 2014. His bill included 1.5 billable hours for attending a status conference hearing on that date.
- MCILS paid Attorney Fethke for the voucher submitted in JB's case, including the 1.5 hours of court time on May 27, 2014.
- MCILS learned of Attorney Fethke's erroneous entries when JB complained to them that his Maine State income tax refund was being offset to reimburse MCILS for work that Attorney Fethke had billed to MCILS.
- Although no status conference hearing was actually scheduled or held on May 27th, Attorney Fethke states that he was present at court for the May 29th status conference.
- By estimating the amount of time that he would spend at the future court hearing, and by misstating the date that he actually appeared in court, Attorney Fethke submitted an improper bill to MCILS, and made it impossible for MCILS to determine whether that bill accurately reflected the amount of time that he spent on the assigned case.
- In addition to his appointments in criminal matters, Attorney Fethke was appointed by MCILS to handle numerous child protective cases.
- In reviewing Attorney Fethke's billing, MCILS concluded that Attorney Fethke was expending significantly more hours reviewing discovery in child protective cases than other attorneys involved in those same, or similar, cases.
- MCILS required Attorney Fethke to document the number of pages of discovery that he reviewed in connection with each case when he submitted his bill.
- On March 26, 2015, MCILS performed an unannounced visit to Attorney Fethke's office to review nine different case files, in order to determine whether the amounts of discovery contained within those files were consistent with Attorney Fethke's statements to MCILS.
- At the conclusion of that inspection, MCILS determined that the total actual amount of discovery contained within those nine case files was less than one-third of the amount that Attorney Fethke stated was contained within those same case-files in his billing submissions to MCILS.
- Attorney Fethke subsequently admitted to MCILS that his voucher entries stating the number of pages of discovery in each case were inaccurate, and that in submitting his bills, he had estimated the number of pages of discovery for each case based upon the amount of time that he spent reviewing that discovery.
- While Attorney Fethke's billing may have accurately reflected the amount of time that he spent reviewing the discovery for each case, by estimating the number of pages that the discovery contained based upon his time reviewing it, Attorney Fethke misrepresented the amount of discovery contained within each case, and frustrated the original purpose that MCILS had in requiring that he document the number of the pages he reviewed.
- Attorney Fethke fully acknowledges that as a result of his unorthodox and inappropriate billing practices in relation to MCILS, the resulting bills contained knowing misstatements regarding the dates and times that he performed services for his clients. While he acknowledges that his inaccurate record keeping resulted in material misrepresentations of facts to MCILS, Attorney Fethke believes that his bills nonetheless accurately reflected the actual number of hours that he spent on the specific cases to which he was assigned, and that his misrepresentations did not result in overbilling of MCILS.
- The complainant and the Board agree that while the evidence does establish that Attorney Fethke's billing practices resulted in material misrepresentations of fact to MCILS, the evidence does not establish that those misrepresentations were the result of deliberate or intentional attempts on the part of Attorney Fethke to overbill MCILS for the services he performed for those clients.
- The Complainant and the Board agree that there is no evidence that the services for which Attorney Fethke billed were not in fact provided, or that Attorney Fethke's representation of his clients through MCILS was substandard.
- Attorney Fethke has testified that his attempts to run a high volume practice with minimal staff resulted in his being overwhelmed by attempting to balance the administrative tasks inherent in such a practice with the professional obligations of meeting his clients' legal needs and providing high quality representation. He further testified that the filing of this complaint, and the issues raised within it, have caused him to dramatically re-think his approach to his practice and to re-evaluate his work-life balance. In particular, Attorney Fethke testified that he has revised his entire office operation. He has hired additional staff, arranged for more full time staff coverage, and adjusted his work load such that the administrative requirements inherent in his practice are met.
- Attorney Fethke further testified that he has consulted with other attorneys in similar practices, reviewed materials available with regard to law office practice, taken practice-related CLE, and worked to recognize office practices and procedures that will streamline his billing and insure its accuracy. Attorney Fethke testified that he sets aside time at the end of each day to make sure that all of his time is recorded. In the event that he is out of town and unable to record his time, he makes entries via computer and then makes sure that those entries are appropriately inputted the following day prior to beginning any further work. Attorney Fethke testified that he has his office staff check on his billing so that he is accountable not only to himself and his billing software, but also to a personal check by his staff. Attorney Fethke clarified that although his staff checked his billing on a daily basis following the filing of the grievance complaint, that practice is now performed monthly.
- Mr. Fethke completed all of his pending cases with MCILS, and his billings after this matter arose were accepted and were paid by MCILS. MCILS has not discovered any further difficulties with regard to Mr. Fethke's billing in the completion of his existing cases, or in subsequent appointments by the court as counsel for indigent clients with the permission of MCILS. In those matters, his billings have been reviewed and no further issues have been noted by MCILS.
- Mr. Fethke expressed his deep remorse and embarrassment as a result of the conduct giving rise to the complaint. He apologized to MCILS and to the Court for the difficulties, confusion and time expended by others as a result of his mistakes.
- Attorney Fethke's repeated billing of MCILS by aggregating his hours for several days of work on a single date without accurately reflecting the actual dates and times that the services were performed was a negligent misrepresentation of the actual number of billable hours that he worked, and therefore was a violation of MRPC 8.4(a),(c) and (d).
- Attorney Fethke's billing of MCILS in advance for a hearing in the matter of State of Maine vs. JB, docket number BELSC-CR-2014-00061 that was not scheduled or held on that date for which he billed was a negligent, misrepresentation of the billable hours that he worked, and therefore was a violation of MRPC 8.4(a),(c) and (d).
- Attorney Fethke's billing of MCILS for time spent reviewing substantially more pages of discovery than he actually reviewed in nine specific child protective cases was a negligent misrepresentation of the actual number of the pages of discovery that he reviewed in those cases, and therefore was a violation of MRPC 8.4(a), (c) and (d).
- Attorney Fethke shall be monitored in his practice by Attorney Randolph A. Mailloux of Belfast, Maine, hereinafter referred to as the Monitor. If the Monitor is unable to continue serving as a monitor, the role of monitor shall by undertaken by a third party mutually agreed upon by Attorney Fethke and the Board of Overseers, or as otherwise selected and directed by the Court.
- The Monitor shall submit written reports to Bar Counsel every fourth month of the monitoring period, commencing May 2017, regarding Attorney Fethke's compliance with the special conditions of this order.
- The Monitor shall immediately report any apparent or suspected violation of the conditions of this order; the Maine Rules of Professional Conduct; or the Maine Bar Rules by Attorney Fethke directly to Bar Counsel.
- If Attorney Fethke commits any apparent violation of any of the conditions of this Order, Bar Counsel may proceed by way of contempt to request that the Court impose the suspended portion of this sanction.
- In the event a grievance complaint against Attorney Fethke is received by Bar Counsel after the date of this order during the period of the suspended suspension, Bar Counsel may seek permission of a Grievance Commission Panel to proceed with a new disciplinary matter directly before the Court pursuant to Bar Rule 13(d)(6).
- Upon certification to the Court by Bar Counsel that Attorney Fethke has successfully completed all of the requirements described above, the underlying suspension from the practice of law shall terminate without further order of the Court.
- secure any professional files, client property and client data of Eliot Field;
- inventory the client files;
- give priority to client matters that may be identified as open, active and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client or office accounts.
- secure the professional files, client property and client data of Attorney Lacasse;
- obtain access to Attorney Lacasse?s post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Lacasse?s law practice;
- obtain use of, at the Receiver?s discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Counsel or her designee;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- the Receiver shall confer with Special Counsel or her designee regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with Attorney Lacasse?s bookkeeper and/or accountant if necessary;
- prudently access and utilize Attorney Lacasse?s operating and IOLTA accounts to effect, if necessary, the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Counsel of the Board, her designee, or another attorney agreed to by the Board;
- preserve and protect confidential information of the clients of Attorney Lacasse pursuant to M. R. Prof. Cond. 1.6. Attorney Churchill is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Lacasse provided that he inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of Attorney Churchill as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- Attorney Churchill shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c).
- Attorney Churchill shall submit to the Court:
- a report of his actions and the status of the Receivership at six month intervals; and
- with the final report, a record of hours worked and disbursements made, in the event payment of legal fees at the State court appointment rate is requested. The assets of the law office of Attorney Lacasse shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source.
- contact clients, secure files, client property and client data of Attorney Lilley?s office;
- obtain access to Attorney Lilley?s law office or legal mail, and access to any e-mail and social media accounts which are associated with Attorney Lilley?s law practice;
- obtain use of, at the Receivers? discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Bar Counsel and if necessary, the Court;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- confer with Special Bar Counsel regarding publication of a notice to clients/former clients regarding closing of the law office and retrieval of files;
- prudently utilize Attorney Lilley?s operating and IOLTA accounts to effect the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Bar Counsel (at Board of Overseers of the Bar), or her designee;
- preserve and protect confidential information of the clients of Attorney Lilley pursuant to M. R. Prof. Cond. 1.6. Attorneys McArdle and Tucker are authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from their appointment as Receivers;
- consistent with M. R. Prof. Conduct 5.5, the Receivers may be engaged by any former client of Attorney Lilley provided that they inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of either Attorney McArdle or Tucker as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- Attorneys McArdle and Tucker shall ensure that only persons authorized by them, the Board of Overseers or this Court have access to the law office and its client property, financial information and business accounts.
- Attorneys McArdle and Tucker shall act as Receivers until discharged by the Court in accordance with M. Bar R. 32(c).
- Attorneys McArdle and Tucker shall submit to the Court:
- a report of their actions and the status of the Receivership at six month intervals; and
- with their final report, a record of hours worked and disbursements made, in the event payment of legal fees is requested at a negotiated rate, or if no rate is negotiated, the State court appointment rate. The assets of the law office of Attorney Lilley shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receiver(s) may be compensated from the estate of Attorney Lilley.
- The petitioner ha[d] fully complied with the terms of all prior disciplinary orders;
- The petitioner ha[d] neither engaged not attempted to engage in the unauthorized practice of law;
- The petitioner recognize[d] the wrongfulness and seriousness of the misconduct;
- The petitioner ha[d] not engaged in any other professional misconduct since resignation, suspension or disbarment;
- The petitioner ha[d] the requisite honesty and integrity to practice law; and
- The petitioner ha[d] met the continuing legal education requirements . . . .
- Procedural Issues
- Evidentiary Issues
- Jonas?s Burden
- Upon motion of the Board, the Court appointed Daniel P. Barrett, Esq., as Receiver of the law practice of George B. Hefferan, Esq. As Receiver, Attorney Barrett was authorized to obtain possession of files belonging to Attorney Hefferan?s clients, secure funds held in operating and trust accounts, obtain trust account records, and protect the interests of the clients and/or former clients of Attorney Hefferan.
- Attorney Barrett has taken necessary and reasonable steps to fulfill his obligations as the Receiver of the law practice of Attorney Hefferan. He has returned or attempted to return client files to their rightful owners. He has properly reviewed and disbursed funds in Attorney Hefferan?s bank accounts.
- Attorney Barrett has reviewed Attorney Hefferan?s client files and appropriately secured, transferred or expunged such files.
- Attorney Barrett has appropriately addressed the secure destruction of old client files and ensured the safe retention of files less than 8 years old. Those files are now being retained by the Board of Overseers until their required expungement. Likewise, the Board is serving as custodian for approximately 70 original Wills of Attorney Hefferan?s former clients.
- Attorney Barrett seeks no compensation for his work but he did incur some costs related to the closure of the law practice. It is the Court?s understanding that Attorney Barrett will be reimbursed for those costs by Attorney Hefferan?s Estate.
- The actions of Attorney Daniel P. Barrett, as Receiver of the law practice of Attorney Hefferan, as taken or proposed in the Report of the Receiver, are approved, inter alia, regarding the disposition of the client files and the closing of all bank accounts;
- Attorney Barrett is discharged as Receiver of the law practice of Attorney George B. Hefferan, Jr.;
- The Court extends it sincere gratitude to Attorney Barrett for his valuable pro bono work in protecting the clients of and closing the law office of Attorney Hefferan.
- Upon motion of the Board, the Court appointed Jesse F. Bifulco, Esq., as Receiver of the law practice of Christopher D. Hardy, Esq. As Receiver, Attorney Bifulco was authorized to obtain possession of files belonging to Attorney Hardy?s clients, secure funds held in operating and trust accounts, obtain trust account records, and protect the interests of the clients and/or former clients of Attorney Hardy.
- Attorney Bifulco has taken necessary and reasonable steps to fulfill his obligations as the Receiver of the law practice of Attorney Hardy. With the pro bono assistance of Attorney Robert Rubin, Attorney Bifulco has returned or attempted to return client files to their rightful owners. He has properly reviewed and disbursed funds in Attorney Hardy?s bank accounts.
- Attorney Bifulco has reviewed Attorney Hardy?s client files and appropriately secured, transferred or expunged such files.
- In consultation with the Board of Overseers, Attorney Bifulco has appropriately addressed the secure destruction of old client files and ensured the safe retention of files less than 8 years old.
- Within the Final Report, Attorney Bifulco detailed his professional services and a list of the costs he incurred related to the closure of the Hardy law practice.
- The actions of Attorney Jesse F. Bifulco, as Receiver of the law practice of Attorney Hardy, as taken or proposed in the Final Report of the Receiver, are approved, inter alia, regarding the disposition of the client files and the closing of all bank accounts;
- Attorney Bifulco is discharged as Receiver of the law practice of Attorney Christopher D. Hardy;
- Attorney Bifulco is authorized to retain all other files unclaimed by clients until their required expungement.
- In accordance with the amounts referenced in his Final Report, Attorney Bifulco shall be compensated for his professional services (at the court-appointed rate) and for his costs related to the wind down and closure of Attorney Hardy?s practice. The sources of payment for those fees and costs shall be the remaining assets of the closed law practice.
- The Court extends it sincere gratitude to Attorneys Bifulco and Attorney Rubin for their valuable work in protecting the clients of Attorney Hardy.
- secure the professional files, client property and client data of Attorney Harrington;
- inventory the client files;
- notify former clients of the Receivership and provide an opportunity for those clients to retrieve their property;
- store or dispose of any remaining files pursuant to M. R. Prof. Conduct 1.15(b)(2)(iii).
- secure the professional files, client property and client data of Attorney Pretzel;
- obtain access to Attorney Pretzel?s post office boxes, to secure any law office or legal mail, and access to any e-mail accounts which are associated with Attorney Pretzel?s law practice;
- obtain use of, at the Receiver?s discretion, all computer hardware, software and digital files, user names and passwords;
- obtain signatory authority over IOLTA and all other bank accounts the law practice maintained;
- reconcile IOLTA and all other bank accounts, and then report the results of the reconciliations to Special Counsel or her designee;
- obtain access to all safe deposit boxes and other facilities in which office or client property is stored;
- inventory the open and closed client files;
- give priority attention to client matters which are open and time sensitive;
- the Receiver shall confer with Special Counsel or her designee regarding publication of a notice to former clients regarding closing of the law office and retrieval of files;
- confer with Attorney Pretzel?s bookkeeper and/or accountant if necessary;
- prudently access and utilize Attorney Pretzel?s operating and IOLTA accounts to effect, if necessary, the formal conclusion of the law practice, including the temporary retention of support staff or other personnel as necessary and appropriate;
- address any conflicts of interest pursuant to M. R. Prof. Cond. 6.5. Any files identified by the Receiver as presenting a conflict of interest shall be transferred to Special Counsel of the Board, her designee, or another attorney agreed to by the Board;
- preserve and protect confidential information of the clients of Attorney Pretzel pursuant to M. R. Prof. Cond. 1.6. Attorney Pratt is authorized to allow limited disclosure of confidential information to detect and resolve conflicts of interest arising from his appointment as Receiver, or in conjunction with the sale of the practice pursuant to M. R. Prof. Cond. 1.17A, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;
- allow himself, consistent with M. R. Prof. Conduct 5.5, to be engaged by any former client of Attorney Pretzel provided that he inform such client in writing that the client is free to choose to employ any attorney, and that this Order of Appointment does not mandate or recommend the Receiver?s employment by the client. A client?s retention of Attorney Pratt as successor counsel is not a per se conflict of interest solely by reason of this Appointment Order;
- Attorney Pratt shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32(c).
- Attorney Pratt shall submit to the Court:
- a report of his actions and the status of the Receivership at six month intervals; and
- with the final report, a record of hours worked and disbursements made, in the event payment of legal fees at the State court appointment rate is requested. The assets of the law office of Attorney Pretzel shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source.
- Procedural Issues
- Evidentiary Issues
- Personally solicit or accept campaign contributions or personally solicit publicly stated support.
- Do Not Appoint Directive
- Removal of Attorney Ramirez
- Order to Destroy a Lawfully Obtained Public Document
- Overhaul of the Probate Schedule
- Urging Litigants to Lobby as Part of Court Orders
- shall not read the writing or, if he or she has begun to do so, shall stop reading the writing;
- shall notify the sender of the receipt of the writing; and
- shall promptly return, destroy or sequester the specified information and any copies.
- The effective date of the Court's Order of Suspension is hereby stayed to and through September 15, 2017. The Board of the Overseers of the Bar will be notified of the stay.
- The Committee on Judicial Responsibility and Disability shall file its response to the motion to reconsider on or before July 28, 2017.
- Nadeau may file a reply on or before August 11, 2017.
- No further hearing will be held unless later ordered by the Court.
- On January 5, 2016, upon motion of the petitioner, Paul W. Chaiken, Esq., the Court appointed Ronald A. Mosley Jr., Esq., as Receiver of the law practice of Alan D. Graves, Esq. for the purpose of obtaining possession of files belonging to Alan D. Graves, Esq.'s clients, securing funds held in Alan D. Graves, Esq. 's operating and trust accounts, obtaining Alan D. Graves, Esq.'s trust account records and protecting the interests of the clients and/or former clients of Alan D. Graves, Esq.
- Ronald A. Mosley Jr., Esq., Receiver of the law practice of Alan D. Graves, Esq., acting in good faith, has taken all reasonable steps to fulfill His obligations as Receiver of the law practice of Alan D. Graves, Esq. He has returned or attempted to return all client files to their rightful owners. He has secured funds held in Alan D. Graves, Esq.'s operating and trust accounts and has identified or attempted to identify the persons to whom those funds belong.
- Ronald A. Mosley Jr., Esq. has reviewed Alan D. Graves, Esq.'s clients' files. An inventory of the client files is attached hereto as Exhibit A.
- Ronald A. Mosley Jr., Esq. has distributed files to a significant number of clients and/or former clients of Alan D. Graves, Esq. Ronald A. Mosley Jr., Esq. has returned, where possible, all active client files to the respective clients. A significant number of other files belonged to deceased clients or contained superseded documents and could be confidentially destroyed. A list of the files that have been returned to Alan D. Graves, Esq.'s clients or otherwise disposed of is attached hereto as Exhibit B.
- A number of Alan D. Graves, Esq.'s clients have not picked up their files, despite Receiver's good-faith effort to provide them notice that they should do so. Ronald A. Mosley Jr., Esq. now has in His possession original documents from approximately 56 apparently closed client files. There were no apparently active client files. A list of the files that have not been claimed by the clients is attached hereto as Exhibit C.
- Some disposition needs to be made of the remaining files of Alan D. Graves, Esq. 's former clients. Ronald A. Mosley Jr., Esq., the Receiver in this matter, is the most appropriate caretaker of these remaining files. Ronald A. Mosley Jr., Esq. is willing and able to execute these duties. As the Receiver, He is aware of the proper method of tending and distributing these files. Jade A. Murdick, Esq. has agreed to assume these duties at such time that Ronald A. Mosley Jr. is no longer able to perform them.
- Ronald A. Mosley Jr., Esq. agreed to serve in this matter as a service to the bar on a pro bono basis. The Receiver has worked approximately 80 hours on this matter, incurred only nominal expenses such as postage and office supplies, and sought no compensation or reimbursement.
- Ronald A. Mosley Jr., Esq., Receiver of the law practice of Alan D. Graves, Esq., has taken all reasonable steps to discharge His obligations as Receiver of the law practice of Alan D. Graves, Esq., to return all client files, and to disburse all funds in Alan D. Graves, Esq.'s operating and trust accounts.
- Ronald A. Mosley Jr., Esq. should be authorized to maintain in storage at 12 Elm Street, Machias, ME, those client files that have not yet been retrieved by the clients of Alan D. Graves, Esq. At such time that Ronald A. Mosley Jr., Esq. is no longer able to perform His duties, Jade A. Murdick, Esq. should be authorized to assume the responsibilities of the file caretaker and store such files that remain at a location convenient to Jade A. Murdick, Esq.
- Ronald A. Mosley Jr., Esq. is discharged, with the gratitude and appreciation of the court, from further service as Receiver of the law practice of Alan D. Graves, Esq.
- Ronald A. Mosley Jr., Esq. is hereby authorized to maintain in storage at 12 Elm Street, Machias, ME, those client files that have not been retrieved by the clients of Alan D. Graves, Esq. At such time that Ronald A. Mosley Jr., Esq. is no longer able to perform His duties as caretaker, Jade A. Murdick, Esq. is authorized to assume caretaker duties at a location convenient to Him.
- secure and inventory client files;
- attempt to notify former clients of the Receivership and provide an opportunity for those clients to retrieve their property;
- store or dispose of any remaining files pursuant to M. R. Prof. Conduct 1.15.
- Respondent Richard L. Currier, Esq. has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Currier was admitted to the Maine Bar in 1980 and practices in Presque Isle.
- Roland M. passed away in 2016, leaving a purported 2015 will naming Dwayne C. Gagnon as the sole beneficiary. Mr. Gagnon retained Attorney Rossignol?s law firm to represent him with regard to his claim under that will.
- The siblings of Roland M. did not recognize the legitimacy of the 2015 will, and retained Attorney Currier to represent them with regard to their claims to the estate under a previous will executed by Roland M. in 2013.
- The assets of the estate consisted primarily of the contents of two locked safes and some firearms which were taken to the Caribou Maine Police Department after Roland M.?s death with the understanding that they were to be held there until a court order was obtained regarding their disposition.
- On August 24, 2016, Attorneys Rossignol and Currier signed a joint letter to the Chief of the Caribou Police Department notifying him that the parties had agreed that they would meet together at the police department to open the safes and view the contents, and that in view of that agreement, a court order would not be necessary.
- After Roland M.?s funeral, Attorney Rossignol made multiple attempts to contact Attorney Currier to arrange for the opening of the safes as agreed upon and outlined in the August 24th letter; however, Attorney Currier did not respond to those attempts by Attorney Rossignol to reach him.
- On August 30, 2016, without providing prior notice to Attorney Rossignol, and despite his knowledge of the contested nature of the estate, Attorney Currier filed an application for informal probate of the 2013 will seeking appointment of one of his clients as the Personal Representative of the estate.
- In the application filed with the Probate Court by Attorney Currier, his client stated: ?To the best of my knowledge, I believe the will was validly executed, and, after the exercise of reasonable diligence, I am unaware of any instrument revoking the will, and I believe the instrument which is the subject of this petition is the decedent?s last will.?
- After obtaining ?Letters of Authority? for the Personal Representative on September 1, 2016, Attorney Currier notified the Chief of the Caribou Police Department that the ?Letters of Authority? were a court order requiring him to release the safes and firearms to the Personal Representative.
- Attorney Currier did not notify Attorney Rossignol of the appointment of the Personal Representative, or of his correspondence with the Chief of the Caribou Police Department until after his client took possession of the disputed property.
- After his clients had taken custody of the personal property of Roland M.?s estate, Attorney Currier told Attorney Rossignol that if Mr. Gagnon filed the 2015 will in probate, or contested their probate of the 2013 will, he, or his clients, would contact the District Attorney?s Office to seek criminal prosecution of Mr. Gagnon in relation to the 2015 will.
- Mr. Gagnon did not file the 2015 will or contest the probate of the 2013 will by Attorney Currier?s clients. Attorney Currier did not report Mr. Gagnon to the authorities for criminal prosecution, although his clients did bring this matter to the attention of the appropriate authorities. However, no prosecution was forthcoming. Attorney Currier?s threat of prosecution was intended solely to prevent Mr. Gagnon from contesting the 2013 will.
- Attorney Currier now agrees and admits that his conduct in his handling of Roland M.?s estate violated the following Rules of the Maine Rules of Professional Conduct: 3.1(b) (Threatening Prosecution), and in violation of M. R. Prof. Conduct: 8.4(d) (Conduct Prejudicial to the Administration of Justice).
- secure any professional files, client property and client data of John M. Whalen;
- inventory the client files;
- give priority to client matters that may be identified as open, active and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client or office accounts.
- In late 2016, the client who filed the complaint in this matter contacted Prolman and asked him to represent her in two separate matters.
- In the first matter, the client had been charged with theft as a result of her failure to return a computer to a Rent-A-Center in Florida, during a time when she had been residing with a boyfriend in Florida. In this matter, there was an outstanding warrant from Florida for the woman’s arrest.
- Prolman agreed to represent the woman in this matter for a flat fee. He succeeded in resolving this matter by arranging for his client to repay the Rent-A-Center for the computer, at which point the theft charge was apparently dropped and the arrest warrant was withdrawn. This matter was successfully resolved before the facts which gave rise to this disciplinary action arose.
- The client also sought Prolman’s assistance in seeking to obtain early termination of the term of probation and participation in a closely supervised diversion program arising from the felony drug conviction that was supervised by probation officers in Sagadahoc County. A separate flat fee was paid to Prolman to resolve this matter.
- In early March 2017, as a result of meetings with state probation officials, an assistant district attorney at the West Bath District Court, and Sagadahoc County law enforcement officers, Prolman was able to arrange an early termination of his client’s probation, effective in June 2017, provided that the client complied with her terms of probation until that time.
- Beyond the two matters for which he was retained, the client also discussed with Prolman whether he might be able to assist her with a third matter. At the time, criminal charges for sex trafficking women, including Prolman’s client, were pending against an individual in Massachusetts. Because Prolman’s client was concerned about risks that might be associated with testifying against that individual, and because she wanted to put the sex trafficking events in her life behind her, the client asked Prolman to assist her in arranging to avoid testifying in the Massachusetts matter.
- At the time the client had retained Prolman to assist her, she was living with a boyfriend in Topsham. The boyfriend’s relationship with Prolman’s client was controlling and abusive. The client gave her boyfriend the money she earned from her job in the Topsham area, and he in turn would pay her expenses, including the flat fees paid to Prolman for his representation. The boyfriend also paid for and controlled the client’s cell phone.
- On at least a couple of occasions in early 2017, the boyfriend had assaulted the client. However, although Sagadahoc County law enforcement authorities had indications that the assaults had occurred, because of their regular contact with the client, the assaults were not prosecuted because the client had indicated that she would refuse to testify against her boyfriend.
- On the evening of March 26, 2017, the client’s boyfriend savagely assaulted her at the apartment they shared in Topsham. Among other injuries, he broke bones in her face and attempted to strangle her, leaving marks on her throat. The client fled to another residence, the police were called, and the boyfriend was arrested. The record does not disclose the exact charges on which the boyfriend was arrested and held. However, the broken bones in the client’s face could have justified an aggravated assault charge, 17-A M.R.S. ¶ 208 (2016).
- On March 27, 2017, the Sagadahoc County authorities anticipated, correctly, that despite the serious injuries to the client and the boyfriend’s prior record of assaultive behavior towards her, the boyfriend would soon be allowed to make bail and return to the Topsham apartment that he and the client shared. Accordingly, they believed it was necessary for the client to promptly get other accommodations where her boyfriend would not have access to her. At the time, the client had no money and no person in the community to whom she could turn for assistance.
- On March 27, Prolman was in Florida, preparing to return, late that evening, from a ten-day vacation.
- Prolman and the client spoke by phone on several occasions. During these calls, she apparently described the assault and the need to find other accommodations safe from the boyfriend who was anticipated to soon be released from jail.
- Prolman also spoke with the Sagadahoc County Sheriff’s Deputy who was the client’s diversion supervision officer. Prolman indicated to the Deputy that there was an apartment above his law office where the client could stay. The impression Prolman conveyed to the Deputy was that the apartment above his law office was an otherwise vacant apartment where the client could stay, by herself, until more permanent living arrangements could be found.
- Because, in the Deputy’s view, no other living arrangement was available and a living arrangement for the client was urgently needed, the Deputy agreed to placement of the client in the apartment above Prolman’s law office.
- The Sagadahoc County Deputy arranged for the client to get to the Saco address of the apartment where, by prior arrangement, Prolman’s office assistant had left keys and directions available to the client to access the apartment.
- The apartment above Prolman’s law office was in fact occupied by Prolman in one bedroom, another individual, not present at the time, using a second bedroom, and a third bedroom where the client was placed. The apartment is easily accessible by two sets of stairs from Prolman’s law office on the first floor and from a brewery and what witnesses described as a "tasting room"2 in the basement.
- Occasionally and unpredictably, staff from the brewery would access the second-floor apartment to use the kitchen for cooking ingredients for the brew and to use the washer and dryer located in the only bathroom on the second floor, which was located next to Prolman’s bedroom.
- Prolman arrived home from Florida late in the evening of March 27 or very early in the morning of March 28.
- During the day of March 28, Prolman and the client went out and Prolman purchased a cell phone for the client which was added, as a second phone, to Prolman’s cell phone account. The purpose of acquiring a cell phone was to provide the client with a means of communication, and one that was not known or accessible to her abusive boyfriend.
- Prolman also assisted his client in obtaining a job as a waitress at a local restaurant.
- On March 29, Prolman and his client traveled to Sagadahoc County where they met with a number of law enforcement officials and probation officers to discuss the client’s probation status and prosecution of the abusive boyfriend.
- At this meeting, the fact that the client was living in an apartment above Prolman’s law office was discussed, but at no point did Prolman or his client indicate that Prolman was also residing at the apartment.
- Had she learned that Prolman was living at the apartment, the Sagadahoc County diversion officer would have acted to terminate that living arrangement.
- Because Prolman was barred from associating with felons, except for providing service as an attorney, Prolman’s federal probation officer would have objected to Prolman allowing the client, with a felony drug conviction, to live with him.
- When he arranged for his client to live in his apartment, Prolman was aware of his client’s social and abuse history and was aware of her submissiveness to men and her vulnerability to abusive physical and sexual relationships.
- On more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her.3 The client regarded Prolman’s sexual acts as "gross. " While she did not consent, she also did not object to Prolman’s sexual acts, simply submitting to what Prolman demanded—"I went along with it"—as she had done in past relationships with men who had taken advantage of her vulnerabilities.
- As part of the intensive supervision in the diversion program, the Sagadahoc County Deputy was in regular contact with the client while she was residing at Prolman’s apartment. At no time did the deputy receive any indication that there was a problem in the relationship between Prolman and the client, until after the client had moved out of the apartment. This was consistent with the client’s past practice of minimizing or not disclosing problems she had had with men abusing or taking advantage of her during the course of her probation supervision.
- On April 10, the client, with the assistance of her employer at the restaurant, acquired a motor vehicle.
- Also on April 10, Prolman prepared for his client a lamb chop dinner which they shared along with some glasses of wine. The dinner was quite convivial, its purpose to celebrate the client’s increasing independence with a job and a car.
- Late in the evening of April 10, Prolman approached the client in her bedroom and attempted to initiate sexual relations with her. She refused, and he left the room.
- The next day, April 11, the client moved out, obtaining accommodation at a local motel. She has since moved to another residence.
- After she moved out of his apartment, Prolman and his client did not, again, have in-person contact. On one occasion, when the client saw Prolman coming to the restaurant where she worked, she went into the kitchen until he was gone.
- After Prolman discovered that his client had moved out of his apartment, he contacted her by text messaging asking, in friendly sounding words, where she was and if she was alright. In responding to Prolman’s text messages, the client indicated that she wanted to terminate the attorney/client relationship with Prolman and to handle the remaining pending matter, seeking to shorten her term of probation, on her own.
- Approximately two weeks later, by a motion dated April 26, 2017, Prolman sought and was granted leave to withdraw from representing the client. The motion to withdraw asserted that the client had been in compliance with the terms of her probation, and that the early termination of probation hearing, already agreed to, could proceed as anticipated, without further appearance of counsel.
- The docket entries reflect that the early termination of probation was granted on June 9, 2017, as had been agreed to with the prosecutor in early March 2017, before failure of the attorney/client relationship.
- Prolman denies that he had any sexual contact with his client while she was living at his apartment. Resolving issues such as are presented in this matter often involve making credibility determinations. The Court’s credibility determinations that support the above findings, and, in the Court’s view, support the findings, even to a clear and convincing evidence standard, include, but are not limited to, the following:
Prolman is a very experienced criminal defense and family law attorney. He would have known well that taking a client into his home, with the history of abuse and vulnerabilities that his client had, could involve significant risks. He accepted those risks and did not disclose the fact that he was residing in the apartment to the Sagadahoc County officials or the probation officials who would have vetoed the arrangement had they known of it.
Prolman testified that on the evening of April 9, he and the client had a "blow up. " During this "blow up" Prolman testified that he accused his client of, and she admitted to, using illegal drugs while she had been residing at his apartment, and he testified that he then told his client that he was terminating the attorney/client relationship with her.
Prolman testified that there was considerable delay from April 9 in getting the motion to withdraw filed only because his office assistant was on vacation and therefore the motion to withdraw could not be typed and properly prepared. However, the office assistant testified that she did not leave for vacation until Wednesday, April 12. Accordingly, she would have been available on two business days, Monday, April 10, and Tuesday, April 11, to prepare the motion to withdraw, had Prolman sought to promptly file a motion to withdraw, as he claimed he wanted to, following the alleged "blow up"on April 9.
It appears highly unlikely that the convivial lamb chop dinner, with shared consumption of alcoholic beverages, that occurred on April 10 would have occurred had the April 9 "blow up" and termination of the attorney/client relationship occurred as described in Prolman’s testimony.
The text messaging between Prolman and the client, beginning on Tuesday April 11, indicated in Board Exhibit 21, includes statements by Prolman saying things that would not appear likely to have been stated if the "blow up" occurred as he claimed. The text messaging indicated that on Thursday, April 13 it was the client, not Prolman, stating that she wanted the attorney/client relationship terminated. It is only after this indication from the client that she wanted the attorney/client relationship terminated that the motion to withdraw was initiated and filed after Prolman’s office assistant returned from her vacation.
The representation to the court made by Prolman in the motion to withdraw that the client had been compliant with the terms of her probation and thus, by inference, that she had not been using drugs, would have been, if the client was abusing drugs as Prolman testified she was, a false representation to the court and a serious violation of the Rules of Professional Conduct.
At all times while she was at Prolman’s apartment, the client was subject to random drug testing, although it does not appear that such random tests were conducted while she was at Prolman’s apartment. The way random drug tests are conducted when a female is being tested include being observed in the stall by a female officer, which makes it improbable that clean urine could be substituted for the client’s urine during the course of the observed gathering for testing. Notably, one witness did testify that, at the request of another individual, he had provided "clean urine" to be used by the client in a drug test. However, this had occurred, the witness testified, "over a year ago, " thus seven or eight months before the possible random drug tests at issue in this proceeding.
- During the time his client was residing at his apartment, Prolman consumed and provided to his client wine from one or more bottles of wine. Prolman’s federal probation conditions barred his use or possession of alcoholic beverages. A violation of Prolman’s federal probation conditions would be a violation of the Court’s March 7, 2016, order requiring compliance with the terms and conditions of his federal probation.
Compensation: The Receiver shall be reimbursed for reasonable expenses and compensated for professional services at the rate of $50.00 per hour plus expenses by the Board of Overseers of the Bar. The Board may, by a motion filed with the Court, seek reimbursement of the same from Mr. Acker.
Mr. Acker shall deliver the above-described records and files to the Court-appointed Receiver as directed by the Receiver and, in any event, no later than 10 days from the date of this Order. Upon his delivery of the records and files to the Receiver, Mr. Acker shall file with the Court under seal a written statement that confirms that he has delivered all of the records and files required by this Order, and identifies the records and files delivered by client name and address. A copy of the same shall be provided to the Board and the Receiver.
IT IS FURTHER ORDERED AS FOLLOWS:
The Board shall be permitted to perform limited discovery regarding Thomas R. Acker's mental condition and status. Within ten days of the entry of this Order, Mr. Acker shall either produce complete copies of the admission and discharge reports, and the reports of any psychiatric or psychological diagnostic evaluations, associated with his treatment by M. Ed. Kelley, M.D. and St. Mary's Regional Hospital in February and March 2006. In the alternative, Mr. Acker shall sign such releases and authorizations deen1ed necessary by the Board to enable the Board to obtain the records directly from Dr. Kelley and St. Mary's Regional Hospital. Upon the Board's receipt of the records, it may move the Court for permission to conduct additional discovery that it believes is necessary. All records and court-filings associated with Mr. Acker's mental condition and status shall be deemed confidential, shall not be shared with third-parties absent prior approval of the Court, and copies of the same shall be filed Under seal with the Clerk of Court.
The Clerk is directed to forward copies of this Order to the Receiver, Wayne E. Tumlin, Esq., and to David Kee, Esq., Director of the Maine Assistance Program. The Clerk is further directed to forward copies of this Order to Thomas R. Acker at the following addresses: (1) 177 West Shore Road, Denmark, Maine 04022, and (2) c/o Elihu J.U. Acker, 184 Hilton Road, Denmark, Maine 04022.
For the Court
Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial CourtBoard of Overseers of the Bar v. Thomas M. Mangan
Download Decision (PDF)
Docket No.: BAR 99-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 28, 2000
Respondent: Thomas M. Mangan, Esq.
Bar Number: 001743
Order: Findings
Disposition/Conduct: Neglect; Conflict of Interest; Preserving Identity of Funds and Property; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation
Judgment and Findings
This matter came on for trial before a single justice of the Supreme Judicial Court, pursuant to Maine Bar Rule 7.1(e)(3)(C) and 7.2(b)(1), upon the information filed by the Board of Overseers of the Bar alleging that Attorney Thomas Mangan has, among other things, conducted himself in a manner unworthy of an attorney. Trial was held over three days, January 11 through 13, 2000. The Board was represented by Attorney J. Scott Davis. Mr. Mangan was represented by Attorney Leonard Sharon. The Board presented six: witnesses: Thuy Thi R., Officer Randy Haussman, Barry R., Attorney Richard Berne, Sgt. Michael McGonagle, and Be Tucci-Gagne. In addition to his own testimony, Mr. Mangan presented six: witnesses: Officer Lee Jones, Thuy Thi R., John Violette, James D. Amerault, Roland Berry, and Leo Soucy.
The Board alleges multiple violations of the Code of Professional Responsibility, but at the heart of the Board's allegations are its contentions that Mr. Mangan engaged in a sexual relationship with a client, Thuy Thi R. The Board must prove its allegations by a preponderance of the evidence. See Maine Bar Rule 7.2(b)(4).
1. The Allegations
The Board has alleged four specific instances or courses of conduct undertaken by Mr. Mangan in violation of the following provisions of the Code of Professional Responsibility: 3.1(a); 3.2(f)(2), (3), (4); 3.4(b)(1); 3.4(f)(1); 3.6(a)(3); 3.6(e)(l), (2); and 3.7(d). The specific allegations may be summarized as follows:
II. Findings of Fact
One of the most important issues for determination by the court is the credibility of the two primary witnesses to the events at issue: Ms. R. and Mr. Mangan. Although both individuals were credible in part, neither were credible on all issues. Having considered their testimony as well as the testimony of all other witnesses along with the documentary and other evidence offered by both parties, I make the following findings.
Mr. Mangan is an attorney licensed to practice law in the State of Maine. He has been practicing in the Lewiston area since approximately 1975. He maintains a relatively small private practice and is a sole practitioner. He is subject to the provisions of the Code.
Ms. R. was born in Vietnam. She came to America in 1972. She has three daughters. The oldest, Sue, is now 30 years old. Sue's father is Donald A., an American serviceman. Ms. R. did not marry Donald A. Cathy, now 28, is the daughter of Robert B., also an American serviceman. Ms. R. was not married to Robert B. Ms. R. married Keith N. sometime in 1972, and he adopted Cathy and Sue. Ms. R. was later divorced from Keith N. Ms. R. married Barry R. in 1978, and they have one daughter, Marie. Ms. R. and Barry R. are now separated.
Ms. R. has been in this country for approximately 28 years. She understands English quite well and speaks relatively clearly except when she is under pressure. She also reads English relatively well, but does not write well. She has a history of psychological fragility and depression. She has been treated by a number of physicians and has been prescribed antidepressant medication. She has intentionally overmedicated herself upon occasion.
Sometime in the early eighties, probably 1983, Ms. R. approached Mr. Mangan to seek his legal assistance in obtaining child support from Keith N. He agreed to assist her, but shortly thereafter he received a letter from Attorney John Hamilton, indicating that Hamilton had been asked to take over Ms. R.'s representation and asking that Mr. Mangan turn over Ms. R.'s file. Mr. Mangan did so.
Mr. Mangan had no further contact with Ms. R. until she sought him out again in 1990. She had been prosecuting a worker's compensation claim through Attorney John Sedgewick. Although she had been less than successful in her claim, she had received $4000 for the payment of medical bills. Because her medical bills exceeded that amount, she asked Mr. Mangan if he would negotiate with the medical providers in order to pay her obligations at less than the outstanding amount due. Mr. Mangan agreed to take her case. He did not enter into a fee agreement with Ms. R. and expected to do the work pro bono. He took the check, deposited it in his client escrow account, and paid a number of her medical bills. He was successful in obtaining a reduction in the debt on several of the bills. By sometime in July of 1992, Mr. Mangan had paid out approximately $4100 on behalf of Ms. R. Nonetheless, Ms. R. continued to receive phone calls from creditors and was never clear on what had been paid and what had not.
Mr. Mangan did not tell her when he had concluded that work, he never gave her an accounting of the payments he made on her behalf, and he never sought payment from Ms. R. for his work. Although the exact dates are uncertain, Ms. R. next approached Mr. Mangan about locating the fathers for her two older girls. Her first contact with Mr. Mangan's office regarding this issue was with Mr. Mangan's secretary. It is probable that this occurred in the summer of 1992. Ms. R. wanted to find the fathers for the girls' peace of mind and for medical history information even though the adoption by Keith N. meant that the fathers would have no legal obligation to Ms. R. or the girls. Mr. Mangan told her that he was good at such searches and that he would undertake the search for her. He expected the search would take approximately six months, and he told her that she could pay him when the search was completed. Again, he did not specify his expected compensation, and he did not enter into a fee agreement of any kind. Ms. R. expected that she would pay somehow, but did not know when or how much.
Sometime after agreeing to undertake the search for the fathers, in 1992 or 1993, Mr. Mangan began having a consensual sexual relationship with Ms. R. Mr. Mangan initiated that relationship, and Ms. R. was, for a while, a willing participant. At the time the sexual relationship began, Mr. Mangan had given her no final accounting on the medical bills,1 and he was still searching for her daughters' fathers. He did not ever clarify the completion of the medical bills work, nor did he tell her that he should not act as her lawyer while they were having a relationship. He did not ever formally notify her that he had ceased his work on the search for the fathers, and he did not attend to it diligently.
The two met for sex regularly over several years. During part of this time Mr. Mangan was separated from his wife, and he made that known to Ms. R. He was not honest with Ms. R., however, about the length of that separation, and Ms. R. later learned that Mr. Mangan had reconciled with his wife and returned to the home.
Ms. R. was still living with Mr. R. and their daughter when the relationship with Mr. Mangan began. One evening when Ms. R. was at Mr. Mangan's law office for a sexual encounter, her husband appeared at the office. After an unpleasant moment or two, Ms. R. left and went home. Mr. R. did not explicitly accuse Mr. Mangan of having an affair with Ms. R., and the pair was not sure what he knew. Ms. R. eventually separated from her husband.
Sometime after the relationship began, Mr. Mangan began giving Ms. R. money. This occurred primarily after her separation from her husband. Ms. R. felt that her husband was not giving her enough money to run the household, and Mr. Mangan gave her the money to help her with extras. In the beginning, Mr. Mangan gave her cash, but later wrote checks. Frequently, he gave her $150 a week. He continued to give her money throughout most of the relationship.
After Ms. R. and her husband separated, Ms. R. wanted to obtain a court order to require him to pay child support for Marie. Mr. Mangan understood that he might become a witness in the proceeding because of the incident at his office. He referred Ms. R. to Attorney Bill Cote. Although Mr. Mangan points to that referral as evidence that he knew he could not act as her attorney and have a relationship with her, I conclude that he referred her to Mr. Cote because of the potential embarrassment to himself if he continued representing her and was called as a witness.
In order to pay Mr. Cote's retainer, Mr. Mangan put his own money into his client escrow account. He then wrote a check to Mr. Cote from that account in the amount of $2000 on Ms. R's behalf. Mr. Cote undertook the representation.
The Board's first allegation regarding forced sex relates to an incident on December 5, 1993. Ms. R. testified that on that day, she went to meet Mr. Mangan at his office; that he wanted to have sex; that even though Ms. R. did not want to have sex, she "did anyway;" and that Mr. Mangan did not wear a condom, as he usually did. Afterwards, Ms. R. began to be afraid that she might have contracted a disease or become pregnant. Eventually that afternoon, she drove to the sexual assault unit of Central Maine Medical Center. She did not disclose the person with whom she had sex, but she did indicate her fear of pregnancy and she received an oral contraceptive to prevent pregnancy.2 She indicated that she had been assaulted in the early afternoon.
On the day that Ms. R. received that treatment, Mr. Mangan went with his wife and several members of the Lions Club to a Lions Club meeting in Kittery. The group left at approximately 8:00 A.M. and returned in late afternoon. Ms. R. went to the hospital at 3:40 in the afternoon after having waited several hours while deciding what to do. It isn?t likely that Mr. Mangan spent any time with Ms. R. on December 5, 1993. I cannot conclude that it is more likely than not that this incident occurred as Ms. R. said it did. In any event, the relationship continued, and Ms. R. continued to have consensual sex with Mr. Mangan.
Eventually the relationship between Mr. Mangan and Ms. R. became strained. Ms. R. was continuing to struggle with depression. In approximately October of 1996, she demanded more money than Mr. Mangan was willing to give her.3 She began calling his office incessantly when he did not give her what she asked. Many of those calls were "trapped," with the assistance of the phone company, by Carol Mangan, Mr. Mangan's wife, who worked at that time as a secretary in his office. The police investigated, and Ms. R. initially blamed the calls on her daughter. She later admitted she had made the calls herself.
Mr. Mangan attempted to convince Ms. R. to stop making the calls and told her that he would continue giving her money for several weeks. She pressed him for information on the fathers and for more money.
The second allegation of forced sex relates to an incident in January of 1997. Late in that month, Mr. Mangan took a trip to see his son in Florida. He told Ms. R., inaccurately, that he would be going to Boston and that he would be bringing back good news about his search for the fathers. When he arrived at her house, he did not have any news, he just told her, as he had previously, that he was "getting close." While at her house, Mr. Mangan had sex with Ms. R. Although she did not want to have sex, she did not object. She was acutely disappointed that he did not have new information regarding the fathers.4
After he left, she became very upset and took too much of her prescribed medication and called the police. A Lewiston police officer was dispatched to Ms. R.'s house to deal with a possible drug overdose. Ms. R. handed the officer three pill bottles-Ativan, Trazadone, and Effexor. She was tearful and distraught and was taken to the hospital by ambulance. At the hospital, she alleged that she had been forced to have sex against her will. She indicated that she had not physically resisted, but had not wanted to have sex. She repeatedly refused to identify the man involved. A rape kit was use to collect evidence, including fluids. The detectives investigating the case sought Ms. R. out at a later date, again asking her to identify the man. She said that he was an important member of the community and consistently refused to disclose his name. After making persistent efforts to obtain the name of the man in question, the police determined that Ms. R. would not provide the name and closed their investigation. The rape kit was eventually destroyed.
Months later, Ms. R. called the detective and reported that Mr. Mangan was the man she had referred to on January 24, 1997. Although I do find that Mr. Mangan went to her house that day, had sex with her, and continued to promise progress on the search for the fathers, I cannot find that the Board has met its burden in demonstrating that Mr. Mangan raped Ms. R on the date in question. The account Ms. R. gave on the date of her admission provides the best description of the occurrence. As recorded by Officer McGonagle, Ms. R. told the hospital staff that "this male came over to her residence and had sex with her. She did not want intercourse but did not resist. She feels that not providing the sex will result in her never finding her children."5 I conclude that although Ms. R. did not personally want to have sex with Mr. Mangan, she did so nonetheless, in an attempt to avoid Mr. Mangan's displeasure, and she did not communicate her feelings to him.
As the relationship deteriorated, both parties began to threaten each other. Ms. R. threatened to expose Mr. Mangan, and Mr. Mangan threatened to "take her down with him." He also told her that no one would believe her stories.
In February of 1997, Ms. R. again sought money from Mr. Mangan reminding him that she had been abandoned by both her husband and Mr. Mangan. He gave her another $210. In May, after a trip to visit family in Kansas, she again threatened him if he failed to give her more money. At that point he declined to give her any more money and told her to "do what she had to do." On June 9, 1997, that she called the police and told them that it was Mr. Mangan who had sex with her against her will on January 24, 1997. She then sought out another attorney, Richard Berne, intending to sue Mr. Mangan for his actions. Mr. Mangan did not carry malpractice coverage, and she did not pursue the action.
I am convinced that when Ms. R. came to understand fully that Mr. Mangan had abused his relationship with her, she attempted to obtain a financial advantage through that knowledge. Her repeated phone calls and her demands for money from October of 1996 through June of 1997 belie her assertion that she just wanted to end the relationship completely in the fall of 1996. I am also convinced that the sexual relationship between Mr. Mangan and Ms. R., spanning several years, was, at least initially, consensual. I am not persuaded that she originally had sex with him only, as she said, because "he [sic] my lawyer." Nor do I believe that she asked him about his search for the fathers "every day," over the course of the relationship, thereby keeping the attorney-client relationship foremost in his mind.
I am convinced, however, that Mr. Mangan began the sexual relationship with Ms. R. during a time when he was acting as her attorney. I am also convinced that Mr. Mangan used information gained in his attorney-client relationship to initiate the sexual relationship and in so doing took advantage of her personal situation as well as her desire to find the fathers.6 Further, I am persuaded that he used that information to manipulate Ms. R. in order to maintain a continuing sexual relationship at a time when she would have chosen to cease her contact with him. That Mr. Mangan used his search for the fathers to manipulate Ms. R. became clear through his own testimony to that effect that, although he did find Sue's father, Donald A., he did not tell Ms. R., choosing instead to ?hold onto it" until he had news about both fathers. When he became angry with her, probably in late January of 1997, he ?chucked it all," thereby destroying any important information he had obtained during the search. It is evident then that he misled Ms. R. regarding the success of his search, and he destroyed or made unavailable to her whatever results he had obtained when their personal relationship became difficult.
In sum, Mr. Mangan allowed his personal relationship with Ms. R. to affect his work for her, he took advantage of knowledge gained in his attorney-client relationship with Ms. R. in order to pursue and continue that sexual relationship, and he used his search for the fathers to coerce a continuing sexual relationship with her.
III. Conclusions
Based on all of the evidence presented and the above findings, I draw the following conclusions regarding the Board's allegations.
Allegation 1: Mr. Mangan made inappropriate use of his client escrow account in order to pay a retainer on Ms. R.'s behalf to Attorney William Cote. See M. Bar R. 3.1(a) and 3.6(e)(1),(2).
?No funds belonging to the lawyer or law firm shall be deposited" in a client escrow account. See M. Bar R. 3.6(e)(1),(2). I conclude that the Board has met its burden of proving that Mr. Mangan placed his own funds into his client escrow account, and that from those funds he wrote a check to Attorney Cote on behalf of Ms. R. Whether he did so in order to obscure his personal relationship with Ms. R. or in order to avoid the appearance of a violation of M. Bar R. 3.7(d) is not important. This use of his client escrow account for this purpose constituted an unmistakable violation of Rule 3.6(e)(1), and was conduct unworthy of an attorney for purposes of Rule 3.1(a). I further find that this incident was not a simple accounting error or misunderstanding, but represented Mr. Mangan's failure to keep himself conversant with the rules regarding the use of his client escrow account.
Allegation 2: Mr. Mangan neglected legal matters entrusted to him and failed to account for receipts related to his work on behalf of Ms. R. regarding payment of certain medical bills, and his search for the fathers of two of her daughters. See M. Bar R. 3.1(a), 3.6(a)(3), and 3.6(e)(2)(iii).
"A lawyer shall not ... neglect a legal matter entrusted to the lawyer." M. Bar R. 3.6(a)(3). ?A lawyer shall. .. maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them." M. Bar R. 3.6 (e)(2)(iii) .
Mr. Mangan failed to keep Ms. R. aware of his efforts and progress both with regard to the payment of her medical bills and the search for the fathers. He did not diligently pursue the search for the fathers. Although his willingness to undertake certain work pro bono is laudable, Mr. Mangan never made clear to Ms. R. his intent to work on a pro bono basis. Moreover, regardless of his own decision not to charge a client, Mr. Mangan must comply with the Code of Professional Responsibility. He is not relieved of his duties under the Code merely because he expects that he may never receive compensation. While the client's resources may restrict the amount of services that may be obtained from an attorney, an attorney is not free to accept a client, to promise that work will be done and then fail to attend to the task in a reasonable period of time.
I also conclude that Mr. Mangan failed to account for the expenditures from the $4000 check given to him by Ms. R. He failed to inform her of the creditors' positions as the work progressed, and he failed to inform her when he had completed the work. He further failed to diligently pursue the search for the fathers. He was neither punctual in his commitments nor did he take reasonable measures to keep his client informed on the status of her affairs. He failed to keep her informed of progress, telling her regularly that he was "getting close," and, when she threatened to complain about his work to the authorities, he "chucked it all" apparently destroying any records he had gathered to date.7
I conclude, therefore, that Mr. Mangan violated M. Bar R. 3.6(a)(3) and 3.6(e)(2)(iii), and that these violations were conduct unworthy of an attorney pursuant to M. Bar R. 3.1(a).
Allegation 3: Mr. Mangan physically forced Ms. R. to have sex with him against her will. See M. Bar R. 3.l(a), 3.2(f)(2), or (4).
Although I conclude, as found both in the specific factual findings and the conclusions set out below, that Mr. Mangan made inappropriate use of his attorney-client relationship with Ms. R. to obtain and continue a sexual relationship with her, I find that the Board has not met its burden with regard to the two specific incidents of alleged physically forced sexual activity. Therefore, I conclude that the Board has not proven a violation of M. Bar R. 3.1(a) or 3.2(f)(2) or (4) on that basis.
Allegation 4: Mr. Mangan engaged in a sexual relationship with Ms. R. at a time when Ms. R. was a client of Mr. Mangan, the relationship adversely affected his representation of her, and Mr. Mangan abused the attorney-client relationship in the context of the sexual relationship. See M. Bar R. 3.1(a); 3.2(f)(2), (3)(4); 3.4(b)(1); 3.4(f)(1);8 and 3.6(a)(3).
No rule starkly prohibits a sexual relationship between an attorney and a client. The Code of Professional Responsibility makes clear, however, that the "prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Moreover, the Code does expressly prohibit conduct that may redound to the detriment of a client's legal interests.9 A lawyer shall not ... continue representation of a client if the representation would involve a conflict of interest . . .. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of [the] client would be materially and adversely affected ... by the lawyer's own interests." M. Bar R. 3.4(b)(1). "A lawyer shall not ... neglect a legal matter entrusted to the lawyer." M. Bar R. 3.6(a)(3). Therefore, although a sexual relationship between an attorney and client will not constitute a per se violation of the Code, any such relationship that puts the client's legal interests at a disadvantage or prevents the attorney from diligently pursuing the client's causes will constitute a violation of the cited sections.
Thus, the questions presented are: (1) did Mr. Mangan have a sexual relationship with Ms. R.; (2) did Mr. Mangan have an attorney-client relationship with Ms. R. during that time, and, more specifically, did the search for the fathers, on the facts of this case, constitute the practice of law; and (3) if so, did his sexual relationship with a client result in the violation of any rule contained in the Code of Professional Responsibility. The Board has met its burden in proving that Mr. Mangan engaged in a sexual relationship Ms. R. Indeed, Mr. Mangan does not dispute that relationship although he has minimized the time during which the relationship existed, and the effects of the relationship on Ms. R. Mr. Mangan does, however, dispute the existence of an attorney-client relationship with Ms. R., claiming that he undertook the search for her daughters' fathers as part of a ?hobby." I reject his analysis.
Mr. Mangan has cited multiple cases from other states addressing the definition of the practice of law. Any number of different formulations can be cited.10 As attorneys' roles increase in complexity and overlap with other professions, the answer to that question will continue to evolve. Ultimately, the question will turn on the specific facts of the work undertaken and the understanding of the parties. In determining whether Mr. Mangan was engaged in the practice of law, I have looked to, among other things, the understanding of both Ms. R. and Mr. Mangan, the trust and confidence reposed in Mr. Mangan by Ms. R., the context in which the request for services arose-both physical and conceptual, the skills necessary to the completion of the services, the "need for discretion and confidentiality in rendering the services, and the nature of the services themselves.
Mr. Mangan's agreement to assist Ms. R. in finding the girls' fathers occurred entirely in a setting that would lead a reasonable person to conclude that he accepted the task as her attorney, and Ms. R. did reasonably believe that he was her attorney for that purpose. Ms. R. came to Mr. Mangan as a result of his previous legal work for her. He undertook the work in the same fashion as he had previously undertaken other legal work for her-with little written record, no fee agreement, no contract for services, and financial arrangements that were vague at best.
The requested assistance, although not in the nature of litigation services, falls well within the broad range of issues upon which an attorney may be expected to provide legal assistance. Contrary to Mr. Mangan's argument, the search for the fathers was not a task wholly distinct from the role of an attorney. While it is possible for the same task to be undertaken, albeit in a different manner and with fewer protections for the confidentiality of the "client," by one not schooled in the law, the same can be said for many services provided to clients by their lawyers.11 Ms. R. sought out an attorney to assist her in the search, and could reasonably assume that an attorney would have skills not otherwise available in a nonlawyer, that is, that an attorney who agreed to undertake the search would be conversant with a variety of methods used to locate people and could undertake the search, using his legal skills, in a confidential and discreet manner.
Furthermore, Ms. R. provided Mr. Mangan with intimate, personal information regarding her past which she had every reason to expect that he would keep confidential. He did not tell her that he would not be acting as her attorney in this endeavor. He met with her at his office to discuss the issues. He asked for and she brought to his law office a picture of one of the men for whom Mr. Mangan had agreed to search.
I conclude, therefore, that the facts point compellingly toward the practice of law and an attorney-client relationship. The putative client sought Mr. Mangan out at his office, made contact through his secretary, gave him detailed personal information regarding her past, and was assured that he would undertake the search. In undertaking the search, Mr. Mangan could be expected to bring to bear his knowledge and skills as an attorney, his ability to communicate persuasively, his understanding of the recordkeeping capacities of governmental agencies, and his knowledge of the distinctions between confidential information and information made public by law. Mr. Mangan was acting in the capacity of an attorney when he undertook the task of finding the fathers, and Ms. R. would have been warranted in assuming that he undertook to find the fathers in his capacity as an attorney.12
Because the mere fact of a sexual relationship with a client does not, in itself, constitute a violation of any specific bar rule, it is necessary to address the specifics of the relationship with regard to Mr. Mangan's representation of Ms. R. I am persuaded that the relationship adversely affected Ms. R.'s legal interests and that Mr. Mangan did not pursue the search for the fathers with the same diligence he would have applied had he not gained an advantage in his relationship with Ms. R. by deferring resolution of the quest. I therefore conclude that Mr. Mangan's own interests adversely affected his representation of Ms. R. He did not diligently pursue the search for the fathers, and he ultimately destroyed all progress on the search when he became angry at her in late 1996 or early 1997. These actions constituted a violation of M. Bar R. 3.4(b)(1) and 3.6(a)(3).13
In addition, the facts in this case demonstrate another significant yet subtle detriment of a sexual relationship between an attorney and client. When an attorney enters into a sexual relationship with a client, the client may feel pressured into continuing that relationship for reasons directly related to the attorney's role. Although, again, no rule expressly addresses these results in terms of forbidding a sexual relationship with a client, I conclude that M. Bar R. 3.2(f)(3) and (4) apply to this aspect of Mr. Mangan's conduct. "A lawyer shall not engage in conduct involving . . . misrepresentation [or] ... conduct that is prejudicial to the administration of justice." Id. The abuse of the trust and confidence that a client places in an attorney and the abuse of confidential information gained in the attorney-client relationship would constitute violations of those provisions as would misrepresentation of the progress of legal work undertaken.
Here, Ms. R. had little or no money with which to pay Mr. Mangan for his work in locating the fathers. He was well aware of her limited finances. He used his knowledge of her private life, gained through representing her, to his own advantage and to her disadvantage. He knew her to have had a difficult past with men; he knew that she was seeing a psychiatrist and was heavily medicated; and he knew that she had difficulties with written English.14 He gained most or all of that information through his representation of her. He continued to press her for sex, while continuing to assure her that he was getting close in his efforts to find the two men. Ms. R. felt "trapped." She had limited emotional strength to draw upon, and she believed Mr. Mangan to be an important member of the legal community. He manipulated her by stringing out his search for the fathers, and by assuring her that no one would believe her if she chose to stop seeing him and disclose his misdeeds.
In sum, the facts lead inescapably to the conclusion that Mr. Mangan took advantage of a client. I conclude that Mr. Mangan's use of information gained through the existence of an attorney-client relationship and the abuse of the trust and confidence obtained through that relationship to obtain and coerce a continuing sexual relationship with Ms. R. was conduct unworthy of an attorney, conduct involving misrepresentation, and conduct that is prejudicial to the administration of Justice. See M. Bar R. 3.1(a) and 3.2(f)(3), (4).
IV. Judgment
The Board having met its burden of proof, it is hereby adjudged that Mr. Mangan has violated M. Bar R. 3.1(a); 3.2(f)(3), (4); 3.4(b)(1); 3.6(a)(3); and 3.6(e)(1), (2)(iii). Based on these conclusions, sanctions are warranted.
A hearing on sanctions will be scheduled at the earliest opportunity.
For the Court
Hon. Leigh I. Saufley, Associate Justice ? Maine Supreme Judicial Court
Footnotes
1He was called upon by Ms. R. in 1993 to assist her in understanding her credit report as it related to the payment of the medical bills.
2Ms. R.'s husband found the "Aftercare Instructions," regarding the treatment and medications she received crumpled on the floor of the garage and became angry when Ms. R. would not disclose the man involved. The marriage fell apart after that incident.
3Ms. R.?s supervisor testified that Ms. R. had lost her job at Caswell's Food Liquidation Center as a result of her frequent medication overusage. It is not clear whether she obtained other employment.
4In fact, by that time, Mr. Mangan did have information regarding Donald A., but did not pass it on to Ms. R.
5The hospital apparently misunderstood her search for her daughters' fathers.
6Ms. R. was embarrassed about having had three daughters with three different men, only one of whom she had married.
7Although he testified that he threw away all of his search efforts, some documents remained and appear in the record.
8M. Bar R 3.4(f)(1) speaks only to the commencement of representation where there is a conflict of interest. Mr. Mangan had already undertaken representation of Ms. R. when he began to have a sexual relationship with her.
9It is important to distinguish between bad judgment or bad behavior generally in sexual relationships and bad behavior that finds its source in the attorney's profession.
10Not surprisingly, the Code does not attempt to define the "practice of law" because the definition must be determined in the context of facts unique to each situation. The existence of the relationship will be dependent in great part on the understanding of the putative client and, to a certain extent, the attorney. It may be "implied from the conduct of the parties." Board of Overseers of the Bar v. Dineen, 500 A2d 262, 264-65 (Me. 1985). Accordingly, I have not attempted herein a more precise definition of the practice of law, nor have I included a review of those cases, nationwide, where courts have struggled with the definition in other contexts.
11An example is the work that Mr. Mangan undertook on Ms. R.'s behalf to convince the medical service providers to accept less than full payment on each bill. Although a nonattorney could have assisted her in that task, it cannot be disputed that she became Mr. Mangan's client when he agreed to negotiate on her behalf.
12Even if Mr. Mangan's services to Ms. R in the search for the fathers constituted only "law-related services," Mr. Mangan would still be subject to the Code of Professional Responsibility. See M. Bar R 3.2(h)(1)(i).
13Because the only matters properly before the court for adjudication are the alleged violations of the Code of Professional Conduct, this opinion does not address related concepts of breach of fiduciary duty.
14?The factors leading to the client's trust and reliance on the lawyer also have the potential for placing the lawyer in a position of dominance and the client in a position of vulnerability. . . . Thus, the more vulnerable the client, the heavier the obligation of the lawyer to avoid engaging in any relationship other than that of attorney-client." ABA Comm. On Ethics and Professional Responsibility, Formal Op. 92-364 (1992).
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: BAR 99-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 10, 2000
Respondent: Thomas M. Mangan, Esq.
Bar Number: 001743
Order: Disbarment
Disposition/Conduct:
Findings and conclusions were entered in this matter on February 28, 2000, and are incorporated herein. A hearing on sanctions was scheduled for Wednesday, March 1, 2000. At the request of Mr. Mangan and Attorney Sharon, the matter was continued to March 8, 2000, to allow Mr. Mangan further time to prepare to address the Court. Having heard from counsel, Mr. Mangan, and Ms. R., sanctions are entered, pursuant to M. Bar R. 7.2(b)(5), based on the following analysis.
The primary focus of the Court in determining the appropriate sanction must be Mr. Mangan's conduct in abusing his relationship with a client to gain and continue a sexual relationship with her. This does not mean, however, that his conduct in misusing his client trust account, failing to account for his client's moneys and failing to diligently pursue his client's request that he locate the fathers of her daughters can be lightly dismissed. Nonetheless, my analysis will focus primarily on the most egregious behavior, the misconduct involved in the sexual relationship with a client.
Any analysis of the appropriate sanction to be imposed must necessarily begin with the purpose of the rules. See M. Bar R. 2(a). A proceeding of this nature constitutes "an inquiry to determine the fitness of an officer of the court to continue in that capacity." Id. It is important for all parties to keep in mind the admonition in the rules that the goal of the Court today "is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." Id. Thus, in determining whether the sanction, if any, for the conduct at issue should consist of a reprimand, a suspension for a definite period, or disbarment, see M. Bar R. 7.2(b)(5). I look to the efficacy of each sanction in helping to assure that Mr. Mangan would not conduct himself in a similar fashion in the future.
In determining the appropriate sanction in this matter, I have looked to the following sources for guidance: M. Bar R. 7.1(e)(2)(D);1 Standards for Imposing Lawyer Sanction promulgated by the American Bar Association;2 and sanctions imposed on other attorneys as a result of prior decisions of the Board, single justices, and the Law Court in Maine. I have also considered decisions from other jurisdictions provided to me by counsel, particularly those addressing sanctions imposed on attorneys who have taken advantage of clients through sexual relationships. To organize the facts considered, I have used the framework suggested by the ABA Model Standards and M. Bar R. 7. 1(e)(2)(D).
A. What duties were breached?
As noted in the findings entered earlier in this case, the mere fact that an attorney has a sexual relationship with a client does not, in itself, violate the provisions of the code. Whether an attorney may ever enter into a sexual relationship with a current client without being found to have violated a duty to that client is not before this Court. Despite Mr. Mangan's protestations to the contrary, the facts at bar do not demonstrate a sexual relationship that just happened to coexist with an attorney-client relationship. Instead, it is evident that Mr. Mangan used his role as an attorney to obtain and continue a sexual relationship with a vulnerable client. His use of confidential information gained through his legal work for Ms. R. and his manipulation of the search for the fathers to coerce her continuing compliance were actions that violated his primary duty to his client; that is, to conduct himself in a manner that is not "adverse" to his client. See M. Bar R. 3.4(b)(1). The abuse of the confidence and trust of the client in such a fashion is entirely counter to the duties owed to a client.
Separately, Mr. Mangan violated his duty to account to his client for the expenditure of her funds, and violated his duty of diligence in pursuing the assistance she sought. He also violated his duty to the public and his clients in general by misusing his client trust fund. These errors would be of less concern to the Court had Mr. Mangan not been subject to disciplinary proceedings for similar conduct in the past.
B. What was Mr. Mangan's mental state at the time of his breach of duty?
The question presented by this inquiry is whether Mr. Mangan acted intentionally, knowingly, recklessly, or negligently. This question highlights the difficulty presented by the particular facts of this case. I conclude that Mr. Mangan did intentionally seek out a sexual relationship with a woman he knew, through his law practice, to be vulnerable-emotionally, financially, and culturally. I further conclude that he gained this knowledge through his representation of her. More seriously, this is not the first time Mr. Mangan made sexual advances to a similarly vulnerable client. Thus, it appears that Mr. Mangan takes advantage of women in need of assistance. To the extent that two women can constitute a pattern, this would be a dangerous pattern.
The fact that Mr. Mangan wrongly used the knowledge, power, and control he obtained through his profession in order to obtain an intimate personal relationship is clear. What is much more complex is his state of mind in doing so. I believe that Mr. Mangan's assertions that he was, for a time, in love with Ms. R. are genuine. He did attempt to assist her financially, and thought of himself as taking care of her. Unfortunately, the result is the same whether he developed a real affection for her or not. His behavior constituted a breach of trust and manipulation for his own personal advantage. I must conclude that his conduct was knowing and reckless at the same time.
With regard to his misuse of the client trust fund, I have no doubt that Mr. Mangan was aware that he should not place his own funds in that account and that he did so nonetheless, assuming that it was "not a big deal." Given his past reprimand for this same conduct, even though that reprimand occurred many years ago, it was a big deal.
I also conclude that he knowingly and intentionally delayed work on finding the fathers to gain an advantage over Ms. R., that he did so to her detriment, and that he negligently failed to attend to an accounting of the medical bill payments.
C. What was the extent of the injury caused by Mr. Mangan's misconduct?
The injuries are somewhat unusual in the context of an attorney discipline case. Ms. R. has not likely suffered any significant financial injury due to Mr. Mangan's conduct. Indeed, he gave her money when she was in difficult financial circumstances. Nor did he neglect a litigation matter such that she has lost a right to an adjudication. It is likely that the search for the fathers can be completed through others. Although the, passage of time is, in itself, a loss for her daughters, it is unlikely that irreparable harm has occurred.
The harm is in the nature of emotional harm to Ms. R.3 and harm to the "administration of justice." More precisely, Mr. Mangan's conduct emotionally injured a client and has injured the profession. Ms. R. is still struggling with the aftermath of a multi-year relationship in which she was not always a willing participant. Whether the troubled relationship might have occurred even in the absence of the attorney-client relationship cannot be known. The fact is that Mr. Mangan used his profession and abused the unique trust and confidence placed in him by his client to meet his own needs.
D. What are the aggravating and mitigating circumstances?4
I find these facts in mitigation:
I find the following aggravating factors:
(i) He received a private reprimand in 1983 for violation of the bar rules related to the misuse of his client trust account.
(ii) He received another private reprimand in 1985 for failing to account to a client as to the specific manner in which he claimed to have earned his fees.
(iii) He was reprimanded by the Grievance Commission in 1987 for failing to punctually and diligently attend to a client's litigation responsibilities.
(iv) He received a public reprimand in 1997 for violating the requirement that he attend to written contingency fee agreements, and that he account to a client's medical providers in a timely fashion. At least in part, that reprimand addressed issues similar to those presented by the Board in this proceeding. Mr. Mangan's office practice and lack of timeliness in accounting appear not to have improved significantly.
(v) He was suspended from practice for thirty days in 1997 as a result of, a single justice's determination that he had subjected a vulnerable female client, who was also his employee, to unwanted sexual advances.
I conclude that the Board has demonstrated more than an unintended violation of the rules and has proved that Mr. Mangan's misconduct was neither isolated nor inadvertent. He has taken advantage of two vulnerable women who came to him for legal assistance, he has been lax in accounting for the use of clients' funds, and he has knowingly misused his client trust fund.
I also reject his argument that, until my ruling in this case, he could not have known that his conduct with Ms. R. would constitute a violation of the rules. To the contrary, any reasonable attorney would understand that taking sexual advantage of a vulnerable client in these circumstances is conduct that cannot be condoned. Nor is the determination that Mr. Mangan actually took advantage of Ms. R. identifiable only in hindsight.
In instigating the relationship, he was well aware that she had had a troubled history with men, that she suffered from depression and was emotionally fragile, that she was financially limited, that she had suffered an injury and received little compensation, and that English was not her first language. To be sure, Ms. R. is an adult who had previously been represented by other attorneys. Had she understood the situation better and had she been able to assert herself, she could have said no to Mr. Mangan in no uncertain terms and could have attempted to obtain legal assistance elsewhere. That she did not, however, does not excuse his behavior.
Public confidence in the profession is crucial to the administration of justice. People seeking the assistance of an attorney are, by definition, often in circumstances that render them more vulnerable to exploitation. They must trust that placing their confidence in the hands of a member of the bar will not subject them to further exploitation, and certainly they must trust that confidential information conveyed will not be used to the personal advantage of the attorney. An attorney must be vigilant not to allow his or her own interests to work to the disadvantage of a client. Mr. Mangan failed to do so with Ms. R.
Any sanction imposed must assure that Mr. Mangan does not have access to vulnerable female clients unless and until he comes to understand that his conduct was unacceptable and, more importantly, why it was unacceptable. His previous thirty-day suspension for similar behavior has had no effect on his understanding of the wrongfulness of his conduct.5 Thus, any sanction must remove Mr. Mangan from the practice of law for a significant period of time and must preclude reinstatement until he has demonstrated the necessary insight into his misconduct. It must also address his misuse of the trust fund and his lax accounting practices.
Mr. Mangan asks that the Court impose no more than a public reprimand. I conclude that a reprimand would completely fail to address the need to protect the public. The Board seeks a full disbarment. Mr. Mangan's attorney suggests that a suspension for a specific period could serve the purposes of the rules.
As a result of Mr. Mangan's failure to address his misconduct in any way, I have reluctantly concluded that disbarment is the appropriate sanction for the multiple violations demonstrated by the Board. Although I have considered whether a suspension with conditions might accomplish the same result in a less draconian manner, any such suspension would have as its goal the opportunity for Mr. Mangan to meet certain identified conditions before returning to practice. On the facts before me, I would have to construct those conditions out of whole cloth.
Mr. Mangan does not acknowledge that he committed any mistake. He was reluctant even to admit that his misuse of his client trust fund was wrong and did so only by indicating that his attorney told him he must admit that he should not have done it. He has never apologized to Ms. R. or, to my knowledge, to the woman addressed by Justice Clifford in the 1997 suspension. He does not suggest any conditions under which he could more expeditiously be returned to the practice of law.6
Given his lack of remorse, his lack of concern regarding his accounting responsibilities, the absence of a plan to avoid future misconduct,7 the history of previous sanctions, and the significant risk to the public should he continue to practice law, I find that I have no choice but to disbar Mr. Mangan. Reinstatement will not be considered unless and until he has taken significant action to address the violations set out in the findings and conclusion of February 28, 2000, and can demonstrate a real understanding of his misconduct as well as an ability to avoid the misconduct in the future.
Pursuant to M. Bar R. 7.3(I)(1)(A), the disbarment shall take effect thirty days after entry of this judgment. Mr. Mangan shall immediately take steps to wind up his legal responsibilities with any remaining clients and shall comply with M. Bar R. 7.3(I)(1).
The entry is:
It is hereby ordered that Thomas Mangan is disbarred from the practice of law. His name shall be removed from the roll of attorneys authorized to practice law in the State of Maine. Notice of disbarment shall be given pursuant to the Maine Bar Rules.
Consistent with the terms of this judgment and the findings and conclusions previously entered, Mr. Mangan is authorized, pursuant to M. Bar. R. 7.3(j)(1), to petition for reinstatement after the expiration of two years from the date of this judgment.
For the Court
Hon. Leigh I. Saufley
Associate Justice
Maine Supreme Judicial Court
1This provision of the rules directs a panel to consider, inter alia, four specific factors when determining the sanction for an attorney's misconduct. They include consideration of the duty owed, the attorney's mens rea, the injury caused by the misconduct, and the existence of aggravating and mitigating factors. Although no similar provision is found in the section addressing sanctions imposed by the Court, I conclude that these are appropriate factors for consideration by the Court.
2The model standards require inquiry on the same four issues addressed in M. Bar R 7.1(e)(2)(D). See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Model Standard 3.0 (1992).
3Emotional harm in the context of attorney discipline matters ordinarily accompanies the clients distress at learning that his or her rights have been compromised by the attorney's misconduct.
4See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standards 9.1,9.22,9.32.
5That suspension was imposed at or after the end of his relationship with Ms. R. It cannot be expected, therefore, that it could have changed his behavior with Ms. R. It can be expected, however, that the Court's action in 1997 would have led Mr. Mangan to consider his behavior with Ms. R. in a different light and begin to understand why it constituted a violation of the code. That does not appear to have occurred.
6A separate sanctions hearing was scheduled in order to allow the parties, and particularly Mr. Mangan, the opportunity to argue for a more specifically tailored sanction. That hearing was then continued to allow Mr. Mangan additional time to present his argument more constructively. Despite his attorney's best efforts, however, Mr. Mangan declined the tacit invitation of the Court.
7Although I would have considered requiring individual counseling to assist Mr. Mangan in understanding the existence of, and harm caused by, his abuse of his role as an attorney, there is no evidence before me to indicate that such counseling could be effective.
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-08-04
Issued by: Single Justice
Date: February 12, 2009
Respondent: Seth T. Carey, Esquire
Bar Number: 009970
Order: Suspension
Disposition/Conduct: Communication with Adverse Party; Competency
This matter was initially presented to the Court upon a Petition for Temporary Suspension and Expedited Hearing dated May 21, 2008, submitted pursuant to Maine Bar Rule 7.3(c). The petition was merged and consolidated by agreement of the parties1with an Information dated September 10, 2008. An evidentiary hearing was held on October 7 and 8, 2008. The Plaintiff was represented by Assistant Bar Counsel Aria Eee and the Defendant (hereinafter "Mr. Carey") was represented by Stephean C. Chute, Esq. At the close of the evidence, the parties were invited to submit memoranda addressing Mr. Carey's motions to strike and motions in limine. After this Court entered its order of November 25, 2008, the parties were invited to submit written closing arguments. Oral argument was held on February 6, 2009.
Findings of fact
The Plaintiff offered evidence of a number of circumstances which it suggests constitute violations of specific bar rules. In some instances, the parties agree upon the facts. The testimony of the witnesses, however, included some significantly irreconcilable accounts of the events at issue. The Court addresses the events separately and finds as follows.
The Burgess Divorce
Mr. Carey represented Brandon Burgess in a divorce action against Tara Roy. The evidence suggests that the parties had a protection from abuse order pending at the time of the divorce. An interim order required Brandon to pay child support to Tara and to deliver a jeep to her for use during the divorce proceedings. When the jeep was not delivered to Tara in a timely fashion, Tara's attorney, David Austin, Esq., wrote to Mr. Carey demanding its delivery. When he received no response, Austin commenced an action against Brandon for contempt.
In the meantime, Brandon approached Mr. Carey and suggested that an agreement had been worked out between Tara and himself to resolve all issues (including the pending contempt action). Brandon asked Mr. Carey to reduce the agreement to writing in appropriate legal terms and he (Brandon) would present it to Tara.
Mr. Carey produced the document for the parties' signatures. Brandon presented it to Tara for her consideration. While Brandon was urging Tara to sign the document, he was speaking with Mr. Carey by using the speakerphone function of his cellular telephone. Tara was able to hear Mr. Carey. Because Tara felt that Brandon and Mr. Carey were pressuring her to sign the document, she refused to do so and later telephoned her attorney to report the incident.2
Attorney Austin confronted Mr. Carey shortly thereafter with a sharp admonition that he must not "go behind [his] back" to get his client's signature on the document. Mr. Carey did not acknowledge any wrongdoing to Attorney Austin.3 Shortly thereafter, Attorney Austin learned that there were two settlement documents (Board Exhibits 6 and 7) in his client's possession, one of which was apparently prepared by Mr. Carey after Austin's admonition.4
The issue of the settlement proposal documents was addressed briefly during the divorce trial. District Court Judge McElwee confirmed that Austin was surprised by the existence of the settlement documents. Despite Mr. Carey's claims that the documents were presented to Attorney Austin prior to submission to Tara, this Court finds that the evidence resoundingly suggests they were not.
Michelle Gagnon v. Joshua Gagnon
Mr. Carey testified that he signed some paperwork prepared by his father and transported it to the Rumford District Court for filing.5 The paperwork included an entry of appearance and a motion to continue on behalf of Michelle Gagnon. After arriving at the courthouse, he noticed Joshua Gagnon (the defendant in the matter involving Michelle Gagnon) sitting in the waiting area. Mr. Carey approached him and engaged him in conversation.6 The conversation clearly concerned substantive matters involving the pending proceeding. When Joshua's attorney noticed Mr. Carey speaking with Joshua, he admonished him to avoid contact.
Mr. Carey testified that he was unaware of the fact that Joshua was a party to the proceeding that was the subject of the paperwork he had signed and was filing with the court. He further testified that he was not aware that the subject matter of their conversation was germane to contested issues. While Mr. Carey's professed ignorance of these facts is arguably possible, it is not plausible.
The Judge Complaints (Judge McElwee)
District Court Judge John McElwee testified regarding the circumstances that lead to his filing of a complaint against Mr. Carey with the Board of Overseers of the Bar. During the course of the trial in the Burgess case, Mr. Carey offered the unsigned settlement agreement, noted above, into evidence despite the fact that it was completely inadmissible and improper. Judge McElwee noted additional inappropriate actions by Mr. Carey during the trial, including the mention of facts not in evidence during closing argument, and the use of inflammatory language (e.g., "lied" or "lies") that was simply not justifiable or appropriate in the context of the actual evidence. When Judge McElwee asked Mr. Carey to show opposing counsel the document he was using to question a witness, Mr. Carey refused and said he would show it to him later.
In order to avoid embarrassing Mr. Carey in the presence of his client, Judge McElwee called a recess to instruct Mr. Carey in chambers on the proper procedure for using documents to examine a witness (and the requirements of M.R. Evid. 106). Rather than accepting that gentle tutelage, Mr. Carey responded to the effect of, "How would you expect me to know that? You don't give me enough court appointments to learn these things."
The Judge Complaints (Judge Stanfill)
Judge Valerie Stanfill of the Maine District Court filed a complaint with the Board of Overseers of the Bar as a result of two circumstances that caused her to question Mr. Carey's core competence to handle representation in criminal matters. The first instance occurred during a trial on a motor vehicle offense. Diane Ronin was charged with operating after suspension. Although the Judge suspected some fundamental weaknesses in the State's case, Mr. Carey remained oblivious to them and undertook ineffective examination strategies.
During cross-examination of a police officer, his questions were primarily of the "Are you sure?" variety. During the direct examination of his own client, he repeatedly used leading questions despite repeated objections by the State's attorney, and the Judge's sustaining of those objections. Judge Stanfill was left with the clear impression that Mr. Carey was unaware of the nature and structure of leading questions and, equally as important, how to proceed without using them. The Assistant District Attorney who prosecuted the case testified that Mr. Carey "just froze" and could not question effectively.
The second event that prompted Judge Stanfill's concern occurred during a bail hearing in Farmington. After the prosecutor presented a request for cash bail, Mr. Carey responded that the bail requested for his client seemed a little high, but offered nothing else. Judge Stanfill inquired about his client's circumstances and other matters that might be germane to setting bail. Mr. Carey made no effort to offer circumstances that might mitigate the State's cash bail request.
Both the Assistant District Attorney and defense attorney Leonard Sharon, Esq., an expert called by Mr. Carey, testified that a competent defense attorney is not required to offer generic or gratuitous comments during a bail hearing, but that some manner of advocacy on behalf of the client is demanded.
Although Judge Stanfill testified that she did not believe any transgressions of constitutional magnitude occurred at the hearing, she sincerely believed that they could in the future, and she directed the Clerk of Court to refrain from appointing Mr. Carey to any future criminal defense matters.
Statements at Grievance Commission Proceedings
Assistant Bar Counsel cites two statements made in conjunction with the Grievance Commission proceedings that implicate violations of the Maine Bar Rules. First, when asked if he had had any contacts with law enforcement since an earlier incident that apparently occurred during a town meeting, Mr. Carey responded in the negative. In fact, he was charged by police with unrelated conduct that allegedly occurred in the interim.7
Mr. Carey rejects Assistant Bar Counsel's assertion. He argues that the question that prompted his denial was posed in the context of, or following, a question relating to his problems with law enforcement at town meetings. He argues that his answer was given in that limited context, i.e., that he had no subsequent contact with law enforcement at town meetings. The Court finds his answer and argument to be blatantly disingenuous. If his denial was intended to be made in a limited context, it should have been so stated. His unqualified answer clearly represented that he had had no contact with public safety officials in any circumstance. Counsel and the tribunal reasonably accepted it as such, and were thus misled.
As the Grievance Commission proceedings were concluding, the Commission received the complaints from Judges McElwee and Stanfill, prompting Assistant Bar Counsel to commence a "fast track" Motion for Temporary Suspension and Expedited Hearing. During the course of the hearings, Mr. Carey stated that he was going to wind down his practice and possibly undertake some additional study. On the strength of this representation, Assistant Bar Counsel assumed that the public would be protected by the fact that Mr. Carey would be voluntarily withdrawing from the active practice of law. In reliance upon Mr. Carey's statement of intent, Assistant Bar Counsel did not press forward with the motion, and focused her efforts on bringing the dispute to an agreed-upon resolution. In fact, Mr. Carey has continued to practice law and now characterizes his earlier representations as being merely "aspirational." Again, the Court finds his actions disingenuous.
Statements During Testimonial Hearing
During the course of his sworn testimony before this Court, Mr. Carey referred to Assistant Bar Counsel as "the most unethical lawyer I have ever met." He also suggested that there was a conspiracy, or at least complicity, between Attorney Austin and Judge McElwee in making the complaints against him and testifying at the hearing before this Court.8
Mr. Carey's testimony at the hearing was evasive, combative, and accusatory. He acknowledges no misconduct or deficiency on his part, and asserts that he will be a fine trial lawyer some day. During closing argument, his counsel pointed out that a disciplinary hearing can be a stress-inducing experience, and suggested that his client succumbed to the pressure and made some inappropriate statements, for which he apologized on behalf of Mr. Carey.
Conclusions
The Maine Bar Rules provide standards for attorneys with respect to their practice of the profession of law. When formal proceedings are commenced against an attorney pursuant to these rules, the purpose is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to properly discharge their professional duties. M. Bar R. 2(a). All attorneys in the State of Maine are subject to the oversight and supervision of the Maine Supreme Judicial Court. M. Bar R. l(a).
Rule 3.6(f) of the Maine Bar Rules governs communications with adverse parties, and provides as follows:
This rule articulates the long-recognized principle that a lawyer will not seek to communicate, in any fashion, with another lawyer's client on matters germane to the subject of the representation. If Lawyer A seeks to interact with Lawyer B's client on any issue related to Lawyer B's representation, he must go through Lawyer B. Any effort to avoid the requirements of this rule threatens to undermine the essence of the lawyer/ client relationship.
Mr. Carey seeks to excuse his involvement in the presentation of the settlement documents to Tara Burgess by claiming that it was not him doing the contacting, it was his client, and litigants always have the prerogative of talking to each other. While he is correct on the second point, his involvement was not passive. His client may have provided him with the elements of the alleged agreement, but Mr. Carey actually prepared the legal document, complete with jurat and appropriate legal language. He was not a passive bystander, rather he actively facilitated, furthered, and participated in the process. Indeed, when the document was presented to Tara by Brandon, Mr. Carey was in communication with the parties through the speakerphone function of Brandon's cellular telephone.
Mr. Carey's failure to route the settlement documents that he prepared through opposing counsel constituted a clear violation of Rule 3.6(f). His conduct became all the more egregious when the second document was apparently presented to Tara after Attorney Austin expressed his disapproval over Mr. Carey's handling of the first one.
Mr. Carey's involvement in Brandon's machinations implicates another troubling violation of the rules. The District Court ordered Brandon to deliver the Jeep to Tara during the pendency of the proceedings. When Brandon refused to do so-perhaps as leverage to induce Tara to settle-Mr. Carey had a clear, solitary obligation: to advise Brandon to comply with the order forthwith. Indeed, Mr. Carey asserts that he did so advise Brandon. However, when he assisted in preparing the settlement proposal documents (which included dismissal of the contempt action against Brandon as a central objective), he facilitated his client's ongoing violation of the District Court's order in violation of Rule 3.6(d).
Mr. Carey's contact with Joshua Gagnon, which occurred shortly after the Burgess hearing, demonstrates his continuing disregard of the "no contact" rule. Again Mr. Carey seeks to minimize his transgression by asserting a lack of knowledge of the fact that Joshua was the opposing party on the case he was attending that day. The record clearly demonstrates that Mr. Carey signed the pleading entering his father's appearance. The parties' names appear on the pleading. The question of whether Mr. Carey's transgression was occasioned by ignorance or design concerns only the degree of his misconduct. His attendance at court on the date of the Gagnon hearing, while representing a party to that proceeding, charges him with the knowledge of the name of the opposing party. Mr. Carey's conversation with Joshua regarding matters clearly germane to the contested issues constituted a clear violation of Rule 3.6(f).
Mr. Carey's answer during the Grievance Panel hearing that he had no contact with law enforcement is simply a false statement. His efforts to distinguish it by invoking the "context" of the statement simply lacks credibility. His "cat and mouse" approach to Assistant Bar Counsel's questioning discloses a profound lack of candor and a clear willingness to mislead counsel and the tribunal. His statement constitutes a violation of Rule 3.7(b).
The purpose of Mr. Carey's statement of intent to withdraw from the practice of law, while troubling, is less clear and falls short of a violation of the Maine Bar Rules. The Court is unable to determine on this evidence whether his statement was merely a momentary, fleeting thought or an intentional effort to divert Assistant Bar Counsel from the expedited procedures provided in Maine Bar Rule 7.3.
No judge expects a new lawyer to arrive at the practice of law with the same finely-honed skills that come only after years of experience. However, the rules clearly require (and judges and the public expect) all lawyers to demonstrate an understanding of, and competency in, the core skills required for representation. M. Bar R. 3.6(a)(1),(2). The deficiencies identified by the complaining Judges in this matter illuminate a lack of fundamental skills, competencies, and preparation in trial work in general, and criminal defense in particular. Accordingly, this Court finds that the Plaintiff has sustained its burden in proving violations of the aforementioned rules.
Finally, Mr. Carey's intemperate remarks suggesting unethical conduct on the part of the Board's counsel, and collusion between a Judge and an attorney, border on violations of Rule 3.7(b). However, this rule requires proof of a false statement knowingly made. In this instance, the element of a knowing misstatement may be missing because it appears Mr. Carey may actually, sincerely believe these assertions-an equally disturbing possibility, but not actionable under the rules.
Order
Upon this Court's finding of the violations of the Maine Bar Rules as noted above, it is hereby ORDERED that Seth T. Carey be SUSPENDED from the practice of law for a period of six months and one day commencing March 30, 2009. Pursuant to Rule 7.3(j)(1), he must thereafter petition for reinstatement. As a condition for reinstatement, he must demonstrate that he has undertaken further education in trial advocacy and professional ethics.9 He must also demonstrate that he has obtained the services of an established trial attorney, not a relative or a member of his firm, with demonstrated expertise in trial and criminal defense advocacy to monitor and mentor him for a period of one year following reinstatement.
It is also ORDERED that Seth T. Carey pay the reasonable expenses of the Board incurred in the investigation and hearings necessitated in this matter. The Board's certification of costs and expenses will be considered separately from this proceeding.
The Board is authorized in its discretion to file additional Informations directly with the Court concerning any new complaints of professional misconduct allegedly committed by Mr. Carey during the year following his reinstatement to practice.
The Clerk may enter this Order upon the docket by reference.
For the Court
Hon. Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court
Footnotes
1Although Mr. Carey agrees with the procedural aspects of this consolidation, he has consistently objected to the submission of any factual allegations that were not expressly presented to the Grievance Commission as part of the earlier proceedings. See this Court's order dated November 25, 2008.
2Mr. Carey apparently has some manner of an ongoing relationship with Brandon; the subpoena to testify at the October 7, 2008, disciplinary hearing was personally served upon Tara by Brandon.
3Mr. Carey testified that he told Austin that he thought he was "off the case" at that time an unsupportable assertion given the pendency of the contempt motion filed earlier by Austin.
4The second document purports to dismiss the contempt motion.
5Mr. Carey is engaged in a law practice partnership with his father.
6Mr. Carey testified that he knew Joshua from high school, but did not have a particularly good relationship with him as they traveled in different social circles. He testified that their conversation was just "killing time."
7Apparently the charge (assault) has since been dismissed.
8Mr. Carey testified that, "It's unfortunate that this [complicity] has not been explored further in this matter," and that he had seen Judge McElwee and Austin talking in the courthouse during the proceedings. When asked if he had any substantive evidence to support his complicity suggestions, he stated, "I have no evidence, but in this case, nothing would surprise me."
9This education must be undertaken in a meaningful and formal instructional environment, not through self-study or prerecorded instructional videos.
Board of Overseers of the Bar v. Donald F. Brown
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Docket No.: GCF #05-252
Issued by: Grievance Commission
Date: August 1, 2006
Respondent: Donald F. Brown
Bar Number: 008541
Order: Reprimand
Disposition/Conduct: Standards of Care and Judgment; Commencement
Report of Proceedings, Findings, Conclusions and Disposition
The above matter was heard by the Grievance Commission Panel A, with Tobi L. Schneider, Esq. serving as a substitute on July 11, 2006, at the Key Bank Building, offices of Vafiades, Brountas & Kominsky, in Bangor, Maine 04402. Pursuant to a disciplinary petition dated April 14, 2006, with proper notice being provided, a disciplinary hearing open to the public was conducted on this date pursuant to Maine Bar Rules 7.1 (e) (1), (2) to determine whether the grounds exist for the issuance of a reprimand or whether probable cause exists for the filing of an information with the Court. The Board of Overseers was represented by Attorney Bar Counsel Aria eee, Esq. and Respondent, Donald F. Brown, Esq. represented himself. Witnesses included Attorney Brown and the complainant, Muriel E. Dinsmore, of Brewer, Maine.
Background
The pleadings consisted of a Petition filed by the Board and Response filed by the Respondent. In the course of the proceedings Exhibits 1 through 9 were admitted without objection. The panel considered Exhibits 1 through 9 as well as the oral testimony of Muriel E. Dinsmore and the Respondent Attorney Brown.
On August 9, 2004, Muriel Dinsmore had a consultation with Attorney Brown at his office. The purpose of the consultation was to discuss personal injuries she sustained when she slipped on ice when entering the Jo Ann Fabrics Store in Bangor, Maine, on February 2, 2004, resulting in an injury to her right elbow and wrist. As a result of that injury, she sustained a fracture and received medical attention. Mrs. Dinsmore sustained another injury on May 12, 2004, when she apparently fainted and fell, while at work, reinjuring herself. This second incident resulted in additional medical treatment. After receiving treatment for the second incident on June 28, 2004 Mrs. Dinsmore was released to return to work by her doctor. She presented her employer Pro Tea with a form stating that she could return to work with no restrictions, but her employer refused to reinstate or rehire her or otherwise allow her back to work. At the consultation with Attorney Brown on August 9, 2004, both injuries were discussed. Pursuant to the consultation, Attorney Brown agreed to investigate two potential causes of action, to wit:
Mrs. Dinsmore testified that over the next several weeks she made numerous efforts to contact Attorney Brown to provide him with additional information. Attorney Brown denied that he ever received any additional phone calls from Mrs. Dinsmore, other than having spoken with her on one occasion, perhaps in November of 2004.
By a letter dated November 2, 2004, Mrs. Dinsmore wrote to Attorney Brown (Exhibit #9). In that letter, some additional information was provided. It is noted, however, that prior to that date numerous documents had previously been provided to Attorney Brown, which contained much of the factual background information regarding the identity of Mrs. Dinsmore's employer and the dates and sequence of events.
By a letter dated December 7, 2004, Attorney Brown wrote to Mrs. Dinsmore regarding the two matters. At that time he specifically stated to her that he did not believe she had a case regarding her slip and fall claim against Jo Ann Fabrics. Regarding the employment case against ProTea, however, he indicated to her that her claim "may have some merit". In the letter he asked Mrs. Dinsmore to provide, in writing, additional information. He concluded the letter by stating "Once I have received this information, I will then write a letter to your former employer asserting a claim on your behalf? (See Exhibit #3).
By a letter dated December 14, 2004, Ms. Dinsmore wrote to Attorney Brown providing the additional information he had requested. After December 14, 2004, there was apparently no additional communication between Attorney Brown and Mrs. Dinsmore until February 9, 2005. By a letter dated February 9, 2005, Attorney Brown wrote to Mrs. Dinsmore indicating he was declining to represent her in either of the claims against Jo Ann Fabrics or ProTea.
By February 9, 2005, the statute of limitations to assert a claim against ProTea with the Maine Human Rights Commission had expired. Attorney Brown testified that he at no time had considered or become cognizant of the running of the six month statute to file a claim with the Maine Human Rights Commission. There was never any communication from Attorney Brown to Mrs. Dinsmore advising her of the statute or to take necessary steps to protect her interests.
Findings
After consideration of all the evidence submitted at the Hearing, the Panel makes the following findings:
Discussion
Based upon the above findings, the Panel finds that Bar Rules 3.4(a)(2) and 3.6(a)(3) were violated by Attorney Brown. Those rules state:
(a) Disclosure of Interest, Commencement, and Termination: General Provisions.
(2) Commencement. Representation of a client shall be deemed to have commenced when the lawyer and the client, by conduct or communication, would each reasonably understand and agree that representation commences. Commencement of representation shall be judged by an objective, not a subjective, standard. It is the obligation of the attorney to clarify whether representation has commenced. If the client reasonably believes that representation has commenced and the attorney has failed to clarify that it has not, then representation shall have commenced.
3.6 Conduct During Representation
(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not
(3) neglect a legal matter entrusted to the lawyer.
The facts require a finding that she believed legal representation had commenced by the time of the exchange of the November 2, correspondence from Mrs. Dinsmore and the December 7, 2004, correspondence from Attorney Brown. Once legal representation commenced, the standards of care and judgment required by Rule 3.6 are applicable. In this case, Attorney Brown was neglectful of the legal matter entrusted to him by his failure to identify the expiring Statute of Limitations and by his failure to either take action to preserve her claim or otherwise advise Mrs. Dinsmore of the Statute so that she could take appropriate action. Missing the Statute of Limitations which deprived Ms. Dinsmore of her rights to assert a claim before the Maine Human Rights Commission is not minor; we could not find that it resulted in little or no injury.
Accordingly, based upon the evidence and the record before it, Panel A determines that the appropriate disposition of this Petition is that the Respondent, Attorney Brown, should and hereby is reprimanded.
For the Grievance Commission
Harold L. Stewart II, Esq.
Tobi L. Schneider, Esq.
Raymond J. Cota
Board of Overseers of the Bar v. Lenore Anderson (f/k/a Lenore Grant)
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Docket No.: BAR-01-04
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 12, 2002
Respondent: Lenore Anderson (f/k/a Lenore Grant)
Bar Number: 003071
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of an Attorney; Misconduct involving Illegal Conduct, Deceit and Misrepresentation; Excessive Fees; Withdrawal from Employment; Standards of Care and Judgment; Neglect; Preserving Identity of Funds and Property
Order of Disbarment
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1) by an information filed by the Board of Overseers of the Bar against the Defendant Lenore Anderson (f/k/a Lenore Grant). Ms. Anderson (f/k/a Grant) has been served with a copy of the information and summons at her current residence in Rochester, New York. She failed to file an answer or any responsive pleadings to it or to the Board's Motion for Default of October 21, 2002. She is therefore hereby defaulted.
Ms. Anderson (f/k/a Grant) is a former Maine attorney who practiced law in Maine until approximately July 2001, and was subject to the Maine Bar Rules. The Board's information charges, and the Court hereby finds:
Because Ms. Anderson (f/k/a Grant) has not filed an answer or otherwise responded to the information, the Court takes the Board's allegations including those rule violations as being admitted by her.
Accordingly, it is hereby ORDERED that the Executive Clerk of the Maine Supreme Judicial Court enter the Defendant's default pursuant to M. R. Civ. P. 55(a). It is further ORDERED that Lenore Anderson (f/k/a Grant) be, and she hereby is disbarred from the practice of law in the State of Maine effective the date of this order. Lenore Anderson (f/k/a Grant) shall comply with the notification and reporting requirements of M. Bar R. 7.3(i) within 30 days of this date.
For the Court
Hon. Paul L. Rudman, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Leonard I. Sharon
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Docket No.: GCF 07-295
Issued by: Grievance Commission
Date: December 23, 2008
Respondent: Leonard I. Sharon, Esq.
Bar Number: 003291
Order: Reprimand
Disposition/Conduct: Standards of Care and Judgment; Responsibilities Regarding Non-Lawyer Assistants
Report of Findings Panel E of the Grievance Commission M. Bar R. 7.1(e)(2)M. Bar R. 7.1(e)(4)
On December 23, 2008, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7. 1 (e)(2)(E), concerning misconduct by the Respondent, Leonard I. Sharon, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 17, 2008.
At the hearing, Attorney Sharon was represented by James F. Martemucci, Esq. and the Board was represented by Bar Counsel, J. Scott Davis. The complainant, the Honorable Andrew Morton had been provided with a copy of this Report (in its proposal form) but was not present for the stipulated hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Leonard I. Sharon (Sharon) of Auburn, County of Androscoggin, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Sharon was admitted to the Maine bar in 1986 and he is a member in good standing.
On September 14, 2007, Justice Horton filed a complaint against Attorney Sharon. The complaint alleged that Sharon may have violated the Code of Professional Responsibility through his office's post-verdict, juror contact in an Androscoggin County Superior Court criminal matter. Earlier in the case, the Superior Court had issued specific orders which imposed detailed limitations on the use, retention and dissemination of confidential juror information. After the trial and in response to the law firm's inquiry, the Superior Court advised Sharon's office to file a request and affidavit in order to obtain access to juror names and contact information. According to the grievance complaint, neither the firm nor any of its agents submitted such a request.
By way of background, following the Superior Court trial, Sharon's jury consultant contacted at least two of the jurors involved in the murder case. The consultant informed the jurors that she had the trial Justice's permission to make such contact. By June 2007 a juror had alerted the Superior Court who subsequently complained to the Board of Overseers. Throughout these events, it appears that the consultant believed she had Sharon's authorization to undertake the post-trial communication with the jurors. This is apparent despite the Superior Court's previous direction to Sharon's office about the proper procedures required before such contact.
On September 17, 2007, the Superior Court issued an Order notifying the parties that the court was considering sua sponte, an initiation of contempt proceedings for sanctions against Attorney Sharon and or his jury consultant. As the court later noted, "Those matters center[ed] on two concerns: the unauthorized retention of juror names by or under the direction of [Attorney] Sharon, former defense counsel, and a misleading letter to jurors from the defendant's jury consultant working under the direction of former defense counsel." Ultimately, the Superior Court elected not to pursue a contempt proceeding. Instead, the court imposed a $2000 civil sanction against Sharon who, by then, had accepted responsibility for the actions outlined within the court's complaint. The resolution of that matter was memorialized in the Superior Court's January 18, 2008 Order.
On behalf of Attorney Sharon, Attorney James Martemucci submitted an initial response to the grievance complaint filed by the court. In that response, counsel provided background information about Sharon's representation of Mr. Roberts, the defendant in the murder case. Counsel also provided information related to Sharon's supervision of the juror consultant who initiated the post-trial juror contact. Within that response, Sharon denied any intent to violate the Superior Court's Orders.
Prior to the Board's filing of the Disciplinary Petition, Assistant Bar Counsel and counsel for Respondent agreed that Attorney Sharon engaged in misconduct, having violated specific portions of the Code of Professional Responsibility for which he should receive a reprimand.
In that regard, there clearly was a miscommunication between Sharon and his consultant concerning the Superior Court's requirements following the conclusion of the murder trial. At the least, the miscommunication resulted in Attorney Sharon's unintentional violation of the Bar Rules and the Superior Court's specific orders. Attorney Sharon has accepted responsibility for the apparent miscommunication and for his failure to ensure the consultant's compliance with the orders and the Bar Rules. To that end, Attorney Sharon acknowledges his specific violations of Maine Bar Rules 3.6(a) [Standards of Care and Judgment) and 3.13(c) [Responsibilities Regarding Non-lawyer Assistants]. As a result, Attorney Sharon also engaged in conduct prejudicial to the administration of justice. See M. Bar R. 3.2(1)(4).
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Sharon's above-outlined failures, at least one of the upset jurors expressed her/his concern to the trial justice that the Superior Court had freely disclosed that juror's confidential information, a fact which proved somewhat frightening to the juror.
The panel notes that Attorney Sharon has taken responsibility for his firm's actions and the distress it caused the jurors involved in the murder case. During this hearing, Attorney Sharon expressed his remorse for his unintentional violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Sharon agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Sharon's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a reprimand to Leonard I. Sharon Esq. which is now hereby issued pursuant to M. Bar R. 7. 1 (e)(3)(C), (4).
For the Parties
J. Scott Davis, Bar Counsel
James F. Martemucci, Esq.
For the Grievance Commission
Victoria Powers, Esq., Chair
John C. Hunt, Esq.
Joseph R. Reisert, Ph.D.
Board of Overseers of the Bar v. Gary Karpin
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Docket No.: BAR-05-05
Issued by: Single Justice
Date: October 23, 2007
Respondent: Gary Karpin
Bar Number: 003618
Order: Disbarment Reciprocal Discipline
Disposition/Conduct: Illegal Conduct
Order
On October 17, 2007 the Board of Overseers of the Bar petitioned this Court for an Order of Default in the reciprocal discipline matter filed by the Board in September 2005. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the Vermont Supreme Court's Order adopting the Vermont Professional Conduct Board's recommendation to disbar Mr. Karpin.
The Court notes that after several attempts by the Board, Mr. Karpin was finally served with a copy of the Board's pleadings and this Court's Order & Notice dated November 15, 2005. It appears from the return of service that Mr. Karpin was served through acceptance by his AZ counsel on or about July 17, 2007. Thereafter, Mr. Karpin had thirty days in which to notify this Court of any claim by him that identical discipline in Maine would be unwarranted. Attorney Karpin has defaulted by failing to file any response to this Court's order.
Upon consideration of the Board of Overseers of the Bar's Motion for Default and Petition for Reciprocal Discipline; and after providing Mr. Karpin an opportunity to be heard, it is hereby ORDERED as follows:
For the Court
Hon. Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Sean M. Farris, Esq.
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Docket No.: GCF #06-371; 07-066; 08-070
Issued by: Grievance Commission
Date: June 24, 2008
Respondent: Sean M. Farris, Esq.
Bar Number: 008168
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Conduct Unworthy of an Attorney
Report of Findings of Panel E of the Grievance Commission M. Bar R. 7.1(e)(2) M. Bar R. 7.1(e)(4)
On June 24, 2008, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7. 1(e)(2)E, concerning misconduct by the Respondent, Sean M. Farris, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseer's of the Bar (the Board) on October 26, 2007. Additionally, on March 25, 2008 the Board filed a second Disciplinary Petition which was stipulated to by the parties as it derived from a self-report through counsel for Attorney Farris. By agreement, the two Petitions were consolidated for this public disciplinary hearing before Panel E of the Commission. Prior to the disciplinary proceeding today, the parties submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration.
At the hearing, Attorney Russell Pierce substituted for Attorney Peter DeTroy, Esq. on behalf of his client, Sean Farris, Esq. The Board was represented by Assistant Bar Counsel, Aria eee. The complainants, David Clark and Rhonda Hamilton, were each provided with a copy of this Report (in its proposal form) but neither appeared for the hearing. Mr. Clark did file a response to the proposed Report and the same has been distributed to the parties.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Sean M. Farris (Farris) of Gardiner, County of Kennebec, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Farris was admitted to the Maine bar in 1995 and he is a member in good standing.
On November 1, 2006 David Clark filed a complaint against Attorney Farris. The complaint detailed the representation provided by Attorney Farris during a civil suit involving Clarks' family-owned real estate in Maine. In his filing, Mr. Clark alleged that Attorney Farris neglected the case, failed to adequately communicate and failed to notify Clark that in January 2005 the Kennebec County Superior Court dismissed the case.
Subsequently, in January 18, 2007 another client, Rhonda S. Hamilton also filed a complaint against Attorney Farris. Ms. Hamilton alleged that Farris accepted representation of her in an area of law in which he was not competent. Ms. Hamilton further alleged that Attorney Farris failed to communicate with her about the case and inadequately responded to her inquiries.
Initially and then through counsel, Attorney Farris responded to the complaints filed by Ms. Hamilton and Mr. Clark. The Board conducted investigations and afterward, separate Panels of the Grievance Commission preliminarily reviewed the matters. The Panels found probable cause for disciplinary action against Attorney Farris based upon the investigated allegations of misconduct. Therefore, pursuant to M. Bar R. 7. 1(d)(5) the Grievance Commission Panels directed Assistant Bar Counsel to prepare and present a formal disciplinary petition before a different Panel of the Grievance Commission.
After the filing of the Board's Disciplinary Petition, Attorney Farris engaged counsel who subsequently disclosed an additional incident of self-reported misconduct. Based upon that self-report, the Board opened a third complaint against Farris, sua sponte. That complaint became the subject of a stipulated Disciplinary Petition filed on March 25, 2008. The two Petitions were then consolidated for hearing before this Panel of the Grievance Commission.
Since that time, Attorney Farris has generally agreed that he engaged in misconduct, having violated specific portions of the Code of Professional Responsibility for which he should receive a Reprimand. To that end, Attorney Farris acknowledges that he failed to appropriately prosecute Mr. Clark's case, often struggling to meet deadlines and pre-trial obligations. He agrees that his delayed and/or inaccurate responses to Clark's requests for information left his client without sufficient information to discern the status of his legal matter. Attorney Farris also acknowledges his failure to adequately prepare for Ms. Hamilton's litigation and to regularly inform her of the status of that matter while he served as her attorney. Farris agrees that in his handling of both Mr. Clark's and Ms. Hamilton's civil cases, he violated Maine Bar Rule 3.6(a)(1)(3) (requiring a lawyer to keep the client informed and not neglect the client's legal matter.)
In the matter in which Attorney Farris self-reported, he acknowledges he failed to timely respond to court deadlines and adequately advise his client of developments. He agrees his failure to do so was a violation of M. Bar R. 3.6(a)(1)(3).
As a mitigating factor, Attorney Farris acknowledges that his stressful practice, file management deficiencies, and significant personal stressors negatively impacted these former clients. Without meaning to do so, Attorney Farris violated M. Bar R. 3.1(a) (conduct unworthy of an attorney).
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Farris' above-outlined misconduct, Mr. Clark's case was unknowingly dismissed with prejudice; Ms. Hamilton incurred additional costs and legal exposure within the course of her litigation; and in the self-report matter the case was also dismissed without a decision on the merits. Both Mr. Clark and Ms. Hamilton endured Attorney Farris' lack of response to their inquiries.
However, since that time, Attorney Farris has accepted responsibility for his lapses and has sought help with his personal stressors. At the hearing, he expressed his remorse to the complainants and his decision to voluntarily engage in mentoring with Kennebec County Attorney Michael J. Levey.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Farris agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Farris' waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of these cases is a public reprimand to Sean M. Farris, Esq. as provided by M. Bar R. 7. 1(e)(3)(C).
For the Parties
Russell B. Pierce, Esq.
Aria eee, Assistant Bar Counsel
For the Commission
John Hunt, Esq., Chair
Peter Fessenden, Esq.
Joseph Reisert, Ph.D
Board of Overseers of the Bar v. Brian E. Swales
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Docket No.: BAR-01-8
Issued by: Single Justice
Date: May 22, 2002
Respondent: Brian E. Swales
Bar Number: 000163
Order: Suspension
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Illegal Conduct; Conflict of Interest; Inadequate Preparation; Neglect
Order
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1) and (2). The Board filed an Information against the Respondent, Brian E. Swales, an attorney with an office in Houlton, alleging that Swales engaged in violations of M. Bar R. 2(c); 3.1(a); 3.2(f)(2), (3), (4); 3.4(b); 3.4(c); 3.4(d)(l); 3.6(a)(2), (3); 3.6(e)(2)(iv); 3.6(h)(1); 3.7(d); and 3.7(e)(1)(i). Bar Counsel J. Scott Davis represented the Board and Mr. Swales was represented by Stephen Y. Hodsdon, Esq. A hearing was held at which time the Court heard testimony from the complaining witnesses and Mr. Swales. In his pretrial memorandum, Mr. Swales admitted that he violated the Code of Professional Conduct in regard to his representation of Magnar Ramjor; that he was occasionally improperly uncommunicative with clients; and that he was too often tardy for court thereby admitting that he engaged in "conduct unworthy of an attorney" within the meaning of M. Bar R. 3.1(a). During the course of the hearing, the Court heard testimony from Suzanne Russell Lilley, an Assistant District Attorney, which testimony the Court found to be a credible description of numerous incidents of Mr. Swales' conduct in District Court. Mr. Swales admits he has been lax, negligent, and indicative of his failure to "focus attention on what he needed to focus upon." Mr. Swales further admitted that he allowed minors to consume alcohol in his home.
The Court finds that the evidence clearly supports Mr. Swales' violation of M. Bar R. 3.2(f)(2) by engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects; that he violated M. Bar R. 3.2(f)(4) by engaging in conduct that is prejudicial to the administration of justice; that he violated M. Bar R. 3.4(b) & (c) by representing parties with conflicts of interest; that he violated M. Bar R. 3.6(2) & (3) by handling legal matters without preparation adequate in the circumstances and by neglecting legal matters entrusted to him; and that he violated M. Bar R. 3.6(e)(2)(iv) by mishandling client funds.
By his admissions, Mr. Swales evidences that he now recognizes that his actions demonstrate numerous instances of unprofessional conduct. The Court has considered the purpose of this bar disciplinary proceeding in imposing a sanction in this case. Having found these violations of the Maine Bar Rules, and agreeing with the parties that they are serious, the Court must now consider an appropriate sanction. It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. In addition, in imposing discipline, the Court should not only examine the facts of the case at bar, but also the prior record and experience of the attorney involved. Taken individually, Mr. Swales? failings would warrant reprimands. The number and nature of the incidents of his unprofessional conduct demands a more serious sanction and conditions upon his continued practice as a lawyer.
Accordingly, the Court HEREBY ORDERS that Brian E. Swales be and hereby is suspended from the practice of law in Maine for a period of one (l) year commencing June 1, 2002, with that suspension itself being suspended for one year subject to the following terms and conditions:
It is further ORDERED that Mr. Swales reimburse the Board of Overseers of the Bar for its out-of-pocket expenses incurred for the prosecution of these proceedings to be paid within thirty (30) days of the date upon which Bar Counsel shall have notified Mr. Swales of the amount of those expenses.
For the Court:
Hon. Paul L. Rudman, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. William S. Wilson, Jr.
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Docket No.: BAR-03-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 15, 2004
Respondent: William S. Wilson Jr., Esq.
Bar Number: 001862
Order: Suspension
Disposition/Conduct: Neglect; Failure to Respond to Bar Counsel
Disciplinary Order
This matter came before the Court on September 15, 2004, pursuant to the Stipulated Waiver of Grievance Commission filed by the Board of Overseers of the Bar approved by the Court's Order of November 13,2003. Bar Counsel J. Scott Davis, Esq. represented the Board and Douglas B. Chapman, Esq. represented Defendant William S. Wilson, Jr., Esq. who was also present at that time. The following facts and resulting ethical violations were admitted by Mr. Wilson as follows:
Teresa Knight
In February 2001 Mr. Wilson represented Teresa Knight before the Workers' Compensation Board for serious injuries she had sustained while employed at Cappy's Chowder House in Camden. That employer's insurance company filed a Petition for Review resulting in a February 2001 hearing held before the Board. Mr. Wilson was negligent in his representation of Knight by failing to file medical evidence at the conclusion of that hearing despite repeated telephone calls from the Board to Mr. Wilson. Those medical records were in Mr. Wilson's possession and available to him to so file but he failed to do so for reasons which he now claims were related to substance abuse involving alcohol.
As a result of Mr. Wilson's negligence in the Knight matter, the Board issued an Order granting the Employers' Petition, whereupon Ms. Knight lost her workers' compensation benefits, including loss of income benefits.
In July 2001 Ms. Knight filed a legal malpractice action against Mr. Wilson for which Mr. Wilson defaulted by his failure to respond to the summons and complaint that had been served upon him.
On September 11, 2002, the Waldo County Superior Court (Atwood, J.) issued a default judgment against Mr. Wilson awarding Ms. Knight her lost workers' compensation benefits (including loss of income benefits) of $341,037.84 and lost medical benefits for medical expenses totaling $1,930,500.00, for a total judgment against Mr. Wilson of $2,271,537.84.
Mr. Wilson acknowledged in his response to Bar Counsel's inquiry in the Knight matter that he "missed a critical filing deadline in the matter involving Ms. Knight's claim for workers' compensation ... and caused Ms. Knight very significant loss and damage ...." Shortly before today's hearing, Mr. Wilson commenced settlement of Ms. Knight's default judgment against him. Mr. Wilson had no malpractice insurance coverage to address that judgment amount.
Norman Chevalier
In February 2002 Norman Chevalier retained Mr. Wilson for a fee of $1,500.00 to handle a number of legal matters relating to Mr. Chevalier's claimed allegations of wrongful employment termination and related difficulties with a local school department.
Mr. Wilson failed to move those matters forward and also ignored his client's many inquiries as to the status of his cases, including Mr. Chevalier's letter informing Mr. Wilson that he was quite displeased and would be notifying the Board of Overseers of the Bar if action was not taken. Despite that "warning," Mr. Wilson continued to ignore Mr. Chevalier resulting in his filing of both a complaint before the Grievance Commission and a petition before the Fee Arbitration Commission.
In early 2003, nearly a year after being retained by Mr. Chevalier, Mr. Wilson fully refunded that $1,500.00 fee to his client.
Mr. Wilson failed to ever submit any response to Bar Counsel concerning Mr. Chevalier's grievance complaint, and now admits he violated M. Bar R. 2(c) (failure to respond to Bar Counsel), 3.2(f)(1) and 3.6(a)(3) (neglect).
Summary Suspensions
Mr. Wilson was admitted to the Maine bar in 1979 and has no prior disciplinary or sanction record on file with the Board, but due to his failure to properly register or pay the required annual fee to the Board of Overseers of the Bar, effective November 8, 2002, he was summarily suspended from practice by the Board and has remained so suspended since that date. He also failed to meet his continuing legal education (CLE) requirements under M. Bar R. 12, which resulted in his being likewise summarily suspended for that failure, effective October 7, 2003. As a result of these failures by him and the resulting suspensions, Mr. Wilson has had no clients and has not practiced law since November 2002.
Disposition
Mr. Wilson's misconduct in these matters was serious, and proper protection of the public requires a significant disciplinary sanction, which will also allow and reinforce his current attempts—as he and his attorney each expressed to the Court—to appropriately address personal issues and deficiencies which played a major part in his ethical violations.
"The purpose of bar discipline is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." M. Bar R. 2(a). Mr. Wilson has admitted his misconduct and agreed that with assistance and counseling he is capable of changing his behavior and practice habits.
Therefore, upon consideration of all the facts and evidence and by stipulated agreement of the parties, the Court imposes the following sanction: Pursuant to M. Bar R. 7.2(b)(5) William S. Wilson, Jr. shall now receive a disciplinary suspension from the practice of law in the State of Maine for a period of two (2) years commencing this date, September 15, 2004, with all but the period from September 15, 2004, through January 1, 2005, of that disciplinary suspension itself being suspended, subject to the following conditions:
For the Court
Hon. Susan Calkins, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert H. Avaunt
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Docket No.: GCF 98-141
Issued by: Grievance Commission
Date: August 22, 2000
Respondent: Robert H. Avaunt, Esq.
Bar Number: 001436
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty and Deceit
Report of Proceedings, Findings, Conclusions and Disposition
Procedure
On June 21, 2000 and July 19, 2000, Panel D of the Grievance Commission conducted a public disciplinary hearing in this matter at the offices of the Board of Overseers of the Bar, Augusta, Maine. Oral argument was held by conference call on July 28, 2000. The panel was composed of Patricia M. Ender, Esq. of Augusta, chair; Theodore K. Hoch, Esq. of Bath; and F. Celeste Branham, of Lewiston. There were no objections to the composition of the panel. The Board was represented by assistant bar counsel, Geoffrey S. Welsh, Esq. The respondent appeared pro se.
Board Exhibits 1-42, 44-48, 59-63, and 65-79 were admitted. Respondent's Exhibits 1 and 6-15 were admitted. The following witnesses were duly sworn and testified before the panel: Mary B. Devine, Esq., Herbert C. Kontio, Lawrence J. Zuckerman, Esq., and respondent Robert H. Avaunt, Esq.
The amended petition alleges that Respondent violated the Maine Bar Rules 3.1(a), 3.2(f)(1), 3.2(f)(2), 3.2(f)(3), 3.2(f)(4), 3.6(e)(2)(iii), 3.6(e)(4)(iv), and 3.7(b). The Board alleges that Mr. Avaunt paid himself from accounts he managed as conservator/guardian of four veterans without performing work, that he wrongfully failed to disclose receipt of these funds to the firm for which he worked, Zuckerman, Avaunt & Devine, and that he wrongfully withheld fees from the firm. Mr. Avaunt filed an amended answer denying these allegations. No litigation, nor any proceeding before another tribunal, is currently pending regarding claims among Mr. Avaunt, Mr. Zuckerman and Ms. Devine.
Findings of Fact
The Respondent, Robert H. Avaunt, Esq., was at all relevant times an attorney admitted to the practice of law in the State of Maine.
Mr. Avaunt was a partner in the firm of Zuckerman & Avaunt, which was formed in 1978. In 1983, Ms. Devine joined the firm as an associate. Other attorneys joined the firm as associates. In due course, some associates, including Ms. Devine, became partners. In June 1994, one partner departed from the firm. In March, 1998, Mr. Avaunt resigned from the firm and became "of counsel? until May 11, 1998. Mr. Zuckerman and Ms. Devine continue to practice together, as Zuckerman & Devine.
At all times, Mr. Zuckerman was the managing partner of the firm, and had supervisory responsibility for the support staff. Mr. Zuckerman became personally involved with both the firm's bookkeeper and with Ms. Devine. In 1993, Mr. Zuckerman discovered that the bookkeeper had made unauthorized charges on the firm's credit card. He later determined that she had embezzled at least $56,722.53 between 1986 and 1993. Mr. Avaunt negotiated an agreement with the bookkeeper and her family for the return of the identified embezzled funds, minus $2722.53.
In 1990, 1992, and twice in 1995, Mr. Avaunt borrowed money from the firm, at interest. After the bookkeeper was dismissed in 1993, Mr. Avaunt unsuccessfully sought from Mr. Zuckerman the return of the interest he had paid during the period of embezzlement. In December 1996, after many years of significant financial difficulties, Mr. Avaunt filed for chapter 13 bankruptcy.
In March 1998, Mr. Avaunt resigned from the firm and became "of counsel" until May 11, 1998. Mr. Zuckerman, Mr. Avaunt, and Ms. Devine engaged in protracted negotiations for a withdrawal agreement. The parties continue to have disputed claims about what Mr. Avaunt is owed, or what he owes to the firm.
Mr. Avaunt's legal practice has included the representation of veterans. He has been appointed guardian, conservator, and personal representative of the estates of various veterans. As such, he has prepared legal papers to formalize his appointments, paid bills, made medical decisions, and conducted other business on behalf of his clients. In the course of such work, he has prepared regular and detailed accountings to the Veterans' Administration (VA) and to Maine probate courts. He anticipated close scrutiny of such accountings by the Veterans Administration, whose agents did indeed examine and occasionally question minor charges to the accounts. In all instances, any questions by the VA were promptly and simply resolved.
Beginning on November 24, 1994, and occasionally thereafter, Mr. Avaunt wrote checks to himself on the accounts of four veterans, Mr. Gregor, Mr. LaCasse, Mr. McCartney and Mr. Gildard, which checks he charged as guardianship and conservator fees on the accountings to the VA and probate courts, but which he did not disclose to the firm.
In the Gregor case, Mr. Avaunt paid himself guardianship/conservator fees of $737.50 on check #160 dated November 25, 1994, without disclosure to the firm. He disclosed to the firm similar fees of $537.50 on check # 174 dated March 6, 1995. On July 25, 1995, however, he again collected guardianship/conservator fees of $1000, on check # 194, which he failed to disclose to the firm.
Similarly, in the LaCasse case, Mr. Avaunt paid himself $625.00 on check # 141, dated November 25, 1994 for guardianship/conservator fees which he did not make known to the firm. He disclosed to the firm fees of $362.50 paid on check #146 dated February 25, 1995; failed to disclose fees of $187.06 paid on check # 164 dated January 6, 1996; disclosed fees of $800 paid two days later on January 8, 1996 on check # 165; and also disclosed fees of $100 paid on April 6, 1996 on check # 170 dated April 6, 1996.
In the McCartney matter, Mr. Avaunt paid himself guardianship/conservator fees of $625.00 on check # 381 dated November 25, 1994 which he failed to disclose to the firm. He further failed to disclose fees of $168 he paid himself on check # 387 dated March 6, 1995, and of $295.81 on check # 397 dated September 5, 1995.
In the Gildard case, Mr. Avaunt advised his firm of guardianship/conservator fees he paid himself on check # 121 for $62.50 dated January 18, 1996, on check # 127 for $50 dated February 12, 1996, and on check # 135 for $125 on March 16, 1996. On April 16, 1996 at Maine Tire, however, he negotiated check # 140 to himself for $100 for guardianship/conservator fees, which he did not disclose to the firm. He disclosed to the firm fees of $1215 on check # 170 dated November 14, 1996.
The six checks issued between November 24, 1994 and April 16, 1996 which Mr. Avaunt paid to himself for guardianship/conservator fees, but which he did not disclose to the firm before July 1998, total $3274.56.
After Mr. Avaunt gave notice of his resignation in March 1998, the firm began negotiating a withdrawal agreement. Through several drafts, Mr. Avaunt insisted on modifying a clause regarding earned fees, to the puzzlement of the remaining partners. In July 1998, Mr. Avaunt revealed to Mr. Zuckerman that his insistence was because he had not previously disclosed to the firm certain payments he had made to himself for guardianship/conservator fees. The particular files and checks involved were reviewed and compared to the fees listed on the VA and probate court accountings.
After consulting with counsel, Ms. Devine reported Mr. Avaunt's conduct to the Board, which conducted an investigation and held a case review before a panel of the grievance commission. That panel found probable cause to believe that misconduct subject to discipline under the bar rules had occurred, resulting in the public hearing before this panel.
Conclusions
I. Jurisdiction and Deferral
Respondent requests that the panel determine it lacks jurisdiction in this case, or, at least, that it defer its decision until after he, Mr. Zuckerman, and Ms. Devine have litigated their claims. The panel has jurisdiction over the matter pursuant to Maine Bar Rule 7(e).
The panel, at the outset of the hearing, asked if any litigation was pending in this matter. There being no pending case before another tribunal in this matter, Bar Regulation 12 does not apply and the panel cannot justifiably delay or defer a decision in this matter.
II. Regarding allegations of collecting unearned fees
Mr. Kontio, of the Veterans Administration, testified regarding the usual and customary standard of reasonableness for guardianship/conservator fees in Maine, for cases such as those handled herein by Mr. Avaunt. Mr. Avaunt's fees are within these standards. Mr. Avaunt testified that he reported all his fees in detail to the Veterans Administration and the probate courts. The Veterans Administration examined and approved the accountings, and, in some instances, forwarded them to the appropriate probate court. The Veterans Administration did not disapprove any fee which is the subject of this case. Therefore, the panel finds that the evidence does not support the Board's allegation that Mr. Avaunt did not earn the fees charged in these four cases.
III. Regarding allegations of dishonesty in dealing with the firm
The panel finds that Mr. Avaunt's failure to timely disclose to his firm the fees he paid himself on the four accounts, in six checks between November 24, 1994 and April 16, 1996, totaling $3274.56, violates Maine Bar Rule 3.1(a) regarding conduct unworthy of an attorney, and Maine Bar Rule 3.2(f)(3) regarding conduct involving dishonesty and deceit.
Despite the personal conduct at the firm in the years preceding and during the period Mr. Avaunt failed to disclose these fees to the firm, Mr. Avaunt's nondisclosure was not justified. Mr. Avaunt continues to rationalize his behavior based upon the misery he experienced in his work environment and the financial consequences to him of the bookkeeper's embezzlement, which he attributes in large part to Mr. Zuckerman's failure to supervise and confront a subordinate with whom he was conducting an affair. Yet Mr. Avaunt's own inconsistency in advising the firm of some fees on these accounts, but not others, shows that he was aware of his duty to disclose the fees to the firm and that he knowingly failed to do so. Mr. Avaunt practices a profession which encourages self-restraint, and eschews self-help remedies. His nondisclosure of the fees he collected violated these fundamental principles.
Although Mr. Avaunt retains the fees he initially failed to disclose from the firm, the current partners of the firm and Mr. Avaunt have unresolved financial claims among themselves. The panel also finds that, but for Mr. Avaunt's revelations to Mr. Zuckerman in July, 1998 that he had withheld the funds from the firm, his failure to disclose the fees would not have come to light. Mr. Avaunt's belated disclosure will facilitate more accurate resolution of the financial claims among him and the complainants.
Disposition
The respondent has no prior disciplinary record. Panel D determines that the appropriate disposition is that the respondent should be and hereby is reprimanded for failing to make timely disclosure to the firm of his receipt of six checks for guardianship/conservator fees between November 1994 and April 1996. The remaining allegations are dismissed.
For the Grievance Commission
Patricia M. Ender, Esq., Chair
Theodore K. Hoch, Esq.
F. Celeste Branham
Board of Overseers of the Bar v. James L. Audiffred
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Docket No.: GCF 05-286
Issued by: Grievance Commission
Date: September 1, 2006
Respondent: James L. Audiffred, Esq.
Bar Number: 002382
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice
Report of Findings of Panel D of the Grievance Commission
On August 28, 2006, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, James L. Audiffred, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on April 26, 2006, alleging misconduct in violation of M. Bar R. 3.1(a), 3.2(f)(2), 3.2(f)(4), 3.6(a), and 3.7(a).
At the hearing, Assistant Bar Counsel Aria eee represented the Board, and the Respondent was represented by James M. Bowie, Esq.1 The Board's exhibits marked Board Exh. 1 through Board Exh. 9, the Respondent's exhibits marked Resp. Exh. 11 through Resp. Exh. 13, and a transcript marked as Joint Exh. 1, were all admitted without objection. The Panel heard testimony from the following witnesses:
James L. Audiffred, Esq.
Herschel M. Lerman, Esq.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
Findings
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules. At all times relevant hereto, Respondent was representing Sterling Sawmill, LLC, in a collection matter against Kevin Bedard and Raymond Bedard, individually and doing business as Bedard Roofing and Construction. Respondent obtained an order permitting the attachment of the defendants' property. Becoming frustrated with defendants' concealment and movement of the property subject to attachment, Respondent engaged in a series of communications with the York County Sheriff's Department in which Respondent spoke in an overbearing and abusive manner, one of those communications being a message left on Capt. Lehan's home answering machine. (Joint Exh. 1.)
On Friday, September 20, 2002, Capt. Lehan located a construction trailer clearly marked "Bedard Roofing and Construction" and attempted to execute the attachment on it. The defendants produced a registration purporting to show that the trailer was actually owned by Raymond Bedard's son, Coco Bedard, who was not a named defendant.2 Capt. Lehan contacted Respondent to inform him that he would not be able to attach the trailer. Respondent then came to the site where the trailer was located. He used grossly abusive language against Capt. Lehan, who thereupon advised him to leave.3
After Respondent got into his car, Raymond Bedard approached the car window and interacted with Respondent in some manner, following which a physical scuffle ensued outside the car. The two were separated by Raymond Bedard's sons, and Respondent then departed the scene.
Conclusions and Sanction
The Panel concludes that Respondent conducted himself in a manner unworthy of an attorney in this matter. "Attorney behavior, particularly in the context of representation of a client, must be worthy of our profession .... 'Any verbal abuse of an adversary is unworthy of an attorney regardless of the circumstances. ' " Board of Overseers v. Neal L. Weinstein, GCF 03-252 (July 30, 2004) (quoting Board of Overseers v. Richard B. Slosberg, BAR 92-13, 93-3, and 95-9 (Mar. 21, 1996). " 'The zeal employed by an attorney in guarding the interests of his clients must always be tempered so as not to inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities.' " Id (quoting Office of Disciplinary Counsel v. Jackson, 84 Ohio St. 3d 386,387-388,704 N.E.2d 246 (1999). In the Weinstein matter, Panel E of the Grievance Commission concluded that the respondent's verbal abuse and physical confrontation was "conduct prejudicial to the administration of justice, a dramatic failure to exercise reasonable care and skill, and a grievous shortage of 'lawyer's best judgment' in the performance of professional services," and appeared to be "action on behalf of the client which the lawyer knows, or should know, would merely serve to harass or maliciously injure another.? Id.
In this case, the testimony was inconclusive as to who was more at fault in the physical altercation, although Respondent admitted that in hindsight, he should not have come to the scene at all. It was undisputed, however, that Respondent did come to the scene and was verbally abusive not only to the defendants, but also to the deputy sheriff. Of great concern to the Panel was Respondent's testimony that in doing so, he was not out of control in any way. The Panel therefore concludes that in Respondent's view, verbal abuse of others, including a law enforcement officer in the performance of his duties, is an ordinary and accepted course of conduct. The Panel finds this behavior to be inconsistent with the office of an attorney. Under the circumstances at Issue in this matter, Respondent's behavior was, at minimum, conduct prejudicial to the administration of justice in violation of M. Bar. R. 3.2(f)(4).
Respondent testified that in his view, the definition of "conduct unworthy of an attorney" is limited to actions specifically proscribed by the Attorney's Oath, 4 M.R.S.A. ? 806. The Panel finds Respondent's view of the scope of sanctionable misconduct to be unduly constrained. The Maine Bar Rules specifically state that they are "intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to, their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of the State," M. Bar R. 2(a), and that "the prohibition of certain misconduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned." M. Bar R. 3.1(a). Accordingly, the Panel concludes that Respondent has engaged in misconduct subject to sanction under the Maine Bar Rules. Respondent violated a duty owed to the legal system, to the profession, to the courts and other agencies of the State, and to the public.
While the injury caused by Respondent's misconduct was minimal, the Panel is unable to conclude that there is little likelihood of repetition by the Respondent. To the contrary, while the likelihood of another similar physical altercation may be remote, the evidence before the Panel demonstrated, at minimum, a pattern on the part of Respondent of verbal abuse and harassment of Capt. Lehan. Respondent's behavior appeared to be intentional and knowing. With regard to aggravating and mitigating factors, Respondent denied any anger management problem, and testified that he was in complete control of himself in using abusive language to others; the sole mitigating factor presented by Respondent was the pressure exerted by his client to achieve a favorable result in the collection matter, a factor that the Panel concludes is foreseeable in similar matters and could be expected to lead to a repetition of similar behavior.
In light of the foregoing findings and conclusions, the Panel concludes that the appropriate disposition is a public reprimand to Respondent, and he hereby is so reprimanded.
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
David Nyberg, Ph.D.
David S. Abramson, Esq.
Footnotes
1The Panel denied a request by Richard B. Slosberg, the initial complainant in this matter, to participate as a party.
2Confusingly, Raymond Bedard is nicknamed "Coco," whereas Coco is apparently his son's given name.
3Although Respondent denied using the specific obscenities and other epithets attributed to him by Capt. Lehan, the Panel found Capt. Leahan's account credible. However, the Panel notes that even the abusive language toward Capt. Lehan that was actually admitted to by Respondent would support the Panel's disposition of this matter.
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: BAR 99-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: April 19, 2001
Respondent: Thomas M. Mangan
Bar Number: 001743
Order: Motion for Relief from Judgment
Disposition/Conduct:
Order on Motion for Relief from Judgment
Thomas Mangan has filed a Motion for Relief from Judgment seeking to have the judgment of disbarment entered on March 10, 2000, set aside, pursuant to M.R. Civ. P. 60(b). For the reasons set out below, that motion must be denied.
1. Motion to Recuse the Law Court
Preliminarily, because there has been some confusion regarding the procedural posture of this matter, clarification is necessary. The original judgment was entered on March 10, 2000. On January 16, 2001, that judgment was affirmed by the Law Court. On February 27, 2001, an Order of Contempt was entered requiring Mr. Mangan to comply with certain responsibilities set forth in the Code of Professional Responsibility.
After the affirmance of the judgment by the Law Court, Mr. Mangan filed the now pending Motion for Relief from Judgment on February 7, 2001. The Board responded to the motion on February 28, 2001. Shortly thereafter, Mr. Mangan filed a Motion to Recuse the Law Court from hearing the pending matter. The Board responded briefly on March 9, 2001. On March 20, this Court received Mr. Mangan's bound version of his Motion for Relief from Judgment with attachments and appendices. The confusion regarding Mr. Mangan's Motion to Recuse the Law Court has now been cleared up. The parties understand that the Motion for Relief from Judgment was presented to this judge as the trial court in the matter, and that the Law Court does not have jurisdiction to entertain a motion for relief from this Court's judgment pursuant to Rule 60(b). Therefore, it is ORDERED that the Motion to Recuse the Law Court is dismissed.
2. Motion for Relief from Judgment
Mr. Mangan has sought relief from judgment based on claims of fraud, newly discovered evidence, mistake, and excusable neglect. As the party seeking relief from judgment, Mr. Mangan "bears the 'burden of proving that the judgment should be set aside.'" Keybank Nat'l Assoc. v. Sargent, 2000 ME 153, ? 13, 758 A.2d 528, 533 (Citation omitted).
Mr. Mangan has presented multiple theories upon which he argues that the judgment should be set aside. I have not endeavored to address every argument, and in several instances I have summarized or paraphrased his arguments.
a. Newly Discovered Evidence
I address the matter of newly discovered evidence first. Mr. Mangan asserts that, if he were given the opportunity for the presentation of testimony, he would present witnesses who would testify, among other things, that Ms. R. was having affairs with other men at the time of his relationship with her. He would also present testimony regarding her credit worthiness following his services to her in paying the medical bills. Mr. Mangan?s request for a hearing on those matters was deferred pending the parties' argument on each of the issues.Having now heard Mr. Mangan's offer of proof on the issues of newly discovered evidence, I conclude that presentation of the facts offered would have no effect on the conclusions drawn in the original judgment. Whether Ms. R. was having relationships with men other than Mr. Mangan is not relevant to his own breach of his responsibilities as an attorney. Similarly, the findings regarding his work for her in paying medical bills would not be changed upon a presentation of evidence that she was credit worthy and sought or obtained other loans following his work. In the original judgment I concluded that Mr. Mangan in fact paid each of the bills and may have paid more to her medical services providers than she gave to him for distribution. Nonetheless, he failed to provide her with a final and complete accounting. The fact that she was able to obtain credit and therefore should have understood that he had completed his work for her does not substitute for his own responsibility to account for the funds she gave him. 1
b. Fraud
Mr. Mangan alleges several areas of fraud upon which he bases his argument that the judgment should be set aside. I have not herein attempted to repeat all such allegations. I address them generally in groups.
Inherent in all of Mr. Mangan's claims of fraud is his insistence that Ms. R. lied during the trial of this matter and lied in many other contexts outside of the trial. In essence, Mr. Mangan alleges that the Board committed a fraud upon the Court when it (1) presented the rape allegations notwithstanding inconsistencies in Ms. R.'s statements regarding those allegations, and (2) attempted to obtain an advantage in the litigation by including the egregious rape claims, thereby attempting to taint the proceedings and sway the Court. Mr. Mangan also alleges that Ms. R. committed a fraud upon the court because her testimony was so incredible.
It should be noted that with regard to the rape allegations, I found that the Board did not prove the claims. Any belief on Mr. Mangan's part that the mere existence of the allegations by the Board somehow tainted the proceedings or pressured me into finding for the Board on other matters is simply wrong.
Ms. R.'s credibility was an issue throughout the trial. The Board itself pointed out to the court inconsistencies in some of her prior statements. Mr. Mangan, through very competent counsel, had an opportunity to challenge all of her testimony, and did so effectively in many instances. Ultimately, I found her testimony not to be credible on a number of points. I conclude that Bar Counsel's decision to present Ms. R. as a witness did not constitute a fraud on the court. I further conclude that Ms. R.'s inaccurate or inconsistent testimony, whether intentional or unintentional, did not deprive Mr. Mangan of a fair trial given his opportunity to challenge her testimony at trial and my conclusion that Ms. R. was not a fully credible witness. I further reject Mr. Mangan's argument that Ms. R.'s lack of credibility in some areas required me to reject her testimony in its entirety.
c. Excusable Neglect
Mr. Mangan next argues that the failure on the part of Attorneys Davis and Sharon to object to Ms. R.'s inaccurate or inconsistent testimony was "excusable neglect." This is just another method of arguing that Ms. R. lied at trial and that her lies prejudiced Mr. Mangan. Once again, I reject that argument as a basis for setting aside the judgment. Moreover, Attorney Davis, as noted above, took pains to point out to the Court one particular area of inconsistency in her testimony, and Attorney Sharon representing Mr. Mangan, cross-examined Ms. R. extensively on issues related to credibility.
d. Mistake, Errors in Factual Determination
In this argument, Mr. Mangan primarily asserts that the judgment contained errors in its factual findings regarding Ms. R.'s psychological condition. These matters were cognizable on direct appeal and have been resolved by affirmance in that appeal. Moreover, Mr. Mangan's disagreements with the factual findings do not justify setting aside the original judgment.
e. Summary of Argument
Mr. Mangan continues to search for reasons why he should not have been sanctioned for his relationship with Ms. R. and his violations of the Code in related matters.2 Mr. Mangan himself admits to having had a sexual relationship with Ms. R. over a period of years. Although he continues to disagree with the legal conclusion, he did so at a time when he was acting as her attorney. He took advantage of information learned in the course of his representation of her in initiating the relationship, and when that relationship went sour, he destroyed any of the work that he had completed regarding the search for her children's fathers.
Mr. Mangan does not dispute the fact of the relationship, the inappropriate use of his client account related to Ms. R., or the ultimate destruction of the materials related to the search. New or more compelling evidence that Ms. R. lied about a number of aspects of their personal relationship, or that she was the "scorned woman" who used the Code of Professional Responsibility to attempt to manipulate Mr. Mangan, or to punish him, cannot change these facts.3 Nor does Mr. Mangan's challenge to Ms. R.'s character alter my conclusion that he violated the Code of Professional Responsibility and refused to accept responsibility for his own conduct.4
Conclusion
Having considered all of the arguments presented in Mr. Mangan's Motion for Relief from Judgment, including his offers of proof regarding newly discovered evidence, I conclude that Mr. Mangan has not presented a basis to set aside the original judgment and that no evidentiary hearing is necessary.
Wherefore, the entry will be:
Motion for Relief from Judgment DENIED.
For the Court
Hon. Leigh Saufley, Associate Justice - Maine Supreme Judicial Court
Footnotes
1. Mr. Mangan's violation of the bar rule regarding an accounting as to the medical bills did not play a significant part in the sanction ultimately imposed in this case.
2. In support of his argument that he should not have been sanctioned, Mr. Mangan refers to Ms. R as the "Base Hooker"; he has offered evidence that she has been charged but not convicted of shoplifting; he suggests that her daughters are not employed in the professions she testified to but are engaged as strippers or prostitutes; and he finally asks "Doesn't anyone see through this woman?" None of these allegations, if true, would excuse his serious errors in professional judgment.
3. The original judgment contained findings that she threatened him and that she attempted to obtain a financial advantage when she understood that he would be in trouble with his professional oversight Board because of his relationship with her.
4. Before the imposition of sanctions, Mr. Mangan was given the opportunity to present options short of disbarment that would assure protection of the public while allowing him to work toward regaining a professional standing. No such presentation was made at the hearing on sanctions.
Board of Overseers of the Bar v. Peter K. Mason, Esq.
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Docket No.: GCF 08-017 and GCF 08-197
Issued by: Grievance Commission
Date: April 16, 2009
Respondent: Peter K. Mason, Esq.
Bar Number: 000433
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Illegal Conduct
Stipulated Report of Findings and Order of Panel B of the Grievance Commission M. Bar R. 7.1(e)(2) and M. Bar R. 7.1(e)(4)
On April 16, 2009 after due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(c)(2)(E) concerning misconduct by the Respondent, Peter K. Mason, Esq. in the above two docketed grievance complaints. The disciplinary proceeding was commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on February 19, 2009.
Prior to the disciplinary' hearing, the parties submitted a Stipulated Report of Findings and Order for the Grievance Commission Panel's review and consideration. Present at the hearing were Attorney Mason, his counsel, Karen G. Kingsley, Esq. and Bar Counsel J. Scott Davis for the Board. The complainants, Keirsten Wyman and Tammy Tracey, were provided with a draft copy of the Report by the Board, attended the hearing and were provided the opportunity to address the Panel.
Having reviewed the Stipulated Disciplinary Petition and heard comments of counsel, the Panel makes the following disposition:
Findings
Respondent Peter K. Mason, of Searsport, County of Waldo, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Mason was admitted to the Maine bar in 1972 and is currently registered with the Board of Overseers of the Bar as an attorney engaged in the active practice of law.
On or about January 12, 2008 Keirsten Wyman filed a grievance complaint against Attorney Mason. Ms. Wyman's complaint alleged that on October 17, 2007, Attorney Mason had exposed his genitals to her as they each were at the gas pumps and parking area of the On the Run Gasoline Station and Convenience Store in Winterport, Maine.
Attorney Mason was prosecuted and convicted after a jury-waived trial for the crime of Indecent Conduct concerning that incident involving Ms. Wyman.
By her complaint letter dated May 25, 2008, Tammy Tracey filed a similar grievance complaint against Attorney Mason. Her complaint likewise alleged that Attorney Mason had exposed himself on more than one occasion from 2004-2007 in public locations, including at both the parking lot of and inside her place of employment, a convenience store in Stockton Springs. Ms. Tracey was a former client of Attorney Mason.
Attorney Mason was charged by a second criminal complaint with engaging in Indecent Conduct concerning Ms. Tracey's allegations. That second complaint has been filed with prosecution deferred by the prosecutor responsible for handling it.
In his initial written response letter to each grievance complaint, Attorney Mason disputed the charges. Attorney Mason now agrees, however, and the Panel so finds that his conduct referenced in each of these two complaint matters violated Maine Bar Rules 3.1(a)(conduct unworthy of an attorney) and 3.2(f)(2)(illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness in other respects). Attorney Mason has entered into a contract dated February 5, 2009 with the Maine Assistance Program for Lawyers and Judges (MAP) and has commenced an assessment, evaluation and treatment program as recommended by his clinical psychologist.
Conclusion and Sanction
The Maine Bar Rule 2(a) specifically requires attorneys to comply with the Code of Professional Responsibility at all times, notwithstanding the fact there may be no specific current attorney/client relationship or pending court matter at issue. The Rule further provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties.
The Panel notes that Attorney Mason has taken responsibility for his misconduct in each instance and has commenced a treatment program. During this hearing, Attorney Mason expressed his remorse for his violations of the Code of Professional Responsibility and the discomfort and upset his actions obviously caused to both Ms. Wyman and Ms. Tracey. Attorney Mason further agrees, as a condition of Panel approval of this Stipulated Report and Order, to comply with the terms of his three (3) year contract with MAP. Bar Counsel has confirmed that Attorney Mason has no prior public professional sanction record on file with the Board.
The Panel accepts the proposed disposition and the waiver by Attorney Mason of his right to file a Petition for Review as evidenced by his signature below.
Panel B hereby issues a Public Reprimand to Attorney Peter K. Mason pursuant to M. Bar R. 7.1(e)(3)(C)(4).
For the Grievance Commission
John R. Bass II, Esq. Chair
Maurice A. Libner, Esq.
Susannah White
Board of Overseers of the Bar v. Daniel L. Lacasse, Esq.
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Docket No.: GCF 08-085
Issued by: Grievance Commission
Date: April 30, 2009
Respondent: Daniel L. Lacasse, Esq.
Bar Number: 002433
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct that is Prejudicial to the Administration of Justice
Stipulated Report of Findings and Order of Panel D of the Grievance Commission M. Bar R. 7.1(e)(4) M. Bar R. 7.1(e)(2)
On April 7 2009 with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E) concerning misconduct by the Respondent Daniel L. Lacasse, Esq. The disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 25, 2009.
At the hearing Attorney Lacasse was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Although the complainant, Philip Hunt, Esq. did not attend, his client, Ann Dyer, was present and she participated in the disciplinary hearing. Prior to the hearing, the parties had submitted a proposed, stipulated Report of Findings and Order for this Grievance Commission Panel?s review and consideration.
Having reviewed the proposed Report as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Daniel L. Lacasse of Calais, Maine ("Attorney Lacasse") has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Lacasse was admitted to the Maine bar in 1981 and he is a currently registered with the Board of Overseers of the Bar as an active Maine Attorney.
On March 12, 2008, Attorney Hunt, on behalf of Ms. Dyer, filed a grievance complaint against Attorney Lacasse. The complaint alleged violations of the Code of Professional Responsibility by Attorney Lacasse during his representation of the Personal Representatives in a Washington County Probate Court action.
On or about April 28, 2008 Attorney Lacasse filed a response with the Board, providing background information regarding his involvement in the Beckett estate matter. Of note, the former Personal Representatives are now deceased and Attorney Lacasse appeared to have adopted a "hands off? approach during his representation of them.
Ms. Dyer is the granddaughter of Clarence B. Beckett. Mr. Beckett died in 2001 and his sizeable estate was informally administered in the Washington County Probate Court. Prior to her service as successor Personal Representative, Ms. Dyer occasionally checked on the estate's administration through the original Personal Representatives, her cousin and Attorney Lacasse's then secretary. Regrettably, Attorney Lacasse delegated most, if not all, of his responsibilities related to the estate to his secretary. According to Attorney Lacasse, once his secretary became ill, she performed much of her duties as Co-Personal Representative from her home. The firm's file on the Beckett estate was also maintained at her home. Attorney Lacasse acknowledges that due to his secretary's involvement, he failed to remain informed and properly monitor the administration of the Beckett estate, despite his obligation to do so. Likewise, Attorney Lacasse delayed the preparation of the estate accounting. In that regard, due to his eventual inability to locate the estate files, Attorney Lacasse ultimately failed to prepare such an accounting or to finalize the closing of the estate.
Moreover, according to the Beckett Will, Mr. Beckett intended that the estate would create a Trust designed to benefit the Calais school system. During the early estate administration, Attorney Lacasse petitioned the Court which subsequently appointed Trustees for that purpose. However, the evidence confirms and Attorney Lacasse agrees that he never concluded the necessary work to establish the Trust. From the parties' submissions it appears as though much of the estate administration was completed in 2003. Nonetheless, by summer 2007 the estate remained open and there was no concentrated effort to finalize the work and close the estate. The same was true for the funds designed to benefit the Calais school system as those funds remained in savings accounts with three (3) local banks. Finally, Attorney Lacasse failed to file the estate's income tax returns, which has caused additional work and expense to the estate.
As a consequence, Ms. Dyer repeatedly contacted Attorney Lacasse to urge him to wind down and close the estate. Perhaps unrealistically, Attorney Lacasse anticipated that he could finalize the closure and on August 27, 2007 he filed a signed, sworn statement by the surviving Personal Representative, Mr. Haley. Attorney Lacasse has stated that he witnessed Mr. Haley's signature on the document. However, Attorney Lacasse has stated that Mr. Haley's sworn statement was lost sometime after he signed it, and that it was Attorney Lacasse who actually signed the statement that was ultimately filed with the Court, not Mr. Haley who was by then deceased. That statement was filed by Attorney Lacasse with the Probate Court. Attorney Lacasse has acknowledged the gravity of such a dishonest action. He agrees that having done so demonstrates a severe lapse in judgment which reflects poorly on the profession. Attorney Lacasse has assured this Panel of the Grievance Commission that he will never repeat such a serious transgression. His actions in total constitute violations of M. Bar R. 3.1(a) and 3.2(f)(3), (4).
As noted above, Ms. Dyer attended the disciplinary hearing. She explained to this Panel her distress about the impact Attorney Lacasse's actions have had upon the family and the Beckett estate as a whole. Ms. Dyer ultimately sought the appointment as successor Trustee based upon her concerns regarding Attorney Lacasse's failure to properly discharge his professional duties. It is clear that Mr. Beckett's family relied on Attorney Lacasse and because of the above-mentioned lapses, have endured unnecessary delays and expenses to wind down the estate.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Lacasse's above-outlined failures, his client's estate was not timely administered, the family and charitable beneficiaries endured losses and the process has proved exceedingly frustrating.
The Panel notes that Attorney Lacasse has taken responsibility for his failures in representing the interests of the Beckett estate. During this hearing, Attorney Lacasse expressed remorse for his serious violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Attorney Lacasse has no history of prior discipline although the Panel notes that in 1999 and 2001, Lacasse was informally sanctioned for similar lapses. Attorney Lacasse has agreed to submit for Bar Counsel's approval a suitable plan to improve his office management practices.
Since the evidence supports a finding and Attorney Lacasse agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves the purpose of protection of the public. Therefore, the Panel accepts the agreement of the parties, including Attorney Lacasse?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Daniel L. Lacasse Esq. which is now hereby issued and imposed pursuant to M. Bar R.7.1(e)(3)(C) (4).
For the Parties
Aria Eee, Assistant Bar Counsel
Daniel L. Lacasse, Esq., Respondent
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
James McKenna, Esq.
David Nyberg, Ph.D.
Board of Overseers of the Bar v. John M. Whalen
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Docket No.: GCF 98-109
Issued by: Grievance Commission
Date: October 3, 3001
Respondent: John M. Whalen, Esq.
Bar Number: 000827
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conflict of Interest; Confidentiality; Standards of Care and Judgment
Report of Findings
This matter was before Panel E of the Grievance Commission on the petition of Bar Counsel alleging numerous violations of the Maine Bar Rules against the Respondent, John M. Whalen, in connection with his representation of the Maine Rural Workers? Coalition (MRWC). On May 1, 2001, a public hearing was conducted to determine whether a bar rule violation had occurred and whether probable cause exists for the filing of an information pursuant to Maine Bar Rule 7.2(b).
At the hearing, the Board of Overseers was represented by Geoffrey Welch, Esq. Respondent was represented by Jennifer Ferguson, Attorney at Law.
The Board examined and Ms. Ferguson cross-examined the complainant, Jose Soto; Rebecca Webber; Audrey Morra; Paul Christian; John Whalen, Esq. Andrea Rodriguez and Mary Henderson. Mr. Whalen called and the Board cross-examined Andrea Rodriguez.
The Board offered into evidence Board Exhibits 1 through 47, which were admitted without objection with the exception of Board Exhibits 3, 4, 5, 8 and 31. Respondent?s Exhibits 13, 14 and 15 were substituted for the Board Exhibits 3, 4 and 8. Respondent?s Exhibits 1 through 15 were all admitted without objection.
Based upon the evidence, the Panel finds the Mr. Whalen has violated the Maine Bar Rules. For the reasons stated herein, it issues this public reprimand of Mr. Whalen.
Summary of Facts
In the fall of 1997, John M. Whalen, Esq. served as chair of the Social Justice and Peace Commission of St. Phillips Parish in Auburn, Maine. Mr. Whalen serves his parish and it?s Social Justice and Peace Commission as a volunteer. As such, Mr. Whalen learned of the efforts of Hispanic migrant workers employed by the Decoster Egg Farm to organize. That organization took the form of The Maine Rural Workers? Coalition (MRWC). MRWC is lead by its director, Jose Soto. It is one of the few advocacy groups in Maine for Hispanic laborers. Its activity focuses upon fair employment practices, health insurance coverage and immigration issues. With Mr. Whalen?s assistance, MRWC aligned itself with St. Phillips. The church provided space to MRWC and served as a vehicle for MRWC to access grants available through various Catholic charities. One of several initiatives conceived for MRWC was a child care facility for the children of its members/constituents. Mr. Whalen volunteered to provide legal advice to MRWC with respect to the formation of that day care facility, including the establishment of a tax exempt organization. Mr. Whalen worked hard and with a generous heart.
However, his conduct in the face of conflict between MRWC and St. Phillips ? on the one hand, and between MRWC and its source of funding on the other, ran counter to the best interests of his client, MRWC and, thus, the bar rules.
At the outset, Mr. Whalen assembled a grant application to establish a day care center. Though MRWC was active in the organization of migrant workers, it had not developed procedures for handling the proceeds of grants. As a result, representatives of the Department of Human Services and of the charitable arm of the Catholic Diocese of Maine sought to assure themselves that money granted to MRWC was administered consistent with DHS regulations and in accordance with diocesan criteria. Mr. Whalen took exception to the procedures followed by Catholic Charities Human Development (CCHD) in applying its criteria and let his disdain for those procedures be known in a strongly worded statement to CCHD.
Ultimately, MRWC voted to abandon the child care grant application after it learned that the diocese had actually sponsored a competing application for the same DHS grant.
Mr. Whalen became frustrated by MRWC?s failure to satisfy CCHD criteria, as well as the perceived competition from Catholic Charities. These developments caused Mr. Whalen to resign both as counsel to MRWC and as Chair of the Social Justice and Peace Commission on April 15, 1998.1
Following his purported withdrawal, Mr. Whalen e-mailed CCHD representatives on April 28, 1998 and stated, among other things, that:
The record reveals no authorization for a communication of this sort. Mr. Whalen characterized the e-mail as intemperate. It is more than intemperate. It is harmful to the reputation of MRWC and the relationships among MRWC, CCHD and St. Phillips. It is not clear whose interests Mr. Whalen intended to advance in his message. He clearly acted contrary to the best interests of MRWC.
Thereafter, MRWC obtained substitute counsel, Rebecca Webber. On or about May 27, 1998, Attorney Webber wrote Mr. Whalen informing him that MRWC decided to appoint one person through whom all communications must run. This letter directed Mr. Whalen to run all o f his communications by and through Mr. Soto until MRWC named another contact person.
In Mr. Whalen?s reply e-mail to Ms. Webber, he informed her that he would not agree to the restrictions placed on his speaking out concerning the MRWC.
In Ms. Webber?s follow up e-mail to Mr. Whalen of May 28, 1998, she repeated MRWC?s instructions to him that he not speak on its behalf without first going through MRWC?s contact person.
In Mr. Whalen?s second e-mail to Ms. Webber of May 28, 1998, Mr. Whalen stated the he ?stood by? his last correspondence to her and warned that ?with my work for the church I am in frequent contact with the others. To date, my contact has allowed the space to stay available. I seriously feel if I indicate a reluctance to talk to them they will back away from supporting this project.? Mr. Whalen, thus, put himself squarely in the middle of a potential conflict between MRWC, as tenant, and St. Phillips, as landlord, - a conflict over which Mr. Whalen suggested he was in a position to exercise significant influence.
On or about May 29, 1998, Mr. Whalen, again, e-mailed Ms. Webber stating that:
On or about June 8, 1998, Mr. Whalen e-mailed Ms. Webber alleging that:
Bar Rule Violations
Mr. Whalen?s manifest hostility towards MRWC, particularly his threats of eviction and his allusions to conversations with third persons on the subject of MRWC activity amounts to a fundamental breach of duty. As noted recently by the Maine Supreme Judicial Court, the primary duty of an attorney to his client is to conduct himself in a manner that is not ?adverse? to his client. In re: Mangan, Supreme Judicial Court Docket No. Bar 99-5 (4/13/1080) citing Maine Bar Rule 3.4(b)(1).
Bar Counsels cites Bar Rule 3.1 and urges this Panel to conclude that Mr. Whalen?s conduct is ?unworthy of an attorney.? The Panel agrees, mindful of the qualification in Rule 3.1 that nothing in the Code of Professional Responsibility is ?intended to limit or supercede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation.?
As for specific rule violations, Bar Rule 3.4(b) contains the general admonition against conflicts of interest.
3.4(b) Conflict of Interest: General Provisions.
Mr. Whalen?s representation of MRWC was materially and adversely affected by what Mr. Whalen regarded as his duties to St. Phillip?s Church.
Maine Bar Rule 3.6(a) governs conduct during representation and requires that a lawyer ?employ reasonable care and skill and apply the lawyer?s best judgment in the performance of professional services.? Mr. Whalen?s communications lacked judgment. They were polarizing, gratuitous and fulfilled no discernable purpose other than to embarrass MRWC.
Finally, Maine Bar Rule 3.6(h) prohibits a lawyer ?without the informed written consent of the client? from revealing ?a confidence or secret of the client to the disadvantage of the client.? Mr. Whalen?s e-mail correspondence is tantamount to an admission that he shared sensitive information pertaining to MRWC with third parties. He shared with representatives of CCHD, on April 28, 1998 scandalous allegations with respect to MRWC. On May 29, 1998, Mr. Whalen advised Ms. Webber that he had discussed matters pertaining to MRWC with members of St. Phillip?s Parish. The potential disadvantage to MRWC is clear from Mr. Whalen?s June 8, 1998 allusion to a course of action which would have removed MRWC from St. Phillip?s facilities and terminate the relationship.
Determination
Maine Bar Rule 7.1 provides that if the Panel finds that misconduct subject to sanction under these rules has occurred, the Panel may either dismiss the petition with a warning, issue a public reprimand, or direct Bar Counsel to commence an attorney discipline action. Dismissal with a warning is appropriate when the Panel concludes that the violation is minor, that there is little or no injury to a client, the public, the legal system or the profession, and that there is little likelihood of repetition by the attorney. The Panel finds that the misconduct cited above is, indeed, serious because Mr. Whalen?s communications carried with them the potential for significant harm to MRWC. Mr. Whalen offered no justification for his intemperate remarks and the record reveals no instance when such remarks were authorized by MRWC.
Giving due consideration to the fact that Mr. Whalen?s representation of MRWC was a charitable undertaking , that his initial motivation was to promote the social justice mission component of his church, and the absence of evidence that Mr. Whalen?s conduct actually harmed MRWC, this Panel reprimands John M. Whalen, Esq. for his violation of Maine Bar Rules 3.1(a), 3.4(b)(1), 3.6(a) and 3.6(h)(1) in connection with his representation of MRWC.
For the Grievance Commission
Stephen G. Morrell, Chair Panel E
Harriet Dawson
Charles W. Smith Jr.
Footnotes
1The Board urged the Panel to conclude that Whalen, having undertaken the responsibility to complete the DHS grant application, violated the bar rules by withdrawing in the manner he did. In this aspect of the grievance, the Panel disagrees. The Panel notes that it was the MRWC membership who voted on April 13, 1998 to abandon the DHS application. The failure of MRWC to file a completed DHS application prior to an April 24, 1998 deadline cannot be attributed to Mr. Whalen. On the contrary, Mr. Whalen made it clear to all those involved that despite his decision to resign, he would do everything within his power to see that the process was completed on a timely basis.
Board of Overseers of the Bar v. Franklin A. Poe, Esq.
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Docket No.: BAR-08-6
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 9, 2009
Respondent: Franklin A. Poe, Esq.
Bar Number: 002305
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment; Preserving Identity of Funds and Property
Decision and Order
This matter came on to be heard before the undersigned Justice on December 15, 2008, pursuant to M. Bar R. 7.2(b)(1), (2). Pursuant to M. Bar R.7.2(b)(3), the matter was heard de novo. The Board was represented by Assistant Bar Counsel Aria Eee. Respondent Franklin A. Poe, an attorney, despite being notified of the hearing, did not appear, and was not represented by counsel.
There have been three separate grievance complaints filed against Poe, resulting in two separate informations which are the subject of the December 15 hearing before this Court. The first information resulted from the Grievance Panel proceedings conducted in June of 2007, which arose from the grievance complaints filed by Marian Chioffi on July 5, 2006, and Cecil Day on November 2, 2006. Poe did not respond to that information. The second information, to which Poe did file an answer, arose out of the grievance complaint filed by attorney Thomas Berry on July 18, 2008. The information arising from the Berry complaint was consolidated with the prior information arising from the Chioffi and Day grievance complaints. Because Poe failed to appear at the hearing held on both informations, he is defaulted on both informations.
Factual Background
A. First Information
Poe was appointed Trustee of the Josephine Day Revocable Trust and served in that capacity until he was suspended as Trustee by the Lincoln County Probate Court on January 2, 2008. The Trust's primary asset is the Trailing Yew Inn, a seasonally operated inn located on Monhegan Island. The Inn's operation accounts are controlled by the Trustee, and profits from the operation of the Inn, after expenses, are to be distributed to the beneficiaries of the Trust. The Trust provides that quarterly distribution of profits be made to the beneficiaries, and that the Trustee make an annual accounting.
Poe, as Trustee, failed to abide by the provisions of the Trust. He failed to make distributions on a quarterly basis. He made distributions to the beneficiaries for a period of time, but on an annual basis only. His accounting was insufficient. Poe provided no explanation for the ever-increasing miscellaneous expenses listed in his accounting, and the accounting did not provide sufficient detail to allow the beneficiaries to understand what the administrative and miscellaneous expenses represented. The profits distributed to the beneficiaries steadily declined, and the administrative expenses steadily increased, even though the gross income of the Trust remained essentially the same.1
Since March 28, 2003, Poe, as Trustee, has not made any distribution of profits or Trust assets to the beneficiaries, has not provided any accounting to the beneficiaries, and has not offered any satisfactory explanation to account for what happened to the Trust income. Poe has not communicated with the beneficiaries, despite many attempts by some of them to communicate with him. Poe has written several checks to himself in substantial amounts from Trust funds. The Inn's staff, including Marian Chioffi, the Inn's manager, has had great difficulty locating Poe, and has not been able to communicate with him, making operation of the Inn very difficult.
Moreover, the terms of the Trust provide that Chioffi has an option to purchase the Inn, which could be exercised as of May 11, 2007. Chioffi, who desires to exercise the option, has been unable to do so because Poe has not responded to her many attempts to contact him.
The Lincoln County Probate Court suspended Poe from the position as Trustee, and appointed James E. Day as special fiduciary, with full power to take possession of the property and to administer the Trust. Day's review of the Trust records indicates that Poe wrote checks to himself from Trust accounts between 2004 and 2007, totaling $70,000. Based on that evidence, which the Court accepts as credible, the Court finds that Poe has violated the following rules: M. Bar R. 2(c), 3.1(a), 3.2(f), 3.3(a), and 3.6(a).2
B. Second Information
The second of the two consolidated matters before the Court arises out of the complaint filed by Attorney Berry. Poe, in his role as an attorney, was in possession of files belonging to Berry's client. Poe failed to respond to Berry's requests for Poe to turn those files over to Berry. Poe was the clerk of a corporation of which Berry's client is a shareholder, and Poe has failed to file the corporation's annual report to the Secretary of State, resulting in the corporation being administratively dissolved. Poe also failed to respond to direct requests made to him by the client.
Based on that evidence, which the Court accepts as credible, the Court finds that Poe has violated Bar Rules 3.1(a), 3.2(f)(4), 3.6(a)(3), and 3.6(e)(2)(iv). 3
Sanctions
The Board has proved the allegations in both informations. The violations of the Bar Rules by Poe are very serious and flagrant. For the protection of the public, the only sanction appropriate for Poe's egregious conduct is disbarment pursuant to M. Bar R. 7.2(b)(5), effective immediately.
Accordingly, the Court orders that Franklin A. Poe is hereby disbarred from the practice of law in the State of Maine.
For the Court
Hon. Robert W. Clifford, Associate Justice ? Maine Supreme Judicial CourtFootnotes
1Poe provided the following information to Cecil Day, one of the Trust's beneficiaries, concerning the finances of the Tailing Yew Inn for the years 1997-2000.
| Beneficiary Distributions | "Misc. Expenses" | Gross Income | |
|---|---|---|---|
| 1997 | $8,484.82 |
$ 4,475.66 |
$226,058.72 |
| 1998 | $3,835.62 |
$15,700.04 |
$215,716.66 |
| 1999 | $4,460.10 |
$25,146.98 |
$222,276.19 |
| 2000 | $ 952.86 |
$18,260.02 |
$236,940.66 |
2Maine Bar Rule 2(c) provides:
Maine Bar Rule 3.1(a) provides:
Maine Bar Rule 3.2(f) provides that a lawyer shall not:
(2) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice.
Maine Bar Rule 3.3(a) provides:
Maine Bar Rule 3.6(a) provides:
(l) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without first associating with another lawyer who is competent to handle it;
(2) handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation; or
(3) neglect a legal matter entrusted to the lawyer.
3Maine Bar Rule 3.6(e)(2)(iv) provides that a lawyer shall "[p)romptly payor deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive."
Board of Overseers of the Bar v. Jeffrey Pickering, Esq.
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Docket No.: GCF 07-319
Issued by: Grievance Commission
Date: March 25, 2009
Respondent: Jeffrey Pickering, Esq.
Bar Number: 001644
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment
Report of Findings on Stipulation and Agreed Sanction Order of Panel B of the Grievance Commission
Panel B of Grievance Commission conducted a disciplinary hearing on the Petition of the Board of Overseers of the Bar (the "Board") against Jeffrey Pickering, Esquire ("Attorney Pickering") pursuant to Maine Bar Rule 7.1 (e) on March 19, 2009. The Board was represented by Jacqueline L.L. Gomes, Esquire, Assistant Bar Counsel, and Jeffrey Pickering, Esquire was present with his counsel, Brian E. Swales, Esquire.
Prior to opening arguments of counsel, the parties confirmed that they had no objection to the composition of the Panel and advised the Panel regarding the pleadings and exhibits. Materials considered by the Panel were the Board's disciplinary petition dated December 2, 2008, the Answer of Attorney Pickering dated December 5, 2008, the Board Exhibits 1 through 15 as supplemented by the Board under cover letter of March 10, 2009 and Board Exhibit 16, Stipulations, signed by counsel for Attorney Pickering and by Assistant Bar Counsel. Neither party offered live testimony.
After presentation by both parties with respect to the several violations of the Bar Rules as alleged by the Board and conference of counsel, the parties presented an agreed disposition for consideration by the Panel. Panel B accepted the agreed disposition and issues the following determinations and action.
Findings and Determinations
Action and Agreed Sanction Order
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Pursuant to M. Bar R. 7.1(e)(3)(C), the Panel concludes that Attorney Pickering did not act in knowing violation of his duties under the Bar Rules and that he has taken responsibility for his actions and the delays occasioned to Mr. Connolly, Trustee and the buyer, Mr. Ruoss. Attorney Pickering has addressed the various lien claims against the real estate arising out of debts of Mr. Lycette, leaving only the allocation between the IRS and the Maine Revenue Services unresolved at this point.
Panel B hereby finds on the Stipulations that Attorney Pickering has violated the Maine Bar Rules and hereby issues a Public Reprimand to Jeffery Pickering, Esquire as provide by Maine Bar Rule 7.1 (e)(3)(c). The Panel further adopts the additional condition required by the Board and accepted by Attorney Pickering that Attorney Pickering complete an evaluation under the Maine Assistance Program for Lawyers guidelines and provide the results to Bar Counsel. Assistant Bar Counsel shall make a referral to the Maine Assistance Program for Lawyers within ten days of the date of this Order. Attorney Pickering shall complete the evaluation within ninety days of the date of this Order.
By signature of his counsel, Attorney Pickering hereby waives the right to a further hearing under Maine Bar Rule 7.1(e) and further waives the right to file a petition for review under Maine Bar Rule 7.2(a).
For the Parties
Jacqueline L.L. Gomes, Esq. Assistant Bar Counsel
Jeffrey Pickering, Esq.
For the Grievance Commission
John R. Bass II, Esq. Chair
Susannah White
Maurice A. Libner, Esq.
Board of Overseers of the Bar v. John P. Frankenfield, Esq.
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Docket No.: GCF 99-135
Issued by: Grievance Commission
Date: September 22, 2000
Respondent: John P. Frankenfield, Esq.
Bar Number: 008176
Order: Reprimand
Disposition/Conduct: Neglect
Report of Findings of Panel D of the Grievance Commission
On September 22, 2000, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the finding of an information concerning alleged misconduct by the Respondent, John P. Frankenfield, Esq., (Frankenfield), as described in a Petition dated and filed by the Board of Overseers of the Bar (Board) on June 13, 2000.
Assistant Bar Counsel, Karen G. Kingsley, Esq., represented the Board, and Frankenfield was pro se, and both were present at the hearing. The complainant, James E. Quimby, Jr. (Quimby) having been provided with notice and an opportunity to be present, did not attend the hearing. He had, however, been notified and understood that the parties had stipulated to the following facts and agreed upon disposition of this matter by a reprimand, which the Panel now so finds and adopts:
Conclusion
The Panel concludes that the appropriate disposition of this case is a reprimand as Frankenfield neglected the filing of Quimby's bankruptcy petition although his law office had accepted a retainer for him to perform those services for Quimby. Frankenfield has no prior disciplinary record. A reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. ABA Standards for Imposing Lawyer Sanctions? 4.43.
For the Grievance Commission
Patricia Ender, Esq., Chair
Theodore K. Hoch, Esq.
Celeste Branham
Board of Overseers of the Bar v. Laurie Anne Miller
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Docket No.: BAR-03-08
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 21, 2005
Respondent: Laurie Anne Miller
Bar Number: 003231
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
Opinion and Order
After consultation with and by stipulation of counsel for the parties on March 10, 2005, it is HEREBY ordered pursuant to M. Bar R. 7.3(g) that Laurie Anne Miller's resignation from the Maine bar dated February 8, 2005 is hereby accepted and as of this date her name is now removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Ms. Miller may not seek reinstatement to practice law in Maine under M. Bar R. 7.3(j) until March 21, 2010.
It is further ordered pursuant to M. Bar R. 7.3(g)(3) that Ms. Miller's supporting affidavit of February 8, 2005 is now impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Ms. Miller seek reinstatement to practice law, her affidavit shall then be made public.
This resignation is expressly conditioned upon Ms. Miller's timely compliance with the Award and Determination of the Fee Arbitration Commission Panel in Dispute No. 04-365 dated February 24, 2005, whereby Ms. Miller is required by M. Bar R. 9(i) and this Order of Resignation to pay the attorney fee refund amount of $172.50 to her former client in that matter by no later than April 5, 2005.
Ms. Miller has certified to the Court and to the Board of Overseers of the Bar, and it is so found that she has complied with the notification and reporting requirements of M. Bar R. 7.3(i).
This order is a matter of public record under M. Bar R. 7.3(g)(3).
For the Court
Hon. Jon D. Levy, Associate Justice ? Main Supreme Judicial Court
Board of Overseers of the Bar v. David N. Fisher, Jr., Esq.
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Docket No.: Bar 09-1
Issued by: Single Justice
Date: March 10, 2009
Respondent: David N. Fisher, Jr., Esq.
Bar Number: 000750
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
Order
Attorney David N. Fisher was admitted to practice in Maine in 1966. This matter is before the Court to consider his voluntary resignation, dated December 2, 2008, that has been tendered pursuant to M. Bar R. 7.3(g). Attorney Fisher's letter of resignation is supported by his Affidavit dated December 10, 2008. On February 5, 2009 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Fisher's resignation from the Maine bar.
Therefore, after hearing at which Attorney Fisher appeared and was represented by counsel, it is hereby ORDERED:
Pursuant to M. Bar R. 7.3(g)(3), David N. Fisher's resignation from the Maine bar is accepted. Thirty (30) days from the date of this Order his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Mr. Fisher shall comply with the notification reporting requirements of M. Bar R. 7.3(i)(I) within thirty (30) days of this date.
As required by M. Bar R. 7.3(g)(3), David N. Fisher's supporting Affidavit dated December 10,.2008 is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. Should David N. Fisher seek reinstatement to the Maine bar, that Affidavit may then be made public without further Order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Elizabeth A. Morrow, Esq.
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Docket No.: BAR-07-09
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 16, 2007
Respondent: Elizabeth A. Morrow, Esq.
Bar Number: 007809
Order: Reprimand Reciprocal Discipline
Disposition/Conduct:
Order
This Court has received a certified copy of the Order of Public Reprimand by the Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated June 21, 2007, publicly reprimanding Attorney Elizabeth A. Morrow for her violations of the Supreme Court's Rules of Professional Conduct. Attorney Morrow has defaulted by failing to file any response to this Court's Order and Notice dated August 30, 2007 for her to show cause why the Court should not impose identical discipline to that imposed upon her in Massachusetts, as requested by Maine's Board of Overseers of the Bar.
Therefore, based upon that default, this Court hereby ORDERS:
For the Court
Hon. Donald G. Alexander, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Wayne R. Murphy, Esq.
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Docket No.: BAR-07-3
Issued by: Justice, Maine Supreme Judicial Court
Date: July 10, 2007
Respondent: Wayne R. Murphy, Esq.
Bar Number: 008226
Order: Reprimand Reciprocal Discipline
Disposition/Conduct:
Order
Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated May 1, 2007, publicly reprimanding Attorney Wayne R. Murphy for his violations of the Supreme Court's Rules of Professional Conduct. Attorney Murphy has defaulted by failing to file any response to this Court's Order and Notice dated May 18, 2007 for him to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts, as requested by Maine's Board of Overseers of the Bar.
Therefore, based upon that default, this Court hereby ORDERS:
For the Court
Hon. Warren M. Silver, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jennifer R. Raymond, Esq.
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Docket No.: BAR 08-02
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 3, 2008
Respondent: Jennifer R. Raymond, Esq.
Bar Number: 008540
Order: Suspension Reciprocal Discipline
Disposition/Conduct: Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Inadequate Preparation; Neglect
Order M. Bar R. 7.3(h)
On October 31, 2008 the Board of Overseers of the Bar petitioned this Court for an Order of Default in the reciprocal discipline matter filed by the Board in March 2008. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the Order Of Term Suspension as issued by the Commonwealth of Massachusetts Supreme Judicial Court adopting the Massachusetts Professional Conduct Board's recommendation to suspend Ms. Raymond.
The U.S. Postal Service's certified return receipt of service confirms that on May 3, 2008, Ms. Raymond received and signed for a copy of this Court's Order and Notice dated April 25, 2008. Thereafter, Ms. Raymond had thirty (30) days in which to notify this Court of any claim by her that identical discipline in Maine would be unwarranted. Attorney Raymond has defaulted by failing to ever file any response to this Court's Order and Notice.
Upon consideration of the Board of Overseers of the Bar's Motion for Default and Petition for Reciprocal Discipline, in light of Ms. Raymond's opportunity but failure to ever respond, it is hereby ORDERED as follows:
For the Court
Hon. Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Richard A. Lord, Esq.
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Docket No.: BAR-01-01
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 10, 2001
Respondent: Richard A. Lord, Esq.
Bar Number: 000664
Order: Suspension
Disposition/Conduct: Excessive Fees; Identifying Commencement, Continuation, and Termination of Representation
Stipulation of Facts and Agreed Upon Order
This matter comes before the Court pursuant to M. Bar R. 7.2(b)(1)(2) and the Court's order of March 15, 2001 whereby the Defendant, Richard A. Lord, Esq., consented to and the Court authorized the Board to file an Amended Information directly with the Court without the necessity of hearing by the Grievance Commission under Maine Bar Rules 7.1 (d), (e).
The Board was represented by Assistant Bar Counsel, Geoffrey S. Welsh, Esq., and the Defendant was represented by Philip P. Mancini, Esq. As recited below, the parties stipulate to the facts, and agree to the entry of an order disposing of this case as follows:
I. Findings of Fact
A. Count I-McCourt
For many years the Defendant was the personal attorney for Denise Cloutier (Cloutier), and he drafted her Last Will and Testament, which she executed on April 2, 1997 when she was then 70 years old. Under the terms of her Will, Cloutier left all of her property to James A. McCourt (McCourt), and she nominated the Defendant to be the Personal Representative (PR) of her estate.
Cloutier's Will also included the following provision:
Inserting this language into Cloutier's Will was the Defendant's idea, not Cloutier's, and the Defendant did so in keeping with his practice of including such a provision in a Will only when he is the PR named in the instrument. The Defendant explained his estate PR fee arrangement to Cloutier by analogy to a real estate broker's percentage fee, and he claimed that he had intended to charge Cloutier's estate a flat fee instead. Significantly, the Defendant did not have Cloutier's separate written consent to or other written confirmation of this unusual compensation arrangement.
On October 12, 1998 Cloutier died, and on October 20th the Defendant filed an Application for Informal Probate of Will and Appointment of Personal Representative with the Cumberland County Probate Court (the Probate Court). Shortly thereafter, the Probate Court appointed the Defendant as PR of Cloutier's estate, and informally admitted Cloutier's Will to probate. As an experienced probate attorney, based upon the relevant provisions of the Maine Probate Code, 18-A M.R.S.A. ?1-101, et seq., and because of Estate of Davis, 509 A.2d 1175 (Me. 1986), and Harrington v. Lord, 704 A.2d 1211 (Me. 1997), the Defendant knew or should have known before he sought or accepted appointment as PR of Cloutier's estate that: 1) Determining the PR's compensation, and that of any attorney employed by the PR, based upon a percentage of the estate was a violation of M. Bar R. 3.3(a); and 2) Lord's total combined fees as the PR and as the PR's attorney were required to be reasonable.
Cloutier's estate totaled approximately $110,000.00 of liquid assets, and the Defendant initially charged the estate legal fees of $5,500.00, the Defendant deducting that sum from the McCourt bequest and claiming two separate legal fees: i.e., one for being the PR and one for being the PR's attorney. The Defendant concedes and acknowledges that it was improper and unreasonable for him to be compensated in two capacities from the assets of Cloutier's estate and to base that compensation upon the aforementioned provision, which he had drafted. Such misconduct constituted entering into an agreement for and charging an illegal and excessive fee in violation of M. Bar R. 3.3(a), Davis and Harrington, supra. When, however, McCourt later complained through separate legal counsel about the amount of the fees, the Defendant immediately agreed to a reduction of these charges to the sum of $3,300.00, and promptly refunded the difference to him. On July 11, 1999 a Panel of the Fee Arbitration Commission confirmed the $3,300.00 charge as fair and reasonable.1
B. Count II-Currier
On March 3, 1995 Lynn M. Currier (Currier) hired the Defendant to represent her in a divorce from her then husband, Richard Currier (Richard)2 and on June 28th the Sagadahoc County District Court granted her divorce. During their marriage, the Curriers had one child, Darren A. Currier, who was born on August 20, 1987. On March 14, 1997 the Defendant began representing Currier in post divorce litigation concerning child support, and on that date he filed a Motion for Contempt against Richard. On October 28, 1997 the District Court mediator filed her child support worksheet showing Richard's weekly child support obligation to be $54.00.
Sometime after the divorce, Richard was charged with having committed a number of criminal offenses, and he sought out the Defendant to represent him in them. Although the Defendant agreed to represent Richard in at least two of those criminal matters, he neither disclosed to Currier nor obtained her informed written consent to his representation of Richard. In fact, Currier did not become aware of the Defendant's representation of Richard until she herself checked with the District Court Clerk's Office in Lewiston. The Defendant's simultaneous representation of Richard and Currier was problematic for Currier since the Defendant repeatedly had informed her that he could not collect the past due child support because he could not locate Richard. By simultaneously representing Currier and Richard without Currier's knowledge and consent, the Defendant thereby violated M. Bar R. 3.4(a), (b), (c).
C. Richard A. Lord
The Defendant has been a practicing Maine attorney in good standing for over 35 years. During the course of that time he has devoted numerous hours to public service and pro bono work. He is now 65 years of age. Several years ago he and his wife were granted custody of their 12 year old grandchild who has numerous health problems, and the Defendant and his wife have devoted an inordinate amount of time to her care. Because of the time and attention necessary to assist in the care of his grandchild, focusing sufficient attention on his sole practice has been difficult. These violations are the culmination of that situation.
II. Stipulated Discipline
Bearing in mind the nature of the substantive misconduct described above and the aggravating and mitigating circumstances surrounding that misconduct, the parties hereby stipulate and agree to the entry of a decision and order disposing of this case as follows:
It is hereby ORDERED: That the Defendant is suspended from the practice of law in Maine for a period of sixty (60) days, thirty (30) days of that suspension itself being suspended for a period of one year subject to the following terms and conditions:
For the Parties
Geoffrey S. Welsh, Esq.Philip P. Mancini, Esq.
For the Court
Hon. Leigh I. Saufley, Associate Justice- Maine Supreme Judicial Court
Footnotes
1After authorizing his attorney to settle the fee dispute with the Defendant, McCourt filed a Petition to arbitrate the dispute with the Fee Arbitration Commission. Thus, the Fee Hearing Panel ratified the agreement earlier reached by McCourt's attorney and the Defendant.
2Currier has since remarried, and now goes by her married name of Lynn M. Quillen.
Board of Overseers of the Bar v. Vanessa A. Bartlett, Esq.
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Docket No.: GCF 04-079
Issued by: Grievance Commission
Date: December 10, 2004
Respondent: Vanessa A. Bartlett, Esq.
Bar Number: 008873
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Neglect
Report of Findings of Panel E of the Grievance Commission
On December 10, 2004, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Vanessa A. Bartlett, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on August 19, 2004.
Present at the hearing were Assistant Bar Counsel Nora Sosnoff, representing the Board; and Attorney Karen G. Kingsley representing Attorney Vanessa A. Bartlett, who was also present. The complainant, Alan J. Wells, was unable to be present, but communicated to Assistant Bar Counsel Sosnoff that he agreed with the proposed Report of Findings.
The Panel heard testimony from the respondent, Vanessa A. Bartlett, pursuant to questioning by Assistant Bar Counsel Sosnoff and Attorney Kingsley. Having heard that testimony and having reviewed the proposed findings presented by the parties, the Panel makes the following disposition:
Findings
Conclusion and Sanction
Attorney Bartlett?s above cited violations of the Maine Bar Rules resulted from inexperience in law practice management and lack of mentoring by an experienced practitioner. These issues were aggravated by a change of law office location and file storage sites. Attorney Bartlett has corrected the former flawed systems of law practice management. Her new protocols are time tested and are being strictly followed, as a result of which it is unlikely that there will be any recurrence of the misconduct that understandably led to Mr. Wells? grievance complaint.
The Panel concludes that the following violations occurred:
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Vanessa A. Bartlett and the Panel does hereby impose same, effective this date.
For the Grievance Commission
Stephen G. Morrell, Esq., Chair
Charles W. Smith, Esq.
Harriet R. Tobin
Board of Overseers of the Bar v. Alice E. Knapp, Esq.
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Docket No.: GCF 06-248; GCF 06-358
Issued by: Grievance Commission
Date: November 10, 2008
Respondent: Alice E. Knapp, Esq.
Bar Number: 007017
Order: Reprimand
Disposition/Conduct: Conflict of Interest: Simultaneous Representation; Threatening Prosecution
Report of Findings M. Bar R. 7.1(e)(2)(E) and M. Bar R. 7.1(e)(4)
On November 10, 2008, with due notice, Panel C of the Grievance Commission conducted a public, stipulated disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Alice E. Knapp, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 19, 2008.
At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration. The complainant, John Hurley, was provided with a copy of this Report (in its proposal form) and appeared / did not appear for the hearing on November 10, 2008.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Alice E. Knapp (Knapp) of Richmond, County of Sagadahoc, State of Maine, has been at all times relevant here to an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Knapp was admitted to the Maine bar in 1989 and she is in private practice.
On June 20, 2006 Bar Counsel docketed a sua sponte (GCF# 06-248) complaint against Attorney Knapp resulting from a previously issued District Court family matter decision forwarded to Bar Counsel. That decision considered Attorney Knapp's Motion to Remove Opposing Counsel For Conflict of Interest ('Motion") and ordered opposing counsel to remove himself from the pending divorce case at issue. Nine months after Attorney Knapp filed her Motion and subsequent to the District Court's decision on the Motion, opposing counsel's then client, John Hurley, Jr., filed a related complaint against Attorney Knapp. Mr. Hurley's October 18, 2006 complaint (GCF# 06-358) and Bar Counsel's sua sponte complaint both concerned Attorney Knapp's initial involvement in the Hurley divorce. That involvement included a period in which Attorney Knapp improperly represented both parties.
By way of background, Attorney Knapp explained in her initial response to the Board that the joint representation had been made at the request of one of the parties and was agreed to by both of the Hurleys. Apparently, the couple had expressed their wish to save money on legal expenses and at that time, they believed that they were generally in agreement on the terms of their divorce. Attorney Knapp had her initial reservations about the propriety of such a joint representation. Those reservations led her to consult with a colleague prior to forwarding a proposed joint representation agreement to the parties. Based on the colleague's advice, Attorney Knapp did send such an engagement letter to advise the parties of their need to retain separate counsel should they at any time find they were no longer in agreement regarding the terms of their divorce. Attorney Knapp asserted that until she was notified otherwise by Bar Counsel's letter, she had been unaware that the Bar Rules prohibit counsel from jointly representing divorcing parties. Attorney Knapp now knows such joint representation is prohibited by M. Bar R. 3.4(c)(1) even when the representation is intended for the limited purpose of drafting a settlement agreement. Prior to the sua sponte docketing, Attorney Knapp did not understand that the parties to a divorce are considered to be involved in litigation, no matter how the status of the proceeding is characterized. According to Attorney Knapp, after she drafted a settlement agreement on behalf of the parties, Mr. Hurley advised her that he had decided to engage his cousin, opposing counsel, to represent him in the divorce. According to Attorney Knapp, Mr. Hurley stated that he had no objection to Knapp's continuing representation of Ms. Hurley.
Attorney Knapp also explained that in an attempt to level the playing field and to avoid an unnecessary disruption of the pending divorce proceeding, she implored opposing counsel to withdraw from representing his cousin in the divorce. Attorney Knapp did so by letter and she likewise offered to withdraw from representing Ms. Hurley based upon opposing counsel's assertion that Mr. Hurley would no longer agree to waive her conflict. Attorney Knapp's letter advised opposing counsel of Ms. Hurley's strenuous objection to his continuing representation of Mr. Hurley unless both parties were prepared to waive their respective counsel's conflicts. That letter cited and excerpted the Bar Rules and Advisory Opinion #2 of the Professional Ethics Commission of the Board of Overseers of the Bar. The letter also threatened to file a complaint with the Board of Overseers if opposing counsel declined to either withdraw from Mr. Hurley's representation or alternatively, to instruct his client to sign the once promised waiver of conflict. When opposing counsel declined both options, Attorney Knapp withdrew from the case and filed a motion to disqualify to protect Ms. Hurley's interests while she helped transition her client to new counsel.
Following the Grievance Commission's authorization for a disciplinary hearing, Attorney Knapp acknowledged that she engaged in misconduct, having violated her duties under the Code when she undertook the representation of both Hurleys for their contested divorce pursuant to a "Joint Spousal Representation Engagement Letter" That "cost saving" effort resulted in a violation of M. Bar R. 3.4(c)(1). Additionally, while Attorney Knapp believes that the language of M. Bar Rule 3.6(c), prohibiting lawyers from threatening or suggesting that disciplinary charges will be brought "solely to obtain an advantage in a civil matter," bears clarification, she accepts the determination that her letter to opposing counsel was improper under that Rule. The combined violations ultimately resulted in a finding that Attorney Knapp likewise violated M. Bar R. 3.1(a) (conduct unworthy of an attorney).
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Under normal circumstances, Attorney Knapp's above-outlined and agreed upon misconduct would have to some extent delayed Ms. Hurley's case while she obtained new counsel. It may also have caused Ms. Hurley to incur additional, duplicative legal expenses. However, we acknowledge Attorney Knapp's argument that the delay in moving the divorce forward may have arisen as a result of opposing counsel's refusal to withdraw as Mr. Hurley's counsel.
Attorney Knapp has accepted responsibility for her violations of the Code. At the hearing, she expressed her remorse regarding those violations. Attorney Knapp has no history of prior discipline and she reiterates her desire to ensure that other colleagues learn from her mistakes.
Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Knapp agrees that she did in fact violate the Code of Professional Responsibility, a public reprimand serves those purposes.
By their signatures below, the parties hereby waive their right to a contested hearing and the formalities therein, pursuant to M. Bar R. 7.1(e)(2)(C),(E). Attorney Knapp further waives the right to file a Petition for Review under Maine Bar Rule 7.2(a).
Therefore, the Panel accepts and approves the Stipulated Report of Findings and concludes that for her violation of the above-referenced Bar Rules, the appropriate disposition of this case is a public reprimand to Alice E. Knapp, Esq. as provided by M. Bar R. 7.1(e)(3)(C) which is now issued and is now imposed upon her effective this date.
For the Grievance Commission
David Abramson, Esq., Chair
Martha Gaythwaite, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Thomas F. Adams, Esq.
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Docket No.: BAR-04-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 15, 2005
Respondent: Thomas F. Adams, Esq.
Bar Number: 003986
Order: Suspension
Disposition/Conduct: Disclosure of Interest; Conflict of Interest; Successive Representation; Confidentiality of Information
Decision and Order
This matter was heard by the Court on January 19, 2005, on an information filed by the Board of Overseers of the Bar against Thomas F. Adams, Esq. alleging professional misconduct both during and following his representation of Christopher V. and Mariah Lancaster and their business, Presque Isle Glass, Inc., a sub-chapter S corporation. The Board was represented by Assistant Bar Counsel Geoffrey S. Welsh and the defendant was represented by Kevin M. Cuddy, Esq. Board Exhibits 1-12, 14-15, 17, 19-20, and 22-30 and Defendant Exhibits 1, 2 and 15 were admitted without objection.
At the hearing, the Court heard testimony from Mr. Adams, Mr. Lancaster, Mr. Lancaster's former father-in-law, James F. Pritchard, and Galen Rockwell, a Certified Public Accountant practicing in Caribou. Based on its review of the exhibits admitted and the testimony of the above witnesses and after review of the post-trial briefs submitted by counsel, the Court finds the following facts and draws the following conclusions:
I. Findings
Thomas Adams, Esq. has a bachelor's degree in accounting and a master's degree (LLM) in taxation. He is a member of the Maine Bar. Since approximately 1995, one of his clients has been James F. Pritchard of Chapman, Maine, for whom Adams has been preparing tax returns and doing real estate closings. In 1999 Pritchard suggested that his son-in-law, Christopher V. Lancaster, also seek Adams advice. Thereafter Adams began advising Christopher V. and Mariah P. Lancaster in connection with first acquiring from Portland Glass, where Christopher had been working, their Presque Isle facility. When that did not happen, Adams helped them establish their own business, Presque Isle Glass. Adams reviewed Christopher's employment contract with Portland Glass and formed Presque Isle Glass, Inc. (a sub-chapter S corporation owned by the Lancasters). After Christopher negotiated a loan commitment of $25,000 from First Citizens Bank secured by personal guarantees from the Lancasters and Mariah's parents, the Pritchards, a second mortgage on the Lancasters' home and a mortgage on rental property owned by the Pritchards, Adams drafted the loan documents and the guarantee documents, and closed the loan. Adams assumed without discussing or memorializing that his clients? consented to any conflicts he might have in connection with this loan transaction. Later Adams represented Presque Isle Glass in a trademark infringement claim by Portland Glass. As a result of that claim, Presque Isle Glass ceased doing business on August 16, 2000 after forty-two days of operation.
In early 2001 Lancaster asked Adams to prepare both the corporation's and his and Mariah's 2000 personal income tax returns and to put them through bankruptcy. Presque Isle Glass, Inc. had a 2000 operating loss of $28,198 which, Adams advised, could be flowed through to the Lancasters' personal return, resulting in a $7000 tax refund. Among other debts, the Lancasters intended to reaffirm the First Citizens Bank debt because Mariah's parents had guaranteed it. The plan that Adams had devised was to use the tax refund to restructure the $25,000 First Citizens Bank loan.
Before filing the bankruptcy petition, Mariah privately confided to Adams of her marital unhappiness generally and also her specific unhappiness with the prospective bankruptcy filing. Adams counseled Mariah not to divorce Christopher.
Adams thereafter prepared and submitted a Chapter 7 Bankruptcy Petition on behalf of both the Lancasters and Presque Isle Glass, Inc. A Chapter 7 Bankruptcy is:
U.S. Trustee Program/Department of Justice website.
The Chapter 7 Petition, which Adams prepared and the Lancasters signed, indicated that the Lancasters intended, after filing, to reaffirm their debt to Adams ($4700) and their guarantee of the First Citizens Bank loan ($25,000). Lancaster independently negotiated with the Bank hoping to restructure the loan i.e., stretch out the payments, in exchange for the anticipated $7000 tax refund.
In a letter to Bar Counsel, Adams explained his position on Lancaster reaffirming the debt that his other client, Pritchard, had guaranteed.
Almost immediately the Trustee demanded that the Lancasters turn over to him for the benefit of the unsecured creditors the $7000 refund when received. On April 20, 2001 Adams wrote Lancaster:
Snowmachines should be sold.
Refile after the [refund] is with Citizens and the note is refinanced over Long Term. Must allow min of 90 days after refinancing. Blow away all credit cards.
The following day, the Lancasters sought a second opinion and "decided to switch to" Alan Harding for future counsel. The Lancasters immediately advised Adams of their decision and Adams, plainly miffed, promptly wrote the Pritchards as follows:
The attached is self explanatory, without further comment. It is given to you simply for the purpose of being alerted to the possible need to obtain legal counsel for yourselves in the Lancaster/Presque Isle Glass bankruptcy. I realize that Mariah is "protecting" your interests, but not to be unkind, I don't think she is fully aware of what is going on. Things seem to have come unglued when I suggested selling the snowmachines.
Attorneys are used to such client re-actions and it is certainly Lancaster's prerogative to seek other counsel. Harding will be free of the interrelationship constraints, and possibly can do something for Lancaster that I could not. I don't mind him seeking a second opinion but it would have been nice to be paid for the first one, or at least discuss the problems. I simply will not represent him again on any issue. He has blown away the best friend he ever had.
Unfortunately, having represented Lancaster, I know too much, all now sealed in concrete. The ethics of our profession further prevent me from representing your interest against him, specifically in recovery of your $25,000 loan guaranty. I highly recommend that you consult with Hal Stewart Jr, who takes ethics and equity as seriously as I do.
The only interest I have in the bankruptcy outcome is to seek some recovery on my own legal fees for the past year. In pursuing those interests, I am entitled to be heard in a Chapter 7 creditors meeting or to file objections to any chapter 13 workout proposal. To that extent, we both have our own axes to grind, separately, as injured creditors.
Mariah's interests are her own and yours. I can no longer give her grandfatherly advice and with hindsight, probably never should have.
Regards, Thomas F. Adams
In due course successor counsel converted the pending Chapter 7 Bankruptcy into a Chapter 13 Bankruptcy which is:
U.S. Trustee Program/Department of Justice website.
The following week, Mariah and Christopher separated and soon thereafter Mariah filed for divorce. In November 2001 the Bankruptcy Judge ordered that the Chapter 13 be converted into two separate Chapter 7 cases. New counsel recommended that the two cases be dismissed because the tax refund had been spent (apparently to reduce the First Citizens Bank debt). The Chapter 7 cases were dismissed in January 2002, and the divorce became final in June 2002. In the divorce, Christopher was ordered to pay to Mariah as alimony forty-one monthly payments of $541 per month. He could make these payments directly to First Citizens Bank if he chose.
After the divorce and before the next bankruptcy filing, Adams sued Christopher for the $4700 in counsel fees that remained unpaid.
On September 9, 2002, Attorney Bernard O'Mara filed a Chapter 7 Bankruptcy Petition for Christopher alone. In the petition Christopher listed, among others, his debts to Adams for $4700 and to First Citizens Bank for $18,500 and did not indicate that he intended to reaffirm either. Adams received a notice for a meeting of creditors scheduled for 9:00 A.M. on October 28, 2002, and attended.
Adams testified that he attended the October 28, 2002 creditors meeting only in his own behalf, i.e., the $4700 debt for his fees. The Court does not accept his testimony on this point. First, Adams signed the "341 Hearing Signature Sheet" as counsel for James Pritchard. Second, in a January 13, 2003, letter to the Board, Adams admitted attending the meeting in two capacities:
And later in the same letter, he wrote:
My appearance before the trustee was simply to inquire if Lancaster's debt to Pritchard would be reaffirmed.
Again, in his letter of January 13, 2003 Adams wrote:
Then in a letter dated March 24, 2003 Adams further explained that his:
From notes produced from his file that he prepared prior to the creditors' meeting, Adams was aware that pursuant to the divorce decree Christopher had been ordered to make monthly alimony payments to Mariah exactly equal to the debt that Mariah was paying to First Citizens Bank, and that alimony was not dischargeable in bankruptcy.
Even though Mariah continued to be liable for and was paying off the loan to First Citizens, Adams appeared at the creditors' meeting and advised Christopher, his lawyer, 0?Mara, and the Trustee that if Christopher did not reaffirm the debt to First Citizens Bank, he would advise the IRS of this fact and the IRS would disallow much of the 2000 tax refund.
Indeed, two days after the creditors' meeting Adams wrote the following letter to the Internal Revenue Service in which the lawyer described one of his former clients as "innocent" and the other as "solely responsible," referenced "allegations of fraud" and "mischievous economic conduct" and all but suggested that the Service should consider imposing fraud penalties against Christopher. 1
The Board argues that Adams:
II. CONCLUSIONS
The Court is satisfied that Adams incorrectly analyzed the Lancasters' legal right to flow through to their 2000 personal tax return the $28,000 loss experienced by Presque Isle Glass, Inc.; and that he incorrectly analyzed the Lancasters' right vis-a-vis the Trustee in Bankruptcy to retain any income tax refund to be received while in a Chapter 7 Bankruptcy. Whether these judgments amount to a violation of Me. Bar Rule 3.6(a) ("A lawyer must employ reasonable care and skill ... in the performance of professional services.") is a much closer question, a question I do not resolve.
The Court is also satisfied that Adams drafted the Lancasters' 2001 Bankruptcy Petition to indicate they intended to reaffirm their debt to him without first discussing that decision with them in violation of Me. Bar Rule 3.4(a)(1) ("Before commencing any professional representation, a lawyer shall disclose to the prospective client any ... interest of the lawyer ... that might reasonably give rise to a conflict of interest .... ").
Further, Adams violated Me. Bar Rule 3.4(b)(1) ("A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest .... ") by counseling one client not to divorce another client and violated both Me. Bar Rule 3.4(b)(1) and 3.4.(d)(1)(i) ("[A] lawyer shall not commence representation adverse to a former client . . . if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.") in undertaking to represent James F. Pritchard at Christopher Lancasters' Creditors' Meeting in 2002. That representation was, in fact, related to the subject matter of the former representation and did, in fact, result in the use of confidential information obtained through his prior representation of the Lancasters (i.e., the, at least, "aggressive" deduction taken in the Lancasters' 2000 tax return).
Finally, Adams' letter to the IRS on October 30,2002 was a violation of Me. Bar Rule 3.6(h) ("Except as permitted by these rules or as required by law or by order of court, a lawyer shall not ... knowingly reveal a confidence or secret of the client; use such a confidence or secret to the disadvantage of the client; or use such confidence or secret to the advantage of the lawyer or a third person."). Believing that Christopher was being relieved of a debt to the detriment of his client, Pritchard, and former client, Mariah, Adams used "a confidence or secret," i.e., the fact that Christopher and Mariah had previously claimed a personal deduction for a Subchapter S corporate loss, to "the disadvantage of' Christopher and to the advantage of Adams, Pritchard, and perhaps Mariah. As Adams wrote to the Board on January 13: "My disclosure of fact will indeed cost Lancaster substantial additional taxes, negating [a] refund to which he was not entitled."
For many reasons the disclosure was not authorized by Me. Bar Rule 3.6(b) ("A lawyer who receives information clearly establishing that a client has during the representation perpetrated a fraud upon any person or tribunal shall ... reveal the fraud to the affected person or tribunal .... "). First, the section relates to information acquired during representation, not thereafter. Second, the information must reveal that the client has committed a fraud "during the representation" and here the conduct Adams was complaining about had just occurred.2 Third, with Mariah continuing to be liable, and Christopher through his alimony obligation indirectly liable, fraud certainly had not been "clearly established." Fourth, it is doubtful that the IRS is either a "person or tribunal" within the meaning of this rule. Fifth, although he uses the word "fraud" twice, and the phrase "mischievous conduct" and "innocent spouse" once each, Adams does not claim that he was reporting a fraud.
Adams argues that in 2002 he had a legal obligation under the Internal Revenue Code or Regulations to disclose his understanding of the tax consequence of Christopher's bankruptcy filing on the continuing viability of a tax refund Christopher had claimed for the tax year 2000 in a return prepared by Adams in 2001. He could point to no authority in the IRS Code or Regulations to support his view and his expert witness at the hearing could not either.
To be specific, none of the authority cited by Adams or his counsel support the notion that a tax preparer has a continuing obligation to the IRS to report conduct of a former client that might call into question the efficacy of a tax return prepared when the former client was the client. This is especially the case when, in Adams' view, the return was correct when prepared and remained correct as long as he was counsel.
III. Sanction
Because Thomas Adams has violated several Bar Rules, the Court believes that discipline is in order. Because he has an unblemished professional record, the Court HEREBY ORDERS that Thomas F. Adams be and hereby is suspended from the practice of law in Maine for a period of six (6) months commencing July 1, 2005, with that suspension itself being suspended for six (6)months on the condition that Thomas F. Adams attends, before December 31, 2005, twelve (12) hours of continuing legal education approved by Bar Counsel on the subject of professional ethics.
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Footnotes
1Adams? letter to the IRS is set out in full below:
Internal Revenue Service 36 North Street Presque Isle, Maine 04769
Re: Christopher and Mariah Lancaster, Form 1040, Understated Income Year 2000
Gentlemen,
This office prepared a tax return for Christopher and Mariah Lancaster, which is enclosed (page 1 only).
I was dismissed as legal counsel immediately following the filing of the year 2000 Form 1040, and cannot therefore prepare the necessary 1040X for this client. It has come to my attention that losses claimed on schedule E, for which the client was at risk at the time of the return was prepared, no longer qualify as an offset to the parties income. At the time of return preparation, taxpayer was at risk for the full amount of loss claimed, and in his simultaneous Bankruptcy (Chap 7) petition reaffirmed the debt which formed the basis for his at-risk qualification.
The original Chapter 7 filing was changed to a chapter 13 by other counsel, and that filing was dismissed, all without timely notice to me. Taxpayer has again filed a Chapter 7 petition and does not now reaffirm the debt that formed the necessary basis for claiming the sub chapter S loss originally reported. To my knowledge Mr. Lancaster never made any payments toward reduction of that debt.
It is my opinion, that Mariah Lancaster qualifies as an innocent spouse in this matter; that it is Christopher Lancaster who was solely responsible for the loss of the Sub S corporation. Allegations of fraud by Mr. Lancaster through his S Corporation, were made in litigation involving Mr. Lancaster, and also a subsequent divorce judgment rendered for Mariah Lancaster, required restitution to Mrs. Lancaster, based upon that mischievous economic conduct.
Under 11 USC 523 (a), the current bankruptcy filing does not, of course, result in a discharge of the tax liability that will arise under any voluntary amended return or assessment made by the Service. I offer no opinion as to whether Title 11 section 523(s)1(c), or Title 26 Section 6662 regarding Accuracy Related and Fraud Penalties apply.
Sincerely, Thomas F. Adams
cc: Bernie O'Mara, Attorney at Law
2Adams argues that the fraud may have occurred during his representations of the Lancasters if they (or perhaps one of them) never intended to pay the debt to First Citizens Bank. Thus, he argues, his license to practice before the IRS was at risk and he had the right to protect his license. The court is unpersuaded that this was Adams' motivation for reporting Christopher to the IRS. Consistent with Adams' plan, the Lancasters used their tax refund to reduce the debt to the Bank and, notwithstanding Christopher's pending bankruptcy, Mariah remained liable to the Bank and was making payments. Further, the divorce court had fashioned an approach that required Christopher to mitigate any loss by Mariah. All this was known by Adams when he wrote the IRS.
Board of Overseers of the Bar v. Ralph W. Brown, Esq.
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Docket No.: BAR-01-06
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 25, 2002
Respondent: Ralph W. Brown, Esq.
Bar Number: 002704
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Excessive Fees; Standards of Care and Judgment
Order
Counts I and II of this matter are before the Court on an information by the Board of Overseers of the Bar, pursuant to Maine Bar Rules 7.2(b) (1), (2) and the Court's Order of December 4, 2001, which authorized the Board to file an information without the necessity of any further review or hearing by the Grievance Commission under Maine Bar Rules 7.1(d),(e). The Court's Order of December 4th resulted from a Stipulated Waiver of Grievance Commission Review and Hearing signed by the parties. Additionally, the parties have agreed and stipulated that the Court also is disposing of three other grievance complaints as Counts III, IV and V (GCF # 02-92 / Andrew Germaine, GCF #02-140 / Vincent Son and GCF #02-182 / Juli Hughes), without the necessity of any Grievance Commission review and hearing under M. Bar R. 7.1 (d),(e).
I.
STIPULATIONS
The parties have stipulated to the following material facts:
COUNT I
Sua Sponte I GCF#99-66
COUNT II Chief U.S. Bankruptcy Judge Goodman - Standing Chapter 13 Trustee Fessenden I GCF #00-46
COUNT III
Andrew Germaine I GCF#02-92
COUNT IV
Vincent Son I GCF#02-140
COUNT V
Juli Hughes I GCF#02-182
II.
Sanctions
Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must now consider an appropriate sanction. By the stipulations herein, Brown has admitted his ethical misconduct, and acknowledged its wrongfulness. The Court also notes Brown's prior disciplinary record: a previous suspended suspension in 1992 and two prior reprimands in 1989 and 1995. Therefore, keeping in mind that the main purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial CourtBoard of Overseers of the Bar v. Charles R. Bean, Esq.
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Docket No.: GCF 05-405
Issued by: Grievance Commission
Date: November 16, 2006
Respondent: Charles R. Bean, Esq.
Bar Number: 002805
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Withdrawal from Employment; Conduct During Representation: Standards of Care and Judgment
Report of Findings of Grievance Commission Panel B
On November 16, 2006, pursuant to due notice, Panel B of the Grievance Commission conducted a hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Charles R. Bean. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel on August 29, 2006.
At the proceeding, the Board was represented by Geoffrey S. Lewis, Esq., on behalf of Assistant Bar Counsel Aria eee, and Attorney Bean (Bean) was present and represented by Karen Kingsley, Esq. The complainant, Susan McDonald (McDonald) was present, pro se.
Agreed Facts
The parties stipulated to the following facts:
On November 16, 2005 Susan McDonald filed a complaint regarding the conduct of her former attorney, Charles R. Bean. In her complaint Ms. McDonald alleged neglect and dishonesty by Attorney Bean during Bean?s 2003 representation of McDonald in a proposed probate action requested by Ms. McDonald. She alleged that Bean provided no accounting of his work and that he refused to return her full retainer. By the time she filed her November 2005 complaint, Ms. McDonald still did not have her final $500.00 refunded.
In his answer to the complaint, Attorney Bean acknowledged his failure to pursue Ms. McDonald?s legal matter, yet he also partially blamed his client for what he characterized as ongoing changes to the proposed objectives. With that initial answer, Attorney Bean remitted Ms. McDonald?s $500.00.
Upon further reflection, Attorney Bean realized that it was ultimately his responsibility to pursue Ms. McDonald?s probate matter and to clarify the scope of his representation, given his uncertainty about McDonald?s objectives. Specifically, Attorney Bean has acknowledged that his failure to pursue Ms. McDonald?s conservatorship action forced her to seek new counsel to pursue such action. Attorney Bean?s neglect occurred during a time which was stressful and frustrating for Ms. McDonald as her mother?s health was deteriorating and was complicated by a lack of movement on the probate action. Attorney Bean also agrees that he failed to communicate with Ms. McDonald about his inability to perform the requested services and about his failure to return her retainer. See Maine Bar Rule 3.6(a)(1)(2)(3). Finally, Attorney Bean acknowledges that he failed to ensure the proper and timely delivery of his client?s retainer, as is required by Maine Bar Rule 3.5(a)(2).
Attorney Bean further agrees that he wholly failed to communicate with his client and though he did not intend to cause harm to her, he acknowledges that his failures caused distress to Ms. McDonald. As a result of these events, Attorney Bean has now apologized to Ms. McDonald. Attorney Bean assures the Grievance Commission that he has sought assistance from the MAP program to address his apparent avoidance behaviors so that he is able to properly respond, should a similar situation arise in his law practice.
Findings
Based upon the facts as stipulated by the parties, the Grievance Commission Panel finds that Attorney Bean violated provisions of the Maine Bar Rules. His failure to exercise due diligence delayed Ms. McDonald?s probate action and required her to hire successor counsel to pursue the action.Prior History
Attorney Bean has the following prior disciplinary record history on file with the Board of Overseers of the Bar:Sanction
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Bean agrees that he did in fact, violate the Code of Professional Responsibility, and given the assistance Attorney Bean has sought out from the MAP program, the Grievance Commission agrees that a reprimand is sufficient to ensure further compliance with the Maine Bar Rules.It is therefore ORDERED that Charles R. Bean, Esq. is hereby reprimanded for his violations of Maine Bar Rules 3.1(a); 3.5(a)(2),and 3.6(a)(1),(2),(3).
For the Grievance Commission
John H. Rich III, Esq., ChairJohn R. Bass II, Esq.
Susannah White
Board of Overseers of the Bar v. Charles R. Bean, Esq.
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Docket No.: GCF 03-233
Issued by: Grievance Commission
Date: May 19, 2004
Respondent: Charles R. Bean, Esq.
Bar Number: 002805
Order: Reprimand
Disposition/Conduct: Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice
Report of Findings of Panel C of the Grievance Commission
On May 19, 2004, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent Charles R. Bean (Bean), as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on March 8, 2004. Bar Counsel J. Scott Davis represented the Board, and Karen G. Kingsley, Esq., represented Bean. Both counsel and Mr. Bean were present at the hearing.
Although this matter was initially brought to Bar Counsel?s attention by the court (Gunther, J.), the ?factual complainants? were Attorneys Charles W. Hodsdon and Christopher D. Smith, neither of whom attended that hearing but both had been notified by Bar Counsel that the parties had stipulated to the following facts and proposed disposition of this matter by a reprimand, which the Panel now so finds and adopts as follows:
Conclusion and Sanction
For the Grievance Commission
David S. Abramson, Esq. ? Chair
Valerie Stanfill, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Ronald L. Bishop, Esq.
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Docket No.: BAR-00-6
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 7, 2001
Respondent: Ronald L. Bishop, Esq.
Bar Number: 000886
Order: Suspension
Disposition/Conduct: Illegal Conduct; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice
Disciplinary Decision and Order
This matter came before the Court on February 7, 2001 pursuant to an information filed by the Board of Overseers of the Bar. The Board was represented by Bar Counsel J. Scott Davis. The complainant, Bonnie Kerns, was present. Defendant Ronald L. Bishop, Esq. was present and appeared pro se.
Findings
The parties have stipulated and agreed to the following material facts:
On or about April 12, 1997 Bonnie Kerns (Kerns) was involved in an automobile accident in Turner, Maine. As a result, a personal injury action was filed in the Androscoggin County Superior Court in the matter of Ernest Charity, Jean Charity & Bonnie Kerns v. Robert Chiasson, Docket CV-97-266. Kerns hired Bishop to handle that matter for her, and he was also counsel for Kerns' husband, Mark Kerns, and for her parents, Ernest and Jean Charity, in that same action.
On October 26, 1998 that action was settled, with Chiasson agreeing to pay Kerns $30,000.00. From that amount, Bishop knew that Kerns had a medical payable balance totaling at least $9,266.34. He took an attorney fee of $5, 183.42, and the balance then received by Kerns from Bishop was the amount of $15,550.24.
It was agreed and understood between Kerns and Bishop that he would make payments of Kerns? entire outstanding medical bills. In fact, Bishop neglected those payments and failed to make timely payment of many of Kerns' medical bills.
As a result, in June 1999 Central Maine Medical Center (CMMC) directly notified Kerns that she had an outstanding medical balance of $3,109.70. That nonpayment was a complete surprise to Kerns since from his earlier comments she had understood and believed that Bishop had already made all such payments from her settlement monies. Approximately six weeks later, on July 14, 1999, Bishop finally paid CMMC that outstanding balance of $3,109.70, and also then paid $508.00 to Otolaryngology Associates. More than a year after the settlement check had been received by Bishop, i.e., as of February 25, 2000, medical bills for Kerns totaling approximately $1,051.00 still remained outstanding and unpaid by Bishop. With respect to those amounts outstanding in February, 2000, Kerns made at least two telephone calls to Bishop, which he failed to return. As late as March 1, 2000, Kerns received an additional call from a collection agency concerning outstanding amounts.
From the documents provided by Bishop in response to Bar Counsel's amended subpoena duces tecum, and as exemplified by Bishop's dilatory and grossly belated payment of Kerns' medical bills, he neglected his obligations to Kerns and also failed to properly segregate and account for clients' funds in his client escrow account. Bishop also failed to deliver to Kerns a balance of $3,317.64 (plus interest) owed her from the $30,000.00 settlement check.
CONCLUSIONS
The parties agree and the Court so finds that Bishop's conduct violated Maine Bar Rules M. Bar R. 3.2(f)(2)(3)(4); 3.6(a)(2)(3) and 3.6(e)(1)(2).
SANCTIONS
Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must now consider an appropriate sanction. In that regard, Bishop has admitted and acknowledged that he mishandled Kerns' case. Bishop was earlier reprimanded in 1999 for neglectful conduct concerning another client. That Grievance Commission Panel's Report stated that a sanction of suspension would be "appropriate if there were a recurrence of this kind of (neglectful) complaint" by Bishop. Therefore, keeping in mind that the main purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:
For the Court
Hon. Donald G. Alexander, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen C. Jordan, Esq.
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Docket No.: GCF 08-185; GCF 08-201
Issued by: Grievance Commission
Date: April 10, 2009
Respondent: Stephen C. Jordan, Esq.
Bar Number: 008745
Order: Reprimand
Disposition/Conduct: Illegal Conduct; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice; Confidentiality
Stipulated Report of Findings and Order of Panel Be of the Grievance Commission
M. Bar R. 7.1(e)(2)
M. Bar R. 7.1(e)(4)
On April 10, 2009 after due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E) concerning misconduct by the Respondent, Stephen C. Jordan, Esq. The disciplinary proceeding was commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 10, 2009. Prior to the disciplinary hearing, the parties submitted a Stipulated Report of Findings and Order for the Grievance Commission Panel's review and consideration. The Board provided the complainants, District Court Judge Peter Goranites and Attorney Elizabeth Stout with a draft copy of the Report. Present at the hearing were Attorney Jordan, his counsel James M. Bowie, Esq. and Bar Counsel J. Scott Davis, Esq. for the Board
Having reviewed the Stipulated Report of Findings and Order and heard comments of counsel, the Panel makes the following disposition:
Findings
Respondent Stephen C. Jordan, currently of North Berwick, County of York, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Jordan was admitted to the Maine bar in 1998 and is currently registered as an active practitioner, although he is not now practicing law or associated with any law firm.
On May 20, 2008 Judge Goranites filed a complaint against Attorney Jordan. Attorney Stout did the same on June 3, 2008. Both complaints referenced being filed pursuant to the reporting requirements of M. Bar R. 3.2(e)(1). That Bar Rule mandates the reporting by written complaint of an attorney's unprivileged knowledge of misconduct "...that raises a substantial question as to another lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects..." Each complaint involved Attorney Jordan's conduct both before and during his April 2008 contested divorce proceeding between his wife, Plaintiff Darcy Jordan and himself as the pro se Defendant. Judge Goranites presided at that hearing, and Attorney Stout served as the court's Guardian ad litem. By its Divorce Judgment dated May 20, 2008, the court made specific "Supplemental Findings" describing Attorney Jordan's misconduct. Those findings included the following descriptive facts:
Based on those "Supplemental Findings", Judge Goranites reported Attorney Jordan to Bar Counsel. The court also imposed immediate sanctions that directly affected and limited Attorney Jordan's trial conduct and abilities, i.e. by specifically suspending his ability to cross-examine Plaintiff Darcy Jordan, limiting his right to present evidence and requiring him to pay the remaining fees of the Guardian ad litem.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to our legal system and to the courts. Attorney Jordan agrees that his emotional upset from the divorce process and hearing was no excuse for his complete disregard for the sanctity of the confidential communications between his wife and her attorney concerning that contested divorce matter. Attorney Bowie has informed the Panel that he has personally received and reviewed written confirmation that Attorney Jordan undertook and received psychological counseling to deal with the pressures and stresses of his divorce and the litigation associated with the divorce. This counseling included the analysis of how these pressures and stresses were affecting his judgment and actions and the consequences of those actions, as well as how to better deal with those stresses. We also understand that Attorney Jordan is currently in the process of relocating outside of the State of Maine for the purpose of seeking employment unrelated to law practice. He has not practiced law since March of 2008 and has not sought, nor has he any current intention of returning to the active practice of law in the immediate future.
The panel notes that Attorney Jordan has taken responsibility for his offensive behavior and the upset it caused to his entire family, his wife's attorney, the court and the Guardian ad litem, among others. At this disciplinary proceeding, Attorney Jordan expressed his remorse for his inexcusable violations of the Code of Professional Responsibility. Specifically, he agreed that his conduct was in violation of the following portions of the Code of Professional Responsibility:
Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Bar Counsel confirmed that Attorney Jordan has no prior professional sanction record on file with the Board. The Panel has considered the facts that Attorney Jordan agrees that he did in fact violate the above-referenced sections of the Code of Professional Responsibility, that the violations appear to be isolated instances of improper conduct related to his divorce and that Attorney Jordan is not longer in active practice of law in the State of Maine.
The Panel accepts the proposed disposition and the waiver by Attorney Jordan of his right to file a Petition for Review as evidenced by his signature below.
Panel B hereby issues a Public Reprimand to Attorney Stephen C. Jordan pursuant to M. Bar R. 7.1(e)(3)(C),(4).
For the Parties
J. Scott Davis, Bar Counsel
James M. Bowie, Esq.
Stephen C. Jordan, Esq.
For the Grievance Commission
John R. Bass II, Esq., Chair
Acting for and by agreement of the Panel*
Maurice A. Libner, Esq.
Susannah White
*Prior to this hearing, all three (3) members of the Panel reviewed and approved this Report. By agreement of the parties, Panel Chair John R. Bass II appeared alone at the hearing and issued this disciplinary sanction for the Panel.
Board of Overseers of the Bar v. Peter A. Anderson
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Docket No.: BAR-00-2
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 23, 2000
Respondent: Peter A. Anderson
Bar Number: 001524
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
Order
Pending before the Court is Peter A. Anderson's petition pursuant to Maine Bar Rule 7.3(g)1 that he be permitted to resign from the Bar notwithstanding a pending disciplinary proceeding.
The applicable Bar Rule provides that an attorney tendering such a resignation must also tender an affidavit in accordance with the Rule. This Mr. Anderson has done. Mr. Anderson's affidavit has been filed with the Board, together with its recommendation, that Mr. Anderson's resignation be accepted.
The Court has read the affidavit, as well as Mr. Anderson's letter of resignation. After a hearing at which both Mr. Anderson and Bar Counsel were present and addressed the Court, the Court finds the conduct which Mr. Anderson admits to be conduct unworthy of an attorney and the Court, therefore, accepts the resignation from the Bar submitted by Peter A. Anderson dated April 5, 2000 to be effective upon the close of business as of June 2, 2000. His name is to be stricken from the list of practitioners who are permitted to practice law before the courts of the State of Maine effective June 3, 2000. Pursuant to M. Bar R. 7.3(g)(3), the affidavit submitted by Anderson with his letter is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. His affidavit may, however, be made public and be used by the Board of Overseers of the Bar, the Board's Grievance Commission and bar counsel, in response to any reinstatement petition Anderson may later file. Mr. Anderson is further ordered to fulfill the obligations encumbered upon him as an attorney who has resigned under Rule 7.3(g) as provided in Rule 7.3(i).
For the Court
Hon. Paul L. Rudman, Associate Justice ? Maine Supreme Judicial Court
Footnotes
1. Maine Bar Rule 7.3(g) provides:
(g) Resignations by Attorneys Under Disciplinary Investigation.
(1) An attorney who is the subject of an investigation under these rules may submit to the Board a letter of resignation, supported by an affidavit that:
(B) the attorney is aware that there is presently pending an investigation into allegations of misconduct, the nature of which allegations the attorney shall specifically set forth; and
(C) the attorney acknowledges that the material facts, or specified material portions of them, underlying the allegations are true.
(2) Upon receipt of such resignation, the Board shall file it, together with its recommendation thereon, with the Court, which after hearing shall enter such order as it deems appropriate.
(3) Any order accepting such resignation under this section shall be a matter of public record unless otherwise ordered by the Court; but the supporting affidavit required under the provisions of subsection (1) shall be impounded, whether or not such resignation is accepted, and shall not be made available for use in any other proceeding unless otherwise ordered by the Court.
M. Bar R 7.3(g)
Board of Overseers of the Bar v. Pamela J. Ames, Esq.
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Docket No.: GCF 05-340
Issued by: Grievance Commission
Date: July 9, 2007
Respondent: Pamela J. Ames, Esq.
Bar Number: 002229
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation
Report of Findings of Panel C of the Grievance Commission
M. Bar R. 7.1(e)(3)(C)
M. Bar R. 7.1(e)(4)
On July 9, 2007, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Pamela J. Ames, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 4, 2007.
At the July 9th proceeding, the Board was represented by Assistant Bar Counsel, Aria eee, and Attorney Ames was present, pro se. The complainant, Deputy District Attorney Megan L. Elam, had been provided with a copy of this Report (in its proposal form) but was not present.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
A. Violation of M. Bar Rule 3.1(a)
Attorney Ames' conduct violated M. Bar Rule 3.1(a). A review of all of the circumstances suggests that Attorney Ames committed "conduct unworthy of an attorney" by failing to ascertain and adhere to the rules of the Maine Correctional Center. Although understandably sympathetic to A.G.'s requests, Attorney Ames' decision to comply with those requests rather than comply with the MCC's rules demonstrated poor judgment resulting in conduct unworthy of an attorney.
B. Violation of M. Bar Rule 3.2(f)(3)
Attorney Ames violated M. Bar R. 3.2(f)(3) when she engaged in dishonest behavior while visiting A.G. at the Maine Correctional Center. The MCC staff who investigated Ames' conduct determined that she violated the facility's rules. Likewise, a reviewing panel of the Grievance Commission determined that Ames acted in violation of those rules and of acceptable standards of attorney conduct. Despite Attorney Ames' earlier belief that her actions were reasonable and permitted, the result of her conduct is unchanged. The violation of the Bar Rules is clear.Conclusion and Sanction
The Attorney's Oath (4 M.R.S.A. ? 806) mandates that all attorneys uphold their duties as officers of the court. Due to Attorney Ames' close relationship with A.G., she exercised unprofessional judgment and jeopardized her reputation within the bar. In the course of this proceeding, Attorney Ames has taken full responsibility for her actions and the subsequent consequences to both A. G. and herself. At the hearing, Attorney Ames was remorseful and apologized for her violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Ames agrees that she did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes. Attorney Ames has no history of discipline and the Panel finds that it is unlikely that she will repeat the same behavior in the future.
Therefore, the Panel accepts the agreement of the parties, including Attorney Ames' waiver of the right to file a petition for review, and concludes that the appropriate disposition of this case is a reprimand to Pamela J. Ames, Esq. as provided by M. Bar R. 7. 1 (e)(3)(C).
For the Parties
Aria eee, Assistant Bar Counsel
Pamela J. Ames, Esq.
For the Grievance Commission
David S. Abramson, Esq., Chair
Martha C. Gaythwaite, Esq.
Michael K. Knowles
Board of Overseers of the Bar v. Thomas R. Acker, Esq.
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Docket No.: BAR-05-08
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 23, 2005
Respondent: Thomas R. Acker, Esq.
Bar Number: 003381
Order: Temporary Suspension
Disposition/Conduct: Conduct Unworht of an Attorney; Conduct Prejudicial to the Administration of Justice; Responsibilities re: Law Related Services; Conflict of Interest; Preserving Identity of Funds and Property
Order
A case management conference and hearing on the Board's Motion for Temporary Suspension were conducted on December 22, 2005. Aria eee, Esq., appeared on behalf of the Board of Overseers of the Bar, and Thomas Acker, Esq., appeared on his own behalf.
For the reasons stated on the record in open court, it is hereby ORDERED as follows:
For the Court
Hon. Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. C. Peter Bos, Esq.
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Docket No.: GCF 07-276
Issued by: Grievance Commission
Date: January 2, 2009
Respondent: C. Peter Bos, Esq.
Bar Number: 002951
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment
Report of Findings
M. Bar R. 7.1(e)(2)
M. Bar R. 7.1(e)(3)(C)
On December 18, 2008, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, C. Peter Bos, Esq. The disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 15, 2008.
At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. The complainant, Michelle Miller, was also present. The Respondent and Ms. Miller testified before the Panel. The parties submitted Stipulations dated September 23, 2008. Additionally, the Panel accepted into evidence Board Exhibits Nos. 1-9 with the consent of the Respondent. Having reviewed the evidence and the relevant Bar Rules, the Panel finds the following facts and issues the following disposition:
Findings
Respondent C. Peter (Bos) of Bangor, County of Penobscot, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Bos was admitted to the Maine bar in 1984 and he is in private practice in a small law firm in Bangor.
On August 28, 2007 Michelle Miller filed a complaint against Attorney Bos arising out of her retention of Attorney Bos in connection with claims for personal injury due to an assault. She alleged that Attorney Bos failed to properly manage her civil case filed in the Penobscot County Superior Court in 2001, failed to notify her that the Superior Court dismissed the case in November 2002 and failed to advise her of the status of the second case filed in the District Court in 2006.
In both his response to the Board and his subsequent testimony at the hearing, Attorney Bos acknowledged his failure to properly monitor and manage Miller's cases. He agreed that he failed to ensure that Ms. Miller understood both his interest in and his ongoing concerns about prosecuting her case. Attorney Bos also accepted responsibility for his failure to appropriately calendar important deadlines in both of the Miller cases. Attorney Bos testified that until Ms. Miller notified him, he had been unaware that the Superior Court case had been dismissed. The second case in District Court was ultimately dismissed in September 2007 for failure to effect service. After receipt of Miller's complaint, Bos withdrew from his representation of her.
The Panel finds that Attorney Bos has violated the Code of Professional Responsibility and has therefore committed conduct "unworthy of an attorney" within the meaning of Rule 3.1(a). The Panel finds and Attorney Bos acknowledges that he failed to appropriately prosecute Ms. Miller's original case and that his delayed and inaccurate responses to Miller's requests for information left her without adequate means to discern the status of her legal matter. Attorney Bos has therefore violated his duties to uphold proper standards of care and judgment as outlined in M. Bar R. 3.6(a) (Standards of Care and Judgment).
Conclusion and Sanction
The Code of Professional Responsibility establishes the duties owed by an attorney to his or her client. Attorney Bos substantially deviated from his duties in the course of his professional services to Ms. Miller.
Attorney Bos has, however, accepted responsibility for his lapses. Bos has sought help with maintaining an accurate calendar designed to monitor all pending client matters every sixty (60) days. At the hearing, he expressed his remorse about the negative effects of his actions on Ms. Miller. Attorney Bos has no history of prior discipline, although the Panel notes that in 1992 and 2004, Bos was informally sanctioned with warnings for similar lapses.
M. Bar R.2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Bos agrees that he did in fact violate the Code of Professional Responsibility, a public reprimand serves those purposes.
Bar Counsel has proposed and Attorney Bos has accepted a condition that a monitor be appointed to review and assist Attorney Bos with managing his practice. The monitoring process shall be implemented for a one year period and the monitor shall evaluate all aspects of Attorney Bos' practice. Those aspects shall include but not be limited to client intake, client communications and disclosures between attorney and client and the monitoring of any personal issues, if they arise, that would affect Attorney Bos' ability to comply with his ethical duties.
Therefore, the Panel hereby issues a public reprimand to C. Peter Bos, Esq. as provided by M. Bar R. 7.1(e)(3)(C) with the additional condition that this matter shall remain pending for a period of one year during which period Attorney Bos shall submit his practice of law to monitoring by Marvin H. Glazier, Esq. of Bangor, Maine on the following terms:
For the Grievance Commission
John R. Bass II, Esq. ? Chair
Maurice A. Libner, Esq.
John R. Hutchins
Board of Overseers of the Bar v. Valeriano Diviacchi, Esq.
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Docket No.: BAR-07-06
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 16, 2007
Respondent: Valeriano Diviacchi, Esq.
Bar Number: 006975
Order: Reprimand Reciprocal Discipline
Disposition/Conduct:
Order
This Court has received a certified copy of the Order of Public Reprimand by the Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated June 21, 2007, publicly reprimanding Attorney Valeriano Diviacchi for his violations of the Supreme Court's Rules of Professional Conduct. Attorney Diviacchi has defaulted by failing to file any response to this Court's Order and Notice dated August 22, 2007 for him to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts, as requested by Maine's Board of Overseers of the Bar.
Therefore, based upon that default, this Court hereby ORDERS:
For the Court
Hon. Andrew M. Mead, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Christopher J. Whalley, Esq.
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Docket No.: BAR-08-09
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 10, 2008
Respondent: Christopher J. Whalley, Esq.
Bar Number: 007370
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment
Decision and Order
The Board of Overseers of the Bar initiated the above attorney disciplinary proceeding on October 16, 2008 and the Court scheduled this matter for hearing on November 25, 2008. At the hearing, this Court accepted a stipulation between Bar Counsel and the Respondent which disposed of this matter.
The Court accepts the following facts provided by the Stipulation of the parties: Ms. Graham retained Attorney Whalley to represent her in a 2007 divorce in Maine. While Attorney Whalley believed that Ms. Graham's departure date was in either November or December 2007, he failed to appreciate his client's urgency to remain on track for her impending leave. Either through his misunderstanding or misperception about Ms. Graham's constraints, the resulting breakdown in the attorney/client relationship led to Ms. Graham's termination of Attorney Whalley's services. Thereafter, Ms. Graham completed her divorce matter pro se and filed a complaint with the Board of Overseers. In that Attorney Whalley had completed his drafting of all proposed language for her divorce judgment, Ms. Graham was able to conclude her matter without any adverse impact to her case. Ultimately, Attorney Whalley acknowledges that this discrete failure of clear communications, which led to the breakdown of the attorney-client relationship, can be viewed as conduct lacking in the use of reasonable care and judgment. The Board of Overseers of the Bar agrees that the Board shall take no steps to initiate publication of this decision through any releases to the press.
Accordingly, it is hereby ORDERED that Christopher J. Whalley, Esq. is reprimanded for his violations of Maine Bar Rules 3.1(a); and 3.6(a). It is further ORDERED that the Board of Overseers of the Bar shall take no steps to initiate publication of this decision through any releases to the press.
For the Court
Hon. Warren M. Silver, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles R. Oestreicher, Esq.
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Docket No.: GCF 96-K-181
Issued by: Grievance Commission
Date: May 25, 2000
Respondent: Charles R. Oestreicher, Esq.
Bar Number: 001060
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Identifying Commencement, Continuation, and Termination of Representation
Report of Reprimand
M. Bar R. 7.1(e)
On May 25, 2000, pursuant to due notice, Panel B of the Grievance Commission conducted an attorney disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) reference the above matter. The Board of Overseers was represented by Bar Counsel J. Scott Davis. Respondent Charles R. Oestreicher was present and represented by Gene Libby, Esq. The complainant, Nicholas Hubby, was also present at that time. Although no testimonial witnesses were presented, Mr. Hubby, was provided the opportunity to make comment to the panel, and did so. Prior to that hearing, counsel for both parties stipulated as to the following facts, and the panel now so finds:
Findings of Fact
Conclusion
This panel concludes, and Respondent admits he engaged in a conflict of interest in this instance by failing to seek or obtain Hubby's informed written consent for his representation of Weare in the resale of the Farm. The panel agrees with the parties' agreed recommendation and concludes that the appropriate disposition of this complaint is that Charles R. Oestreicher, Esq. be and hereby is reprimanded for violating the Maine Bar Rules as established in the Findings of Fact set forth in this Report.
For the Grievance Commission
Susan E. Hunter, Esq., Chair
David R. Weiss, Esq.
Marvin C. Chaiken
Board of Overseers of the Bar v. Thomas J. Pelletier, Esq.
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Docket No.: GCF 99-26
Issued by: Grievance Commission
Date: July 27, 2000
Respondent: Thomas J. Pelletier, Esq.
Bar Number: 002651
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice
Report of Reprimand
M. Bar R. 7.1(e)(3)(C),(4)
On July 27, 2000, pursuant to due notice, Panel B of the Grievance Commission conducted an attorney disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) in the above matter. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis Respondent Thomas J. Pelletier, Esq., was present with his attorney, William B. Cote, Esq. The complainant, Ms. B., was notified of the parties' stipulations and proposed disposition.
Prior to commencement of the hearing, the parties agreed without objection to the admission by the Panel of Board Exhibits #1-#6. Although no testimony or witnesses were presented, Ms. B. was provided the opportunity to attend and make comment to the Panel, but did not choose to do so. Counsel then stipulated to the following facts which the Panel now adopts and so finds:
Conclusion
This Panel concludes and Respondent Pelletier admits that he engaged in conduct unworthy of an attorney by making inappropriate personal remarks to his client, Ms. B., who had just been through a family matter type court hearing. In such an attorney/client setting, he should have known and appreciated that his client would be affronted and confused as to his true allegiance to her legal problem.
As a result, the Panel thereby finds that Pelletier violated Maine Bar Rules: 3.1(a)(Conduct Unworthy of an Attorney); 3.2(f)(4)(Conduct that is Prejudicial to the Administration of Justice).
Accordingly, the Panel agrees with counsel's recommendation that the appropriate disposition of this complaint is that Thomas J. Pelletier, Esq. be and hereby is reprimanded for violating the cited Maine Bar Rules as established in the findings of fact set forth in this Report.
For the Grievance Commission
Susan E. Hunter, Esq., Chair
David R. Weiss, Esq.
Marvin C. Chaiken
Board of Overseers of the Bar v. Joseph D. Moser, Esq.
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Docket No.: GCF 07-027
Issued by: Grievance Commission
Date: February 15, 2008
Respondent: Joseph D. Moser, Esq.
Bar Number: 000625
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Disclosure of Interest; Commencement; Conflict of Interest
Report of Findings of Grievance Panel D
M. Bar R. 7.1(e)(3)(C)
M. Bar R. 7.1(e)(4)
On January 28 and February 15, 2008 pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Joseph D. Moser. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel on November 2, 2007.
At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Respondent (Attorney Moser) was present and represented by James M. Bowie, Esq. Joint Exhibits 1 and 2, the Board's exhibits marked Board Exh. 1-29, and Respondent's exhibits tabbed I through 27, were admitted without objection. The Panel heard testimony from Heather Frederick, Linden Frederick, Lee Woodward, Jr., Esq., and Attorney Moser.
On January 25, 2007, Heather and Linden Frederick filed a complaint regarding the conduct of Attorney Moser, their former attorney and neighbor. In their complaint, the Fredericks alleged conflict of interest, dishonesty, and conduct unbecoming of an attorney.
In his answer to the complaint, Attorney Moser acknowledged having worked with the local bank and the Fredericks during his 1992 representation of them. Attorney Moser also acknowledged his 2004 demand for significant financial compensation in exchange for a release of his property interests in the land constituting Fredericks' home site, then under contract to be sold. Attorney Moser denied that he had committed any violations of the Code of Professional Responsibility, and requested that the Board dismiss the complaint.
On January 28, 2008, the parties participated in a full day of evidentiary hearing. Thereafter, the Board and Attorney Moser elected to conclude the contested hearing and instead, negotiate a final proposed disposition of the bar complaint.
To that end, the parties stipulate, and the Panel so finds, the following:
1) Due to the potential conflict between him and the Fredericks, Attorney Moser should not have undertaken the 1992 representation of the Fredericks during the refinancing of their residential property. In doing so, Attorney Moser's personal interests became potentially adverse to the Fredericks due to a previous restrictive covenant in favor of Attorney Moser (which Attorney Moser had drafted in 1974) likely affecting the property.
2) Moreover, the evidence adduced at hearing detailed Attorney Moser's work as a title insurance agent during the time of the Fredericks' 1992 refinancing. As such, he had fiduciary responsibilities toward both the Fredericks and the title company. While there are obvious differences in the manner which Attorney Moser performed his duties (as compared to the credible testimony of the Frederick's 2004 counsel) it is clear that Moser's discharge of those duties resulted in further complications for the Fredericks' 2004 sale. Based upon Attorney Moser's testimony at the disciplinary hearing, it did not appear that during his representation of the Fredericks, Attorney Moser had complied with his fiduciary duties. Nor did it appear that Attorney Moser complied with M. Bar R. 3.4(a) requiring him to disclose the potential conflict to his then clients, the Fredericks and/or Camden National Bank.
3) Specifically, during the Fredericks' 2004 contract to sell their home, the title agents for the new buyers approached Attorney Moser in order to secure his release for the potential rights he held vis-?-vis the Fredericks' property. The Panel notes that it would have been reasonable, under the circumstances, for Respondent to agree to release his rights in the existing structure then comprising the Fredericks' home, given the fact that by 2004, that home had been in existence for nearly fourteen (14) years.
However, Attorney Moser did not immediately respond to any request that he release his potential property rights. He did not answer the Fredericks' repeated requests for information and he did not explain why there was a delay. Attorney Moser did refer the matter to his law partner, who ultimately negotiated with the Fredericks' counsel just before their scheduled real estate closing. Following those negotiations, the Fredericks paid Attorney Moser $20,000 to release any interest he still claimed in their Northport property.
4) At the very least, Attorney Moser should have agreed to exonerate the existing buildings on his former clients' property. Instead, for the first time, Attorney Moser vocalized an ownership interest in the Fredericks' property, and he refused to release that interest until the Fredericks paid for that release.
5) As the parties litigated the 2008 disciplinary proceeding, Attorney Moser came to realize his error. In sum, Attorney Moser agreed that in 1992, it was his responsibility to disclose the conflict to his clients (the Fredericks and the bank) and as a consequence, obtain their consent or decline the new representation. It became clear during the proceeding that Attorney Moser's failure to define the scope of his 1992 representation, either in an engagement letter or in his subsequent bills, resulted in further confusion about the work he performed for the Fredericks, the bank, and the title insurance carrier. See Maine Bar Rule 3.4(a), (b),(c).
6) Attorney Moser has also acknowledged that his failure in 2004 to immediately clarify what, if any, actions he intended to take with regard to releasing his interest created unnecessary stress and frustration for his former clients. See Maine Bar Rule 3.2(f)(4).
Based upon the above-outlined facts and the parties' proposal, the Panel finds that Attorney Moser violated Maine Bar Rules 3.1(a); 3.2(f)(4); 3.4(a)(l),(2) and 3.4(f)(l).
As a result of these events, Attorney Moser has reconsidered his actions and apologized to the Fredericks for the distress those actions caused them. Attorney Moser acknowledges that he must adhere to professional standards governing the practice of law. Attorney Moser agrees that he will participate in continuing legal education related to conflicts analysis, real estate law (including a drafting component), and fiduciary relationships.
Prior History
Attorney Moser has no prior disciplinary record on file with the Board of Overseers of the Bar.
Sanction
M. Bar R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Moser agrees that he did in fact, violate the Code of Professional Responsibility, the Panel agrees that a reprimand is sufficient to ensure Attorney Moser's further compliance with the Maine Bar Rules.
In addition, Attorney Moser shall, within twelve (12) months of the date of this Report, participate in one or more live CLE courses that address conflicts analysis, real estate law, and fiduciary relationships. Finally, Attorney Moser has agreed and is directed to pay the expert fees/expenses associated with Attorney Paul Mills' involvement in the Board's prosecution of this proceeding.
Therefore, the Panel accepts the agreement of the parties, including Attorney Moser's waiver of the right to file a petition for review, and concludes that the appropriate disposition of this case is a reprimand to Joseph D. Moser, Esq. as provided by M. Bar R. 7.1(e)(3)(C).
It is therefore ORDERED that Joseph D. Moser, Esq. is hereby reprimanded for his violations of Maine Bar Rules 3.1(a); 3.2(f)(4); 3.4(a)(1),(2) and 3.4(f)(1).
For the Grievance Commission
Benjamin Townsend, Esq., Chair
William E. Baghdoyan, Esq.
David Nyberg, Ph.D.
Board of Overseers of the Bar v. Randal E. Watkinson, Esq.
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Docket No.: GCF 07-67
Issued by: Grievance Commission
Date: May 27, 2008
Respondent: Randal E. Watkinson, Esq.
Bar Number: 000437
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment
Report of Findings
M. Bar R. 7.1(e)(2)
M. Bar R. 7.1(e)(4)
On May 27, 2008, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Randal E. Watkinson, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 9, 2008.
At the hearing, Attorney Watkinson appeared, pro se and the Board was represented by Assistant Bar Counsel, Aria Eee. The complainant, Gary Mills, had been provided with a copy of this Report (in its proposal form) and was present. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Findings
Respondent Randal E. Watkinson (Watkinson) of Rockland, County of Knox, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Watkinson was admitted to the Maine bar in 1975 and he is a member in good standing.
On March 1, 2007 Gary Mills filed a complaint with the Board against Attorney Watkinson alleging that Watkinson engaged in representation of Mills' father in an area of law in which Watkinson was not competent. Mills further alleged that Watkinson failed to exercise due diligence in obtaining the information necessary to provide such representation and that Watkinson subsequently made a material misrepresentation during settlement negotiations of a probate matter involving Mills and his brother.
On March 26, 2007, Attorney Watkinson filed his response with the Board, providing background information on his involvement with the family leading up to the filing of Mills' complaint.
On August 7, 2007 the complaint and responses were reviewed by a Panel of the Grievance Commission. The panel found that probable cause existed that Attorney Watkinson had engaged in misconduct subject to sanction under the Bar Rules. Pursuant to M. Bar R. 7.1 (d)(5) the panel directed Bar Counsel to prepare and present a formal Disciplinary Petition for disciplinary action before a different panel of the Grievance Commission.
Prior to the Board's filing this Petition, Assistant Bar Counsel and Attorney Watkinson generally agreed that Watkinson engaged in misconduct, having violated specific portions of the Code of Professional Responsibility for which he should receive a reprimand.
To that end, Attorney Watkinson acknowledges that he improperly failed to confirm the accuracy of the allegations in a Knox County Superior Court lawsuit he initiated in 2000 on behalf of Mills' father. Specifically, the above referenced violations implicated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.6(a)(1)(2) (requiring a lawyer to be adequately prepared and competent while performing legal services).
Additionally, Attorney Watkinson committed conduct unworthy of an attorney when he advised the complainant, Gary Mills and Watkinson's client, Glen Mills (brothers and heirs to their father's estate) to withhold the probate of the Mills' grandmother's Will to avoid the State of Maine's estate recovery efforts. As a result of his unsound advice, Attorney Watkinson engaged in conduct prejudicial to the administration of justice. See M. Bar R. 3.2(1)(4). Once he was informed by Mills' attorney of his error, Attorney Watkinson filed the Will with the Waldo County Probate Court.
Gary Mills filed a motion in 2006 to remove his brother as Personal Representative of their father's estate. During a recess in the November 2006 hearing on the motion, Attorney Watkinson and the Attorney for Gary Mills discussed a possible settlement. In the course of those discussions, Attorney Watkinson relayed his understanding that the state was not intending to pursue a claim against the Mills Estate. Since Gary Mills relied on Watkinson's statements he then agreed to become Trustee of a trust created under his father?s Will.
Consequently in May 2007, the State of Maine did in fact pursue a $163,000 claim against the Mills estate.1 Prior to the states filing Gary Mills sold the family home at a sale price significantly less than the State's subsequent claim. Ultimately, the Mills estate and the State of Maine settled the recovery action and in February 2008 the two parties stipulated to a dismissal of the same. Reviewing the totality of those circumstances, the Grievance Commission finds that Attorney Watkinson's flawed consideration of whether the State would pursue the recovery action resulted again in conduct prejudicial to the administration of justice.
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Watkinson's above-outlined failures, Mr. Mills incurred additional expenses, frustration, time and energy.
The panel notes that Attorney Watkinson has taken responsibility for his actions and the unfair result to Mr. Mills and the Mills estate. During this hearing, Attorney Watkinson offered an apology to Mr. Mills for his violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Watkinson agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Watkinson's waiver of the right to file a Petition for review, and concludes that the appropriate disposition of this case is a reprimand to Randal E. Watkinson, Esq. as provided by M. Bar R. 7.1(e)(3)(C).
For the Grievance Commission
Victoria Powers, Esq., Chair
John C. Hunt, Esq.
Joseph R. Reisert, Ph.D.
Footnotes
1This is so even though Watkinson had given differing reports about how he had acquired the information about the states claim.
Board of Overseers of the Bar v. Mark Kierstead, Esq.
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Docket No.: GCF-99-37
Issued by: Grievance Commission
Date: July 28, 2000
Respondent: Mark Kierstead, Esq.
Bar Number: 001895
Order: Reprimand
Disposition/Conduct: Neglect of a Client's Matter; Failure to have a Written Contingent Fee Agreement
Decision
This matter was heard by Panel E of the Grievance Commission on the petition of the Board of Overseers against Mark Kierstead, Esq., of Waterville, Maine. On June 6, 2000, a public hearing was conducted in accordance with Maine Bar Rule 7.1(e)(2) to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information against Mr. Kierstead arising out of his representation of Laura Pelletier, including his failure to account timely and turnover to Ms. Pelletier the proceeds of litigation held by him on her behalf, and his subsequent conduct in the course of litigation in which he and Ms. Pelletier were parties. The petition alleges numerous violations of the Maine Bar Rules including Maine Bar Rule 3.1(a) (conduct unworthy of an attorney); 3.2 (conduct involving dishonesty and which is prejudicial to the administration of justice); 3.3(a) (excessive fees); 3.5 (withdrawal from employment); 3.6 (failure to employ reasonable care and skill); 3.6(e) (failure to maintain complete records of all funds and prompt delivery to the client ); 3.6(f) (communicating with adverse party); and 3.7 (employment of legal process for delay harassment or malicious injury).
At the hearing, no objection was made to the composition of the panel. The Board of Overseers was represented by Assistant Bar Counsel, Geoffrey Welsh. Mr. Kierstead appeared pro se. Mr. Welsh examined Mr. Kierstead and Laura Pelletier. Mr. Kierstead also testified on his own behalf. Both parties offered written evidence in the form of exhibits. All exhibits were admitted into evidence without objection.
Based upon the evidence, the Panel finds that Mr. Kierstead violated the Rules of Professional Responsibility in several aspects of his representation of Ms. Pelletier. Mr. Kierstead filed no answer to the petition. Pursuant to Maine Bar Rule 7.1(e)(1), the facts set forth in the petition and the misconduct alleged in that petition are taken as admitted. At the hearing, Mr. Kierstead urged the Panel to hear his evidence. He argued that his failure to answer the petition was an oversight and that he had intended to dispute certain aspects of the petition. Mr. Kierstead identified those portions of the petition he wished to dispute. Mr. Kierstead was permitted to present evidence with respect to whether his communications with his client were deceitful, whether he exercised reasonable care and skill in his representation of Ms. Pelletier, and whether his conduct in subsequent litigation violated the rules because these allegations were considered by the Panel to bear upon the question of sanctions. Mr. Kierstead was, thus, permitted to proceed on a limited basis in defense of the foregoing allegations.
The undisputed facts are these. Laura Pelletier engaged Mark Kierstead in March of 1997 to prosecute a personal injury claim, initially commenced on her behalf by the Bangor firm of Leen & Emery. Ms. Pelletier discharged Leen & Emery in hopes that Kierstead could obtain a more valuable settlement of her claims. Leen & Emery had contracted with Ms. Pelletier for a contingent fee, consistent with Maine Bar Rule 8(d), which contained a provision for payment of one-third (⅓) of the highest settlement offer obtained by the firm from the proceeds of the ultimate recovery in the event Ms. Pelletier discharged Leen & Emery prior to recovery. On March 24, 1997, David Leen wrote to Kierstead and advised him of the firm's claim to a portion of any recovery of Ms. Pelletier's claim and its willingness to accept a compromise sum of $3,000.00. On April 30, 1997, Leen wrote again requesting payment of $3,000.00 from any recovery obtained by Kierstead on Pelletier's behalf. On June 17, 1997, Kierstead made that commitment.
Kierstead settled Ms. Pelletier's claim for a total sum of $32,500.00, significantly higher than the highest offer obtained by Leen & Emery. Kierstead disbursed to Pelletier the sum of $13,333.33 on November 25, 1997 and another $5,000.00 on or about December 5, 1997. Mr. Kierstead calculated his fee as one-third (⅓) of the net recovery, after deduction of the fee due to Leen & Emery. Respondent produced no written contingent fee agreement in compliance with Maine Bar Rule 8. The panel finds that there was none.1
David Leen, having been informed of the settlement, requested payment to Leen & Emery on December 5, 1997. Mr. Kierstead's response (or lack thereof) is the basis of the petition.
The Respondent did not remit to Leen & Emery until April 6, 1998, more than four months following his receipt of settlement funds. In the interim, Leen & Emery commenced a civil action against both the Respondent and Ms. Pelletier for all sums due under their contingent fee agreement. Respondent, thus, failed in his undertaking to hold his client harmless from liability to Leen & Emery. Respondent offered no excuse other than the press of other business interests and a brief, albeit arduous, separation from his law office on account of the ice storm of January 1998.
Once Leen & Emery commenced suit, Mr. Kierstead faced two dilemmas. He clearly had authority to settle the claim for the compromise sum. However, Leen & Emery pressed for a larger sum. In addition, Ms. Pelletier cross-claimed and refused to dismiss without satisfaction of the Leen & Emery claim, plus her damages arising out of the litigation. As a consequence, further delay and expense ensued all of which could have been avoided had Mr. Kierstead simply paid Leen & Emery as he had agreed. These dilemmas were of Respondent's own making and avail him of nothing in terms of mitigation.
The Board characterizes this case as egregious. Indeed, Respondent's conduct should not be excused. Respondent ignored too many warnings from his fellow attorneys and neglected too many demands from his client. In fashioning an appropriate sanction we look, first to the underlying misconduct. We note that the essence of the complaint against Respondent is that he delayed payment to Leen & Emery for approximately four months. The reasons for that delay remain unclear. The Panel heard no evidence that Ms. Pelletier's money was misappropriated by Respondent. Respondent testified that the money never left his trust account. Moreover, the Panel cannot conclude on the evidence, that Respondent misled either his client or Leen & Emery. He simply ignored them for an unconscionable period of time. The Respondent violated the rules due to delay, as opposed to deceit. He has made his client whole. We believe that the absence of deceit and the fact that restitution has been made is what distinguishes this case from a case which might otherwise warrant a finding of probable cause for suspension or disbarment.
On the other hand, a dismissal, even with a warning would require the Panel to overlook the sum of numerous other violations of the rules including Mr. Kierstead's failure to comply with Rule 8 and his lack of attention in his obligations to account. The harm done to Ms. Pelletier was not minor. She put too much expense and considerable anxiety before Mr. Kierstead was coerced into meeting his obligations to her. Mark Kierstead was the agent of Ms. Pelletier, owing to her the fiduciary duties of due care, loyalty and obedience. He failed in the performance of each of those duties. He failed to attend to the simplest of undertakings. He neglected the bill of Leen & Emery. He failed to timely respond to his client's requests for assistance in resolving the matter and her subsequent demands for performance. He testified that his personal business interests diverted his attention from client matters and, in so doing, concedes his violation of the Rules of Professional Responsibility.
Accordingly, Mark Kierstead, Esq. is hereby reprimanded for his inattention to matters entrusted to him in violation of the Rules of Professional Responsibility in connection with his representation of Laura Pelletier.
For the Grievance Commission
Stephen G. Morrell, Esq.
Charles W. Smith, Jr., Esq. .
Harriet Dawson
Footnotes
1Prior to this hearing, a panel of the Fee Arbitration Commission decided the amount of a reasonable fee for Mr. Kierstead's services on Ms. Pelletier's behalf. The parties acknowledged that Mr. Kierstead had since remitted to Ms. Pelletier in compliance with that decision.
Board of Overseers of the Bar v. Calvin E. True, Esq.
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Docket No.: BAR 08-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 2, 2008
Respondent: Calvin E. True, Esq.
Bar Number: 000787
Order: Suspension
Disposition/Conduct: Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Simultaneous Representation
Disciplinary Order
M. Bar R. 7.2(b)
Background
In this matter, Bar Counsel J. Scott Davis represented the Board of Overseers of the Bar, and Attorney Peter J. DeTroy represented Defendant Calvin E. True. On June 2, 2008, the Court approved counsel's Stipulated Waiver of Grievance Commission Proceedings. As a result, the Court has jurisdiction to proceed directly in this disciplinary proceeding under M. Bar R. 7.2(b) and issue a Disciplinary Order absent any earlier Grievance Commission hearing under M. Bar R. 7.1(e). At the hearing held in this matter on December 2, 2008, Attorney True expressed his remorse and apologized for his misconduct, confirmed that he waives his right to appeal this Order to the Law Court and also agreed that the sanctions imposed by this Order are effective on the date of this Order.
Stipulations
Counsel for the parties have stipulated to the following material facts now found and adopted by the Court.
At all times relevant hereto, Attorney True has been an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. He has practiced law in the estate-planning field with the law firm of Eaton Peabody in Bangor since 1972. By way of Attorney DeTroy's detailed filing letter of March 15, 2006, with several attached exhibits, Attorney True self-reported to Bar Counsel Davis his misconduct in three separate instances as summarized below.
The December 2004 Real Estate Transaction
On or about December 23, 2004, Attorney True represented the sellers in a substantial real estate transaction with a value of approximately $25,000,000. The land involved in that transaction was approximately 54,000 acres, all or most of which was timberland.
There were three sellers represented by Attorney True: the Estate of Doe, Mr. A, and Mr. B, the latter two being the beneficiaries of the Estate of Doe. The Estate of Doe held a substantial portion of the property sold in the transaction.
An accelerating force during the transaction was a new law regulating the use of timberlands. That law modified the allowable use of timberlands acquired after January 1, 2005, making the property more valuable to the buyers if it were purchased before the law's effective date. Therefore, the parties' contract required that the sale close before December 30, 2004. Accordingly, the closing was scheduled for December 23, 2004.
On December 22, 2004, Attorney True presented his clients with a bill for legal services in the amount of $175,000. Of that amount, $115,000 was designated to cover the legal services related to the sale of the timberland interests and the remaining $60,000 was identified to cover future estate expenses. There was no written fee agreement between Attorney True and his client sellers.
Attorney True agrees that a calculation of the hours the law firm's professionals spent in this timberlands transaction multiplied by their respective hourly rates totaled approximately $28,000. The firm's invoices to the clients reflected the actual services provided, but did not contain a breakdown of the hours spent or the hourly rates. Attorney True understood that the factors set forth in title 18-A M.R.S. ? 3-721 of the Maine Probate Code would provide the basis for the fee ultimately charged to the clients.
Before the closing, Mr. A and Mr. B had agreed that each of the three sellers would bear that portion of Attorney True's fees and expenses that mirrored that seller's proportionate payment from the sale of the timberlands. Mr. A's pro-rata share of the $115,000 fee billed in December 2004 was $42,818. The Estate of Doe's pro-rata share of the $115,000 fee billed in December was $40,326.88. Mr. B's pro-rata share of the $115,000 fee billed in December was $31,855.12.
Although there was no written fee agreement for the sale of the timberlands, the billing pattern established during the firm's prior handling of the Estate of Doe (of which Mr. A was a personal representative and Mr. B was a beneficiary) involved monthly invoices that did not specify the time and billing rates of the various Eaton Peabody personnel involved in the representation. Before December 2004 the invoices did predominantly reflect the time and rate of the respective timekeepers.
In early 2005, Mr. A expressed concern to Attorney True that the fees billed to him were too high. He objected both to the fees billed to the Estate of Doe and to the fees billed him individually. Although the firm's accounting system did not allow him to do so, Attorney True ultimately agreed with Mr. A's request to provide separate invoices to reflect the fees attributable to Mr. A, Mr. B, and the Estate.
The document that Attorney True prepared and dated March 4, 2005, purported to be an invoice to the Estate of Doe. It was created by Attorney True in a word processing program outside the firm's normal billing protocol, i.e. it was not an invoice generated by computer automation from contemporaneously maintained time and billing records of the firm's employees. Attorney True agrees that Mr. A could reasonably have believed that invoice was generated by the firm's bookkeeping records when, in fact, it was not. Attorney True further admits that invoice also contained entries that did not track the specific charges in the prior firm invoices, but rather reflected his general recollection of the nature of the services. He did not make any affirmative inquiry of the firm's accounting department to determine if separate invoices could have been created.
Mr. A requested a more detailed explanation of the legal services for which Attorney True had billed him. On May 16, 2005, Attorney True responded to Mr. A's request by generating a memo that identified the scope of work completed, included a description of the hours spent and listed the billing rate of various firm personnel who had worked on the matter. Attorney True agrees that in that memo he misrepresented to Mr. A the amount of total time and hourly rates of some of the involved professionals from his law firm.
As he did in his self-report filing with the Board, Attorney True admits that his May 16, 2005, memo included several misrepresentations including: (1) the billing rates of several attorneys; (2) the time he had actually devoted to the matter; and (3) the amount of time a firm associate had actually devoted to the matter. In addition, Attorney True's memo also understated the time another firm associate had devoted to the matter.
The actual billable amount of time spent by the firm on behalf of Mr. A, Mr. B, and the Estate of Doe collectively-based upon the contemporaneous entries of firm staff into a time and billing data base-totaled $27,341.50. Attorney True's May 16, 2005, memo represented that the law firm's records for the billable time for the timberlands transaction on behalf of Mr. A, Mr. B, and the Estate of Doe was collectively $35,892.50. In sum, the memo inaccurately overstated the time and hourly rate by approximately $8500.
Attorney True initially admitted his misconduct to his firm in June 2005. At that time, the Co-Personal Representative of the Estate of Doe asked one of Attorney True's partners at Eaton Peabody for information to support the bills that had been rendered to the Estate. The information requested included the bills issued to the Estate for the timberlands transaction as well as the firm's billing records relating to the law firm's administration of the Doe Estate. When Attorney True was approached by that partner, he acknowledged his misconduct to his firm.
The billing issues were ultimately resolved when the firm reimbursed Mr. A and the Estate of Doe for all sums they paid in excess of billing hours and attorney's hourly rates. Mr. B advised the firm that it was his position that the amount of the bill charged him was appropriate, recognizing the factors set out in title 18-A. M.R.S. ? 3-721. He declined any reduction of the sums he had been billed by the firm.
By preparing and presenting inaccurate information to a client concerning the billing information, Attorney True agrees and the Court finds that he violated M. Bar R. 3.2(f)(3).
Misuse of Client Funds Held in Trust
Prior to that timberlands closing, specifically on December 6, 2004, the buyers submitted a $1,000,000 earnest money deposit on the timberlands parcel. That deposit was inadvertently placed by the Eaton Peabody accounting department into a separate account at the firm and therefore was not available to be distributed at the timberlands closing on December 23, 2004.
The "Trust Report" and narrative provided by Attorney True to Bar Counsel in his self-report confirm that on December 23, 2004, he directed the firm's accounting department to issue a $2500 check to cash to provide for distributions of cash bonuses to five of the firm's staff members who had worked on the sale of the timberlands. Attorney True also paid a law firm bill for legal services rendered to one of his sons totaling $1200. He also paid the November invoice of $11,530 for legal services to the Estate without authorization. Attorney True made these separate payments from the firm's trust account. While he had understood those payments were made from funds for the firm?s legal fees in the timberlands transaction which had been deposited in its operating account, Attorney True agrees that his having directed such payments from the firm's trust account without the clients' consent was inconsistent with the requirements of M. Bar R. 3.6(e) (Preserving Identity of Funds and Property).
Conflict of Interest
Attorney True represented Mrs. C in various legal matters starting in 1994. A prior stroke had left her physically incapacitated, but at all times she retained her mental acuity. In 1999 Mrs. C's son died and she made Attorney True her agent under a power-of-attorney that included the authority to handle her finances. Payment of her monthly expenses was accomplished through a trust she had established with a local bank. In 2000 Attorney True provided estate-planning services to Mrs. C. In 2001, her physical deterioration led to her decision to enter an assisted living facility. At her request, Attorney True monitored Mrs. C's homestead, to which she hoped to return. Although she briefly returned on occasion, she was never able to resume her residence there.
Soon after Mrs. C's departure from her home, Attorney True proposed the possibility of a house sitting arrangement to defray costs. He acknowledges he advised her that his son and his son's fianc?e might be interested in such an arrangement. Mrs. C spoke separately to his son and son's fianc?e and reached a satisfactory arrangement for the lease of her home. As a result, in August 2001 Attorney True prepared a lease agreement between the parties at Mrs. C's request. Attorney True suggested that Mrs. C seek the assistance of separate legal counsel if she had any concerns, but acknowledges this advice was not memorialized by a written consent. In May 2005, Mrs. C entered a different nursing home and informed Attorney True that she no longer believed she would return home. At that time Attorney True's son and daughter-in-law wrote to Mrs. C expressing an interest in purchasing the home. Mr. True reviewed and edited that letter. Mrs. C and Attorney True's son and daughter-in-law then entered into direct discussions and ultimately agreed that the son and daughter-in-law would have an option to purchase Mrs. C's home for a given price, either during her lifetime should she choose to sell it, or from her estate after her death. The option price proposed by the son was $145,000. An estimate of value by a respected local broker Mrs. C had recently arranged for concluded the fair market value was $155,000. Although all substantive terms were negotiated directly by the parties, Attorney True drafted the option agreement that provided for a sales price, based on various contingencies, of $145,000 to $155,000.
Attorney True notified Mrs. C that he was unable to represent her in the proposed contract between her and his son. Attorney True did not refer her to separate counsel. He did suggest she consult with a close friend whose son-in-law owned a large real estate firm and who provided her with the estimate of value. Attorney True did meet and discuss with Mrs. C the option contract and billed her on a single occasion for discussions relating to that contract and to unrelated matters.
The proposed sale ultimately was not consummated.
Attorney True agrees that by assisting in the preparation of the lease and purchase agreement he created a conflict of interest without informed written consent as required by M. Bar R. 3.4(c)(2) (Simultaneous Representation).
Order of Sanctions
It is agreed by the parties and now so found by the Court that Attorney True engaged in professional misconduct. Attorney True engaged in misrepresentations and misstatements to a client regarding the firm's bill directed client funds held in trust to be used for non-client purposes, and represented a client in circumstances where a conflict of interest existed and in which he failed to obtain the requisite written consent.
Attorney True's misconduct violated specific portions of the Code of Professional Responsibility as noted above, for which Attorney True is now disciplined and/or sanctioned as follows:
For the Court
Hon. Ellen A. Gorman, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Gordon Ayer, Esq.
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Docket No.: BAR-07-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 17, 2008
Respondent: Gordon Ayer, Esq.
Bar Number: 001863
Order: Reprimand
Disposition/Conduct: Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of justice; Improper Concealment, Statement or Evidence; Adversary Conduct
Order and Sanction
The complicated and protracted history of this case began in October 1998 with a complaint to the Board of Bar Overseers (Board) against Attorney Gordon Ayer. The complainant, Margaret B. Spenlinhauer, alleged that, in the course of his representation of her husband, John E. Spenlinhauer Ill, during the litigation of their Massachusetts divorce, Attorney Ayer had violated multiple bar rules and should be disciplined. At Attorney Ayer's request, the investigation of his alleged misconduct was stayed for approximately seven years while the Spenlinhauers' divorce was pending. 1
This complaint, along with a second complaint by Ms. Spenlinhauer were reviewed and litigated in Maine between 2005 and 2007. After Attorney Ayer and bar counsel agreed to waive further hearings before the Board's Grievance Commission, this Court accepted jurisdiction over the matter and now addresses three issues: (1) whether Ms. Spenlinhauer can intervene in this disciplinary proceeding; (2) whether Attorney Ayer violated the Maine Bar Rules; and (3) if Attorney Ayer did violate any rules, how he should be sanctioned.
Procedural History2
Attorney-Ayer first responded to Ms. Spenlinhauer's 1998 complaint in September 2005. In October 2005, Ms. Spenlinhauer filed a supplemental complaint with the Board. Although neither Attorney Ayer nor his counsel received a copy of that second filing from the Board at any time in 2005, when the Grievance Commission undertook its evaluation of the case in late 2005, it considered the assertions made by Ms. Spenlinhauer in 2005, as well as those made in 1998. Based upon its review of Ms. Spenlinhauer's complaints and Attorney Ayer's response to the first complaint, the Grievance Commission panel found probable cause to believe that Attorney Ayer had engaged in misconduct in April 1998, based on the actions he took after discovering that his client had been giving him false information. The panel found that Attorney Ayer's handling of this information warranted sanction under the Maine Bar Rules. The screening panel directed bar counsel to prepare a disciplinary petition limited to those actions in 1998 and to present it to a different panel of the Grievance Commission.
On August 13, 2007, that second panel presided over a stipulated disciplinary hearing during which the Board and Attorney Ayer proposed a negotiated settlement. Ms. Spenlinhauer attended that hearing and made a lengthy presentation, expressing her dissatisfaction with and opposition to the proposed settlement. In September 2007, the panel informed the Board, Attorney Ayer, and Ms. Spenlinhauer that it had not accepted the proposed settlement. The panel set the matter for a supplementary hearing.
At that time, Attorney Ayer elected to forego the supplementary hearing and requested that bar counsel consent to a stipulated waiver of further Grievance Commission proceedings, in order to proceed directly to this Court for a de novo hearing on the disciplinary complaint. Ms. Spenlinhauer notified the Board of her objection to this available procedural process. After consideration of Attorney Ayer's request, bar counsel consented, and the parties filed a request that the Court allow them to waive further Commission proceedings. The Court granted that joint request on December 19, 2007, and accepted jurisdiction over this matter.
On July 11, 2008, Bar Counsel filed an Information against Attorney Ayer, pursuant to M. Bar R. 7.2(b), alleging that he had violated a series of bar rules after learning in April 1998 that his client had been misrepresenting the characterization of a bank account during the course of the divorce proceedings. Attorney Ayer responded to the Information on August 15, 2008. The Court met with counsel on September 3, 2008, at which time counsel indicated that Attorney Ayer recognized that his actions would support a determination that he violated the Maine Bar Rules. Counsel and the Court then established a procedural schedule. In accordance with that schedule, the Court ordered counsel to file a stipulated factual record and position letters by October 6, 2008. The Court's order also indicated that no argument would be scheduled if the written submissions were sufficient to permit the Court to determine the case.
On October 7, 2008, Ms. Spenlinhauer filed a motion to intervene in the court proceeding. In her motion, and in the submissions she filed in support of that motion, Ms. Spenlinhauer asserts that both the Board of Bar Overseers and bar counsel have chosen to ignore most of her complaints concerning Attorney Ayer. She argues that she should be allowed to intervene in order to correct inaccurate assertions and to bring certain matters before the Court that otherwise would not be presented. Additionally, Ms. Spenlinhauer demands that the Court dismiss this proceeding and order the Board of Bar Overseers to retain independent counsel to undertake a review of all of the complaints. Both Attorney Ayer and bar counsel filed objections to Ms. Spenlinhauer's motion to intervene. For the reasons explained below, the Court denies her motion.
Findings of Fact
Conclusions
A. Procedural Issues
This matter is before the Court pursuant to M. Bar R. 7.2(b), by agreement of the parties to this proceeding. The parties are the Board of Overseers of the Bar and Attorney Ayer. The Maine Bar Rules permits them, as parties to the proceeding, to agree to bypass the complete Grievance Commission process and give jurisdiction to the Court. This procedural decision can be made at the commencement of the action, see M. Bar R. 7.2(b)(7), or, as is the case here, at some point in the middle, see M. Bar R. 7.2(b)(7).
Although Ms. Spenlinhauer's complaints against Attorney Ayer initiated this action, she is not a party to this proceeding. See M. Bar R. 7.2(b)(2) ("The Board shall be treated as the plaintiff and the respondent attorney as the defendant ...."), As a non-party, Ms. Spenlinhauer's role is important, but limited. The Board's decision to consent to Attorney Ayer's request that the matter be referred to the Court was the Board's alone to make, based upon whatever information it deemed important.
B. Motion to Intervene
As noted above, Ms. Spenlinhauer filed a motion to intervene in this proceeding in order to correct what she alleges are false assertions and to bring forth issues that she deems important and that the parties have not addressed. In her submissions, however, she failed to provide any citation to a rule, a statute, or even a case that might support her position. The Board of Overseers of the Bar, comprising six attorney members and three lay members, is charged with enforcing attorney compliance with the Maine Bar Rules. To carry out that duty pursuant to the Rules, the Board retains bar counsel to act as its investigator and prosecutor on disciplinary matters, and creates a Grievance Commission to conduct hearings on those matters presented to it by bar counsel.
Contrary to Ms. Spenlinhauer's assertions, all of her complaints against Attorney Ayer were investigated by bar counsel and were considered by a panel of the Grievance Commission. In fact, the 2005 complaint was evaluated without any counter arguments from Attorney Ayer. After review, the panel determined that not all of her allegations warranted additional disciplinary action. Those allegations that were found by the panel to warrant disciplinary action are now before the Court.
As the person who brought Attorney Ayer's actions to the attention of the Board of Bar Overseers, Ms. Spenlinhauer's position is analogous to that of a named victim in a criminal proceeding. While the Court appreciates that she is not satisfied with the reviewing panel's judgment of her complaints, it is nonetheless within the Board's discretion to decide which allegations to prosecute. Ms. Spenlinhauer's motion to intervene is denied.
C. Attorney Ayer's Actions
As the recitation of the facts above indicates, by the time Attorney Ayer filed his responses to Ms. Spenlinhauer's motion for reconsideration, he knew that the information previously provided to him by his client about the status of the -9 account was false. He also knew that because his client had provided that same false information to Ms. Spenlinhauer and to the arbitrator who had handled their divorce, Ms. Spenlinhauer's motion to reopen and recommit the matter to arbitration had merit.
By filing the altered-but still misleading-affidavits, and by failing to immediately notify the court of his client's falsehood in this clear case of a prior and attempted continuing fraud on the Court, Attorney Ayer violated M. Bar R. 3.2(f)(3), 3.2(f)(4), 3.7(b), and 3.7(e)(1)(i). The Court notes, however, that during the hearing on Ms. Spenlinhauer's motion two days later, Attorney Ayer did notify opposing counsel and the court of the true status of the -9 account. In so doing, he ended the fraud perpetrated by his client.
The question, then, is how the Court should respond to Attorney Ayer's violation of the Maine Bar Rules after learning of his client's misrepresentation of a material fact.
Sanction
It is agreed by the parties and now so found by the Court that Attorney Ayer engaged in professional misconduct. He engaged in conduct, although short-lived, that was effectively, a misrepresentation, resulting in conduct prejudicial to the administration of justice. He did not with sufficient promptitude correct information but rather participated in the continuation of false evidence, which left unc1arified and misleading pleadings before the Court. Attorney Ayer's actions violated specific portions of the Code of Professional Responsibility as noted above. The Court notes that Attorney Ayer did, after a short delay, report the truth about the -9 account, and has accepted responsibility for his actions as part of this proceeding. Based upon Attorney Ayer's misconduct, and for the reasons explained in this Order, the Court disciplines and/or sanctions Attorney Ayer by issuing him a public reprimand.
Sanction
For violating M. Bar R. 3.2(f)(3), 3.2(f)(4), 3.7(b), and 3.7(e)(1)(i), Attorney Ayer is reprimanded.
For the Court
Hon. Ellen A. Gorman, Associate Justice ? Maine Supreme Judicial Court
Footnotes
1At that time, the divorce proceeding had been pending in Massachusetts since 1988. Attorney Ayer was admitted pro hac vice to represent Mr. Spenlinhauer in 1996.
2The factual findings are taken from those portions of the Information that Attorney Ayer admitted and from the Stipulation filed by the parties on October 15, 2008.
3Spencer Press of Massachusetts, which was partially owned by John Spenlinhauer, owned the shares of Spencer Press of Maine, Inc. For convenience, both entities will be referred to as "Spencer Press." John and his brother, Stephen P. Spenlinhauer, were the principal owners of Spencer Press.
4In later proceedings, all three admitted those representations to Ayer were untrue.
5The Board of Directors of Spencer Press comprises three members, John, Stephen, and Edmond Nugent.
6Ms. Spenlinhauer filed her first complaint against Attorney Ayer alleging interference with justice in 1992. The Grievance Commission dismissed that complaint in November 1992.
Board of Overseers of the Bar v. J.P. Nadeau, Jr., Esq.
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Docket No.: GCF 07-201
Issued by: Grievance Commission
Date: May 26, 2009
Respondent: J.P. Nadeau, Jr., Esq.
Bar Number: 001020
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Adversary Conduct
Stipulated Report of Findings and Order of Panel E of the Grievance commission
M. Bar R. 7.1(e)(4)
M. Bar R. 7.1(e)(2)
On May 26, 2009, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, J.P. Nadeau, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 17, 2009.
At the hearing, Attorney Nadeau was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. The complainant, Sara Meerse, Esq. also participated in the disciplinary proceeding. Prior to the hearing, the parties had submitted a proposed, Stipulated Report of Findings and Order for this Grievance Commission Panel's review and consideration.
Having reviewed the proposed Report as presented by counsel, the Panel makes the following disposition:
Findings
Respondent J.P. Nadeau (Attorney Nadeau) of Portsmouth, New Hampshire has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Nadeau was admitted to the Maine bar in 1966 and he is currently registered with the Board as an active Maine attorney.
On July 2, 2007, Attorney Meerse filed a grievance complaint against Attorney Nadeau. The complaint alleged violations of the Code of Professional Responsibility by Attorney Nadeau related to a 2006 protective custody proceeding where Meerse served as Guardian ad litem (GAL). On or about July 13, 2007, Attorney Nadeau filed his initial response to the grievance explaining his involvement in the matters affecting his client, the mother of the children. In that initial answer to the complaint, Attorney Nadeau denied any commission of misconduct. Thereafter, the Board conducted an investigation surrounding the events described by Attorneys Meerse and Nadeau.
Pursuant to its investigation, the Board learned that there had been a previous 2001 protective custody proceeding in Maine in which Attorney Meerse was the GAL and in which Attorney Nadeau represented the mother until his withdrawal in 2003. Following the conclusion of the prior Maine District Court protective custody case, the children lived with their father in New Hampshire and their mother continued to live in Maine. The District Court dismissed that proceeding in 2005 as the jeopardy matter had been resolved due to the entry of a family matter proceeding in which custody of the children was granted to their father. On October 18, 2006, Attorney Nadeau, acting on Affidavits from two of the children's family members, represented the mother in the filing of a New Hampshire Parenting Petition matter in the county where the children resided. The New Hampshire Court, after conducting an ex parte hearing, awarded custody of the children to their mother. On October 19, 2006, apparently following contact by the father, Maine Department of Health and Human Services (DHHS) obtained a Preliminary Child Protection Order returning custody of the children to their father due to allegations the children were at immediate risk of harm with their mother. According to Attorney Nadeau, despite those allegations, there had been no contact between DHHS and the children's mother for two (2) years.
Pursuant to the Maine District Court's Order, the Berwick Police Department provided assistance to the DHHS to obtain custody of the children from Attorney Nadeau's client. In that regard, Bar Counsel contends that Attorney Nadeau should not have become involved in the police department's efforts to secure the children. Attorney Nadeau asserts that he was trying to understand the conflicting orders and jurisdiction issues resulting from the New Hampshire Court Order issued October 18, 2006 and the Maine Court Order that was issued the following day, October 19, 2006. Regardless of the difference in opinion, Attorney Nadeau now agrees that his involvement at the mother's family home may have intensified the attendant emotions related to the police execution of the court's order. However, after Attorney Nadeau conferred further with the New Hampshire Court the children were released to Maine DHHS as directed by that Order.
Thereafter, continued jurisdictional concerns arose when on October 20, 2006, the New Hampshire Family Court entered a Temporary Order awarding temporary custody of the children jointly to their paternal aunt and maternal grandmother. Three days later, the Maine District Court amended its Order of October 20, 2006 and awarded custody of the children to the Maine DHHS. According to Attorney Nadeau, in December 2006 the New Hampshire court awarded temporary custody of the children to their father, then in May 2007 it awarded shared residence and thereafter in February 2008, awarded primary residence to the mother.
While Attorney Nadeau did not act as counsel for the mother in the related Maine proceedings, it is clear that he did not immediately inform the other litigants or the Maine District Court that he had restricted his representation of the mother to only the New Hampshire proceeding. Attorney Nadeau contends that he did not think to do so because he had withdrawn from the earlier Maine proceeding before its conclusion. In hindsight, Attorney Nadeau recognizes that his communication with the Maine court could have been clearer.
Finally, while representing his client, Attorney Nadeau filed a series of pleadings in the New Hampshire Family Court. Some of those pleadings asserted arguments or relief that in hindsight, Attorney Nadeau acknowledges were a reflection of inappropriate professional judgment due to his criticism of other litigants and the Maine court system. Accordingly, based upon the above-outlined facts, Attorney Nadeau accepts a finding that he violated M. Bar R. 3.1 (a); 3.2(f)(4); and 3.7(e)(2)(vi).
Conclusion and Sanction
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to their clients and the courts. The Panel notes that Attorney Nadeau has now taken responsibility for his above actions in representing his family law client. During this hearing, Attorney Nadeau expressed remorse for his violations of the Code of Professional Responsibility.
M. Bar R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have failed to discharge properly their professional duties. Since the evidence supports a finding and Attorney Nadeau agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes. The Panel has been informed by counsel that while dissimilar from the events in 2006, Attorney Nadeau did receive a reprimand sanction after hearing in 1987 for engaging in a conflict of interest by improperly representing two defendants in a multi-party drug criminal case.
Therefore, the Panel accepts the agreement of the parties, including Attorney Nadeau's waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to J.P. Nadeau Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1 (e)(3)(c), (4).
For the Parties
Aria Eee, Assistant Bar Counsel
J. P. Nadeau, Esq., Respondent
For the Grievance Commission
Victoria Powers, Esq., Panel E Chair
Martica Douglas, Esq.
Joseph R. Reisert, Ph.D
Board of Overseers of the Bar v. Thomas R. Acker - Hollis, ME
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Docket No.: BAR-05-08
Issued by:
Date: September 22, 2006
Respondent: Thomas R. Acker
Bar Number: 003381
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of an Attorney; Subversion of Bar Rules; Conduct Prejudicial to the Administration of Justice; Responsibilities re: Law-Related Services; Conflict of Interest: Successive Representation; Neglect; Preserving Identity of Funds and Property
Order of Disbarment
This matter is before the Court pursuant to M. Bar R. 7.2(b) (1) by disciplinary pleadings filed by the Board of Overseers of the Bar, seeking the disbarment of Thomas R. Acker. The parties previously notified the Court that they were in agreement to a stipulated order, as reflected below:
Based upon the pleadings, the record of letters and exhibits and the parties' representations, the Court makes the following findings:
Based on these findings, the Court concludes that Thomas R. Acker has violated the following Maine Bar Rules: 3.1(a); 3.2(f)(1)(3), 3.2(h); 3.4(f)(2)(i); 3.6(a)(3); and 3.6(e)(1).
Additionally, by agreement of the parties, this order refers to and includes all of the following complaints docketed and processed as Grievance Commission Files (GCF) under Maine Bar Rule 7.1(d),(e) and/ or 7.2(b)(7) now before the Court:
GCF 05-011 involving complainants Louise and Richard Bernhardt
GCF 05-019 involving complainant Candis and Charles Bridges
GCF 05-418 involving complainants Robert and Laura Foster
GCF 06-60 involving complainants William and Patricia Chasse
GCF 06-127 involving complainants Matthew and Karen Randall
GCF 06-140 involving complainants Peter and Harriet Robinson
GCF 06-158 involving complainants Keith and Sharon Ingraham
GCF 06-285 involving complainant Bette Soule
The violation of these provisions of the Bar Rules are numerous and serious, affecting many clients and the integrity of the disciplinary process. While Mr. Acker denies any criminal wrongdoing, he agrees that his actions were harmful to his clients, himself and the legal system. He has voluntarily agreed to cease the practice of law and acknowledges the severity of his actions. Protection of the public is the primary purpose of the attorney discipline system. Bearing in mind that purpose, the parties agreement and the absence of mitigating factors, these numerous and serious violations of the Maine Bar Rules require that the sanction of disbarment be imposed as the only appropriate sanction in the circumstances.
Order
It is hereby ORDERED that Thomas R. Acker be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. It is further ORDERED that should Acker seek reinstatement in accordance with M. Bar R. 7.3(j)(1), he must do so under the following conditions:
| Richard & Louise Bernhardt | Charles & Candis Bridges |
| Bette Soule | Robert & Laura Foster |
| Alfred R. Meyer III | William & Patricia Chasse |
| Matthew & Karen Randall | Keith & Sharon Ingraham |
| Peter & Harriett Robinson | Robert & Linda Green |
Under Rule 3 of the Maine Rules for Lawyers' Fund for Client Protection this Court must also consider the following provision:
In this case, there are several claims pending before the Lawyers' Fund for Client Protection (LFCP). To the extent that the LFCP partially reimburses claimants for their losses related to the conduct of Thomas R. Acker, Mr. Acker's refund to the LFCP shall be credited toward the total amount of any subsequent restitution he is obligated to pay to any of the individual claimants.
For the Court
Hon Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
For the Parties
Aria eee, Esquire
Thomas R. Acker
Board of Overseers of the Bar v. Dale L. Lavi, Esq.
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Docket No.: 08-448
Issued by: Grievance Commission
Date: February 8, 2010
Respondent: Dale L. Lavi, Esquire
Bar Number: 008848
Order: Reprimand
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct During Representation; Preserving Identity of Funds and Property
Stipulated Report of Findings and Order of Panel C of the Grievance Commission
On February 8, 2010 with due notice, Panel C of the Grievance Commission conducted a disciplinary hearing concerning misconduct by the Respondent, Dale L. Lavi, Esq. This proceeding had commenced on September 7, 2009 through the Board of Overseers of the Bar?s filing of a Disciplinary Petition. The February 8, 2010 hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(2)(E).
At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria Eee and Attorney Lavi appeared pro se. Prior to the hearing date, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. The complainant, Sharon Miller, (Miller) was present at the disciplinary hearing. She was also provided with a copy of the proposed order in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
FINDINGS
Respondent Dale Lavi (Lavi) of Camden, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Lavi was admitted to the Maine Bar in April of 1999 and he remains an actively licensed attorney.
As explained in Ms. Miller?s complaint, Attorney Lavi began representing her in January of 2008 in a matter related to Miller?s credit card debt. During the representation, Attorney Lavi belatedly filed an answer to the creditor?s complaint, resulting in a default judgment against Ms. Miller. In hindsight, Attorney Lavi now appreciates the risk in relying on an unconfirmed date of service (as he did in Miller?s civil matter) in order to calculate a response deadline.
Subsequently, Attorney Lavi engaged in further representation of Ms. Miller on similar but unrelated consumer credit matters. Within his responses to this grievance matter, Attorney Lavi explained that he expended a fair amount of additional time in Ms. Miller?s case (pre-filing) than many other Chapter 7 cases he has handled. That work included Attorney Lavi?s attendance at a Disclosure Hearing in Rockland District Court where he discussed the matter with opposing counsel and the presiding judge. As a courtesy, Attorney Lavi apparently did not charge Ms. Miller for that work.
Thereafter, due to personal difficulties, Attorney Lavi became unable to perform legal services for a period of time. Coupled with the lack of a back-up plan, Attorney Lavi?s absence from practice created problems for Ms. Miller and his law office. Undoubtedly, his failure to timely communicate or meet with Ms. Miller in order to file her bankruptcy and to avoid the garnishment of her wages resulted in real harm to Ms. Miller and a violation of M. Bar R. 3.2(f)(4) and 3.6(a)(2)(3). Moreover, Attorney Lavi?s failure to promptly return Ms. Miller?s file constituted a violation of M. Bar R. 3.6(e)(2)(iv).
Since that time, Attorney Lavi has reported to the Board a synopsis of the changes instituted within his law practice which are designed to prevent any similar problems. In that regard, Attorney Lavi has apparently instructed his wife how to access all information within his law practice. He has also created a computer-based client file list, including important dates and status descriptions of each case. Within that client list are the names and phone numbers of three local attorneys to which Attorney Lavi?s wife can make any necessary referrals.
CONCLUSION AND SANCTION
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Lavi?s above-outlined failures, Ms. Miller?s legal matters were not timely addressed thereby creating unnecessary harm. The panel notes that Attorney Lavi has taken responsibility for his transgressions. He has refunded the money Ms. Miller paid to him and he has apologized for his treatment of her. At the disciplinary hearing, Attorney Lavi expressed his remorse for his violations of the then applicable Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Lavi agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Lavi?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Dale L. Lavi, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Parties
Aria Eee, Assistant Bar Counsel
Dale Lavi, Esq., Respondent
For the Grievance Commission
David S. Abramson, Esq., Chair
Martha C. Gaythwaite, Esq.
Christine Holden, Ph.D
Board of Overseers of the Bar v. Ronald L. Bishop
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Docket No.: BAR-00-06
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 6, 2002
Respondent: Ronald L. Bishop
Bar Number: 000886
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of an Attorney; Ilegal Cnduct ; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice; Excessive Fees; Standards of Care and Judgment: Compentency; Neglect
FINDINGS, CONCLUSIONS AND ORDER
This matter is before the Court on the Board of Overseers of the Bar's Amended Motion for Contempt/Appointment of Counsel seeking further discipline of former Attorney Ronald L. Bishop. The Board's motion was filed with the Court and duly served upon Mr. Bishop. Mr. Bishop never filed any response to the motion and, after notice, failed to appear at the Court's hearing of May 6, 2002.
At that hearing, Bar Counsel, J. Scott Davis, appeared for the Board and presented .several witnesses and exhibits. Based on review of the file and the evidence presented at the hearing, the court finds that the relevant facts are as follows:
Conclusions
Based upon Mr. Bishop's action in: (i) agreeing to undertake representation of new clients while under disciplinary suspension ordered by this Court; (ii) accepting fees from those clients for that supposed representation; (iii) failing to perform any of the requested legal work for those clients as well as for several former clients, whom he never told that he had been suspended or left practice; (iv) either neglecting or misleading clients concerning the status of the work and their respective cases; (v) misappropriating and converting monies that actually or constructively belonged to at least three clients; (vi) abandoning several of his clients, including clients retained while he was under suspension; and (vii) failing to repay several clients their-fees after he had abandoned them without doing any legal work, the Court concludes:
Mr. Bishop's conduct in undertaking and taking money from three new clients while under suspension and with no intention to return to practice is serious misconduct and a flagrant contempt of the suspension order and rules governing attorney conduct in Maine. His conduct in (i) misleading clients as to the status of their case, (ii) failing to repay funds taken from clients for which he did no work, and (iii) receiving client funds with an obligation to pay client bills and then not paying those bills, is dishonest and the type of misconduct that brings the profession into disrepute.
As a result of his serious misconduct and contempt, disbarment of Mr. Bishop is the only appropriate remedy.
Order
Therefore, based on the findings and conclusions stated above:
For the Court
Hon. Donald G. Alexander, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Francis P. Daughan, Esq.
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Docket No.: BAR-02-6
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 9, 2002
Respondent: Francis P. Daughan, Esq.
Bar Number: 000531
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Illegal Conduct; Conduct Involving Misrepresentation; Conviction of Crimes
ORDER
This matter is before the Court on an information by the Board of Overseers of the Bar, pursuant to Maine Bar Rules 7.2(b) (1), (2) and 7.3(d), including Grievance Commission Vice Chair Patricia M. Ender's Consent to Commence a Disciplinary Proceeding dated February 19, 2002 authorizing the Board to file an Information directly with the Court without the necessity of hearing by the Grievance Commission under Maine Bar Rules 7.1 (d), (e).
Stipulations
The parties have stipulated to the following material facts:
On or about December 7, 2000, Attorney Francis P. Daughan executed an Agreement to Plead Guilty to a one count Information charging him with loan and credit application fraud, in violation of 18 U.S.C. ? 1014. By information dated December 11, 2000, the Office of the United States Attorney, District of Maine charged Attorney Daughan with having knowingly made a false statement for the purpose of influencing the action of American Investment Bank, N.A. in connection with a credit application and loan, all in violation of 18 U.S.C. ? 1014. On January 4, 2001, Attorney Daughan signed a waiver of indictment concerning that underlying matter, and was thereby convicted of the federal criminal offense of making false statements on a loan and credit application. Chief Judge D. Brock Hornby imposed judgment in this federal criminal case on April 5, 2001, which included supervised release for a term of three (3) years and a fine of $2,500.
Conclusion of Law
The parties agree and the Court so finds that Attorney Daughan's misconduct and resulting criminal conviction is in violation of Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(2) (illegal conduct); and 3.2(f)(3) (conduct involving misrepresentation) and warrants the disciplinary sanction of suspension pursuant to Maine Bar Rule 7.3(d) (Conviction of Crimes).
Sanctions
Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must now consider an appropriate sanction. In that regard, Attorney Daughan has admitted his criminal conduct to the U.S. District Court for his misconduct. The parties agree and this court finds that Attorney Daughan is not likely to repeat this misbehavior. He has decided to voluntarily remove himself from the active practice of law and to file as an inactive Maine attorney. Therefore, keeping in mind that the main purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanction in this matter as proposed by the parties:
This order is entered based upon the Court's express understanding that at the conclusion of that period of suspension on January 9, 2003, Attorney Daughan will then immediately file with the Board a notification of his voluntary cessation of the practice of law in Maine, and will then register on inactive status under Maine Bar Rule 6(c). In any event, Attorney Daughan shall not anytime thereafter resume the active practice of law in Maine without first having complied with all the provisions and requirements of Maine Bar Rule 6(a);(c)(3).
For the Court
Hon. Robert W. Clifford, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Frank B. Walker, Esq.
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Docket No.: GCF 99-42
Issued by: Grievance Commission
Date: January 19, 2000
Respondent: Frank B. Walker, Esq.
Bar Number: 000058
Order: Reprimand
Disposition/Conduct: Standards of Care and Judgment: Inadequate Preparation; Neglect
REPORT OF FINDINGS AND CONCLUSIONS
On December 7, 1999, Panel A of the Grievance Commission conducted a public disciplinary hearing in accordance with Maine Bar Rule 7(e)(2), with respect to alleged professional misconduct of Respondent Frank B. Walker, as described in a Petition dated September 29, 1999, filed by Bar Counsel of the Board of Overseers of the Bar.
The Board of Overseers was represented by Geoffrey S. Welsh, Esq., Assistant Bar Counsel. Respondent Frank B. Walker, Esq. was represented by Phillip R. Foster, Esq., of the Foster Law Office.
Prior to the commencement of the hearing, the parties agreed to the admission of Board exhibits 1 through 22. During the hearing Respondent moved the admission of two exhibits labeled Defendant's exhibits 1 and 2; they were admitted without objection. The following witnesses were sworn and testified before the panel: Peter K. Dressel and Frank B. Walker, Esq.
The Petitioner contends Frank B. Walker, Esq. violated Maine Bar Rules 2(c); 3.1(a); 3.2(f)(3)(4); 3.5(a)(2); 3.6(a)(2),(3); and 3.6(e)(2)(IV) in his representation and handling of various matters for Peter K. Dressel and concerning his response to a Board inquiry.
Findings
Frank B. Walker, Esq. is an attorney who practices in Ellsworth, Maine. Peter K. Dressel is a resident of Ellsworth who at various times over a 20 year period retained Frank B. Walker, Esq. to handle legal matters. Mr. Dressel retained Mr. Walker's services to advise him in estate planning, corporate and personal legal matters. At times relevant to this complaint Mr. Dressel owned and operated a business known as Bill's Towing and Recovery. Mr. Walker also provided legal services to this business.
Sometime before October of 1998 Peter Dressel purchased a used vehicle from Coldbrook Saab in Skowhegan, Maine. Mechanical problems arose with the vehicle that Dressel thought should have been covered under a used car warranty. The dealership was asked to repair these problems but declined to do so. Dressel had the repair work performed at another dealership and thought he could recover the costs of these repairs from Coldbrook. Dressel around the same time purchased floor mats for his car from Coldbrook for $189.44. Dressel did not pay for the mats, instead he thought he could work an arrangement with Coldbrook where he would get credit for the repairs performed by the other dealership and that credit would be applied to the mat purchase. Coldbrook rejected this arrangement and demanded payment from Dressel. When Dressel did not pay the dealership, Coldbrook in February 1998 filed a collection action against him in Skowhegan District Court. Dressel brought the complaint to Frank Walker, Esq. and asked that he represent him. They also discussed a Counterclaim for the warranty work. No Counterclaim was ever filed.
Upon receipt of the Complaint Walker filed a Motion for Extension of Time to file an Answer and a week later filed a Motion to Dismiss. On June 12, 1998, the Motion to Dismiss and a motion filed by the Plaintiff were scheduled for argument in Skowhegan District Court. Frank Walker traveled from Ellsworth to Skowhegan to attend the motion argument. He met with Plaintiffs counsel on that day in Skowhegan and attempted to negotiate a settlement. No settlement was reached but both motions were withdrawn.
On October 9, 1998, Coldbrook filed an Affidavit and Request for Default and Default Judgment. On October 29, 1998, no Answer having been filed a Default was entered. On or about April 6, 1999, Peter K. Dressel was served a Disclosure Subpoena ordering him to appear in Skowhegan District Court on May 20, 1999. Shortly thereafter Dressel met with Walker and learned that Walker never answered the Complaint and a Default Judgment had been entered against him. On April 16, 1999, Peter K. Dressel filed a formal disciplinary Complaint against Frank B. Walker, Esq. complaining about Walker's lack of attention and failure to keep him informed of the status of this case. Sometime thereafter Frank B. Walker using his own funds satisfied the Coldbrook judgment.
In the early spring of 1998 two vehicles involved in a fatal accident were placed on the Bill's Towing and Recovery storage lot. The vehicles sat on the lot for many months. Dressel contacted Walker and sought advice on what he should do and who he should contact to collect storage fees for these vehicles. Around the same time Dressel was paid storage fees for one of the vehicles. Walker agreed to investigate the possibility of securing payment for the storage of the second vehicle. The owner of the second vehicle died in the accident. It was Walker's understanding that the estate had not been probated, a personal representative was not identified, and identifying a responsible party may be more timely than it was worth. He believed there was little chance of any recovery on this storage and shared that opinion with Dressel. Mr. Dressel on his own called the insurance company providing coverage on the vehicle and made a modest demand. The carrier paid the demand. Dressel complained that Walker wasted his time and should have expeditiously resolved this matter for him.
As part of a criminal investigation the Maine State Police acting under the direction of the office of the Hancock County District Attorney seized a number of motor and recreational vehicles and stored them for preservation and safe-keeping at Bill's Towing and Recovery. Mr. Dressel made no arrangement with the authorities in advance or at the time of the storage for payment of storage fees. After the vehicles were stored for a considerable period of time Dressel asked Walker to help him collect storage fees from the State Police and/or the District Attorney's office. At this same time Dressel was attempting to establish a favorable working relationship with the local authorities so they would use his facility for storage and impounding vehicles. Dressel and Walker discussed placing liens on the vehicles and suing the District Attorney's office and /or the State Police. It is not clear from the record before the panel who drafted or attempted to place these liens; it is clear Walker advised against suing either the District Attorney's office and/or the State Police. The evidence shows that the liens were not properly prepared and no liens were placed on the vehicles. The evidence is unclear as to what Dressel expected from Walker. He complained that Walker did not protect his interests and this caused him great hardship.
Conclusions and Disposition
The Board contends Frank Walker, Esq. violated a number of Bar Rules. Based on the facts recited above the Panel finds Mr. Walker violated Bar Rule 3.6 in that he did not exercise sufficient care and skill in the handling of the Coldbrook Saab matter and he failed to keep his client informed of the status of this matter. We find there is no factual or substantive basis to conclude there were violations of the Bar Rules in Frank Walker's handling of the insurance collection matter or auto storage dispute.
We find further that Bar Counsels initial inquiry invited a general response to Dressel's complaint. There was a follow-up letter seeking more specific information and specific information was provided. We conclude a broadly worded reply to a general inquiry does not violate the Bar Rules.
We find Frank Walker's failure to return the complete files to Peter Dressel in a timely manner is a Bar Rule violation.
In view of the foregoing the Panel concludes Frank Walker, Esq. is reprimanded for violating Maine Bar Rules 3.6(a)(2),(3) as established in the findings discussion in this report. A public reprimand is an appropriate disposition given the nature of the violations and circumstances surrounding them.
For the Grievance Commission
Paul H. Sighinolfi, Esq.
Rebecca A. Irving, Esq.
Andrew J. Pease, Jr.
Board of Overseers of the Bar v. Joseph R. Hunt, Esq.
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Docket No.: BAR-02-03
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 14, 2002
Respondent: Joseph R. Hunt, Esq.
Bar Number: 002926
Order: Suspended Suspension
Disposition/Conduct: Conduct During Representation: Neglect
ORDER
This matter came before the Court on May 10, 2002. Pursuant to M. Bar R. 7.1(e), disciplinary proceedings occurred before the Grievance Commission on November 19, 2001. As a result, the Grievance Commission found probable cause for these court proceedings to be initiated. The Board of Overseers of the Bar (the Board) was represented by Bar Counsel J. Scott Davis. The complainant, Kathleen Mundell, was present. Defendant Joseph R. Hunt, Esq. was present with his attorney, Richard W. Hall, Esq.
Stipulations
The parties have stipulated to the following material facts:
Mr. Hunt was admitted to practice in Maine in 1984 and has been practicing in Bangor, Maine since that time.
On or about October 9, 2000 Kathleen Mundell of Blue Hill, Maine met for an office visit with Mr. Hunt and then retained him to pursue a correction to her child support amount and a change in the visitation schedule contained within her earlier divorce decree. That meeting lasted for approximately one hour and included Hunt's review of what would need to occur, including sending an initial letter to Mundell's former spouse, Laurence Rizzio. They also discussed possible motions to modify and/or enforce the child support arrearage amount. They then agreed that Mr. Hunt would prepare and send a letter to Rizzio.
On that date, at Hunt's request, Ms. Mundell paid a $250.00 retainer fee. After that initial meeting date of October 9, 2000, Mr. Hunt made no further contact either verbally or by letter with Ms. Mundell, and also failed to answer or respond to Ms. Mundell's repeated telephone calls to him. By letter of November 28, 2000 Ms. Mundell wrote to Mr. Hunt requesting a refund of the $250.00 retainer fee based upon his neglect of her legal matter. He never responded to that letter.
Although Mr. Hunt claims to have "worked at drafting it" he never did actually produce or send any such letter for Ms. Mundell. He also made no attempts to advise Ms. Mundell that he was rethinking his strategy or approach as to whether any letter at all should be sent to Mr. Rizzio. He made no attempts to inform Ms. Mundell that his earlier estimate of a week or two weeks to perform legal services had changed to a longer time period.
Conclusions of Law
The parties have stipulated and the Court finds that Mr. Hunt's misconduct was neglectful and in violation of M. Bar R. 3.6(a) (3) (a lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not neglect a legal matter entrusted to the lawyer).
Sanction
Mr. Hunt was disciplined by the Court in 1991 for neglect of a client and then received a suspended suspension for 90 days with a very informal supervisory arrangement as approved by the Court's Order of March 6, 1995. Since that time, Mr. Hunt has sustained no further discipline. From the facts of this case and his general practice habits, Mr. Hunt agrees that he needs assistance in the management of his law practice.
Accordingly, the Court HEREBY ORDERS that Joseph R. Hunt be and hereby is suspended from the practice of law in Maine for a period of sixty (60) days, that suspension being suspended for one year commencing June 1, 2002 subject to the following terms and conditions:
For the Court
Hon. Howard H. Dana, Jr., Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re James A. Brunelle, Esq.
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Docket No.: BAR-91-18 and BAR- 93-5
Issued by: James A. Brunelle, Esq.
Date: March 13, 2002
Respondent: James A. Brunelle, Esq.
Bar Number: 003954
Order: Reinstatement Denied
Disposition/Conduct:
ORDER DISMISSING PETITION FOR REINSTATEMENT M. BAR R. 7.3(j)
This matter having come on for review by motion of the Board of Overseers of the Bar, and by agreement of the parties, it is hereby ORDERED that James A. Brunelle's Petition for Reinstatement to the Maine Bar dated March 12, 1993, is dismissed without prejudice. Upon submission of any subsequent Petition for Reinstatement, in addition to the requirements of M. Bar R. 7.3(j), Mr. Brunelle shall be required to also submit an affidavit certifying his satisfactory compliance with all of the conditions contained in the Court's Order dated April 5, 1993, in this matter.
For the Court
Hon. Susan Calkins, Associate Justice -Maine Supreme Judicial Court
Board of Overseers of the Bar v. Andrews B. Campbell, Esq.
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Docket No.: GCF 04-185
Issued by: Grievance Commission
Date: March 28, 2006
Respondent: Andrews B. Campbell, Esq.
Bar Number: 001344
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Responsibilities of a Supervisory Lawyer
REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION
On March 28, 2006, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning admitted misconduct by the Respondent, Andrews B. Campbell. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on February 2, 2006.
Present at the hearing were Bar Counsel J. Scott Davis, representing the Board, and Attorney William B. Cote with his client, Respondent Andrews B. Campbell. The complainant, Dale Wood, is currently incarcerated and was therefore not present at the hearing, but Bar Counsel had provided Mr. Wood with a copy of the Board's proposed Report in advance of the hearing.
Attorney Campbell addressed the Panel concerning his misconduct. Having considered the comments of those present at the hearing and reviewed the agreed upon proposed findings presented by counsel, the Panel makes the following findings and disposition:
FINDINGS
CONCLUSION AND SANCTION
It is a clear violation of the minimum standards established in Maine's Code of Professional Responsibility for an attorney to fail to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility. During this proceeding, Attorney Campbell has now taken full responsibility for his actions and the subsequent distress it caused Mr. Wood.As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. Accordingly, although the Panel knows that Attorney Campbell has a significant public disciplinary record and had been removed from practice for a significant number of years, the Panel agrees with both parties' counsel that the misconduct involved in this current matter - particularly given Attorney Campbell's candor and remorse for that misconduct - and given the particular facts of this case, a reprimand serves those purposes of the Bar Rules.
Therefore, the Panel concludes that the appropriate disposition of this case is a public reprimand which it has now delivered to Attorney Andrews Bruce Campbell as provided by M. Bar R. 7.1(e)(3)(C).
For the Grievance Commission
Charles W. Smith, Jr., Esq., Chair
Stephen Schwartz, Esq.
Joseph Reisert, Ph.D.
Board of Overseers of the Bar v. Karen M. Burke, Esq.
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Docket No.: BAR-99-6
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 15, 2000
Respondent: Karen M. Burke, Esq.
Bar Number: 002940
Order: Reprimand
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment
FINDINGS, CONCLUSIONS and SANCTION
This matter was heard by the court on February 23, March 1, and March 2, 2000, pursuant to an information filed by the Board of Overseers of the Bar. The Board was represented by Assistant Bar Counsel, Geoffrey S. Welsh. Karen M. Burke, Esq., Maine Bar #2940, was present and represented by Philip P. Mancini, Esq.
The information filed by the Board alleged violations of the Maine Bar Rules occurring in the course of Burke's representation of three separate clients. Specifically, the Board charged Burke with violating Bar Rules 3.1(a), 3.2(f)(2)-(4), 3.3(a), 3.4(f)(2)(i), 3.6(a)(1), (2) & (3), and 3.7(b) & (e)(l)(i).
During the hearing, both sides submitted a number of exhibits and the court heard testimony from Burke's former clients, Gail and Robert Beesley, Carolee Weglarz, and Stephen Weston; attorneys Waldeman Buschmann, Daniel Peterson, and Donald Gasink; Heidi Pushard; Rhonda Cook and Cheryl Cutliffe, as well as testimony from Burke, herself. Based on this testimony and the record evidence, the court finds the following facts and draws the following conclusions:
Beesley v. Burke (In re Beesley), Case No. 96-10686 (Bankr. D. Me. Aug. 15, 1997) (footnote omitted).
Beesley, Case No. 96-10686.
The Court must consider the appropriate sanction in light of the findings and conclusions stated above and the violations found. In this consideration, the Court's determinations must be guided by the Maine Bar Rules' directive that the purpose of this disciplinary action "is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." See M. Bar R. 2(a).
The Board urges the Court to briefly suspend Burke as a result of her violations of M. Bar R. 3.2(f)(4) (conduct prejudicial to the administration of justice) [Beesleys] and 3.6(a)(2) (handling a legal matter without preparation adequate in the circumstances) [Weglarz]. The Board's recommendation is based on what it considers to be aggravating factors:
Although, not unmindful of these factors, the Court is also aware of several mitigating factors:
Burke practices alone in a largely rural area of Maine. The breadth of her practice and perhaps that of many solo practitioners is substantial. A solo practitioner offering a large menu of legal services is going to make mistakes. Even a specialist in a department of specialists in a large law firm makes mistakes. When the State is required to provide an indigent person with a lawyer, we do not require perfection only the performance of an "ordinary fallible attorney." See Aldus v. State, 2000 ME 47, ? 12, 748 A.2d 463, 467. Mistakes are a fact of life. We should not suspend or disbar lawyers for garden variety negligence. I will not do so here.
Secondly, Burke's "aggressive," "see no error," posture may have been taken on the advice of counsel.
Third, to the extent that Burke tended to exacerbate the situation when she was challenged by clients, it may have been caused by the stress of being overworked and understaffed.
Finally, consistent with the many written testimonials submitted in her behalf, the Court is satisfied that Burke is a thoughtful, caring, hardworking professional.
Although Burke violated two bar rules, neither a disbarment nor a suspension is necessary to protect the public, secure compliance with the rules or acknowledge the seriousness of the violations. The violations are sufficiently serious however, that the Court will impose a reprimand.
It is therefore ORDERED that respondent Karen M. Burke is hereby reprimanded for her violations of M. Bar R. 3.2(f)(4) and 3.6(a)(2).
For the Court
Hon. Howard H. Dana Jr., Associate Justice - Maine Supreme Judicial Court
Footnotes
1. Burke's interview notes, as well as her testimony, fixes the amount at $1000. Mrs. Beesley testified, however, that the amount was $750.
2. Weglarz has warranty covenants from her grantor and so far as the record indicates, has chosen not to remedy her situation by pursuing them. This is particularly puzzling because, it appears, that her grantor. Mrs. Manter, is presently in a position to deed her alternate access to the lake.
3.Also, in the course or their professional relationship, Weston provided Burke goods and services through his furniture restoration business that would be credited against his bills. Burke and Weston were eventually forced to go through fee arbitration to ultimately resolve the amount that was owed to Burke following the breakdown of their relationship. The court will not go into further detail regarding the goods and services arrangement, however, as it does not form the basis of any of the Board's allegations or misconduct.
4The Board also alleges that the terms of the lease were unfair to Weston because of the absence of a termination and forfeiture clause for Weston's benefit. In view of Weston's debt to Burke, this deficiency does not render the lease, as a whole, unreasonable.
Board of Overseers of the Bar v. Patrick Hunt, Esq.
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Docket No.: BAR-09-12
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 29, 2010
Respondent: Patrick Hunt, Esq.
Bar Number: 002707
Order: Decision & Amended Order
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Communicating With Adverse Party
Decision
[?1] This matter is before the Court for decision, after hearing, on a complaint regarding Patrick Hunt, brought by the Board of Overseers of the Bar. The complaint alleges eight violations of the Maine Bar Rules:
[?2] Patrick Hunt has been an attorney for twenty-seven years practicing in Island Falls, Maine. On August 24, 2000, the Department of Human Services[1] (the Department) referred a case to him involving the estate of Eldora Bourgeois. Eldora died on September 15, 1996, and at the time of her death, the Department had a lien against her estate in the amount of $124,603 for funds expended on her behalf prior to her death. Her son, Ernest Bourgeois, predeceased her. Ernest's widow was Allmeda Bourgeois, and they had five children, Eric, Gail, Ann, Jane, and Cheryl.
[?3] Following Eldora's death in 1996, six U.S. saving bonds issued to Eldora with a face value of $5200 were found by her heirs. The savings bonds listed Mrs. Eldora Bourgeois as the owner and named Gerald E. Bourgeois and/or Ernest Gerald Bourgeois as P.O.D. (pay upon death).
[?4] In the spring of 2000, Eric disclosed the discovery of the bonds to Allmeda. Eric, believing that the bonds belonged to Allmeda, conferred with Attorney Melissa Hale of Ellsworth. Hale informed Eric and Allmeda that the State of Maine had a lien in the amount of $124,603 on any assets of Eldora's estate; therefore, the State had the right to claim the bonds for the purposes of reimbursement. Eric and Allmeda gave the bonds to Hale. Subsequent to this meeting, Hunt contacted Eric by phone at which time Eric informed him that the bonds had been turned over to Hale. On September 27, 2000, following his phone conversation with Eric, Hunt sent a letter to Hale acknowledging that the bonds had been turned over to her. In that letter Hunt stated: "I spoke with Eric Bourgeois earlier this week, before I knew of your involvement." He requested that Eldora's heirs assign the savings bonds to the Department so that they could close out the matter.
[?5] On January 17, 2001, Hale responded to Hunt's letter indicating that she had the bonds and acknowledging that the State was entitled to them. Hale explained that Ernest was Eldora's only child and that Ernest had left five children. Hale set out the names of Ernest's children and their mailing addresses. She included the bonds in the letter that was sent to Hunt.
[?6] Following this letter from Hale, Hunt waited approximately eighteen months, until June 2002, to try and set up a meeting with Allmeda at the Machias Savings Bank. On June 27, 2002, in addition to contacting Machias Savings Bank, Hunt sent a letter directly to Allmeda requesting that she meet him on July 8 at the savings bank to negotiate the bonds. In this letter, he mistakenly referred to the fact that Allmeda's late mother owned the savings bonds. He also enclosed an affidavit along with that letter for Allmeda to sign and the affidavit contained wrong information. The affidavit referred to Allmeda as the daughter of Eldora and Ernest and stated that she was their only heir. Allmeda did not respond. Hunt called Eric during July 2002, and followed up with a letter dated July 20, 2002, addressed to Eric at his residence in Cambridge, Massachusetts. (Ex. 3 at 3.) In this letter, Hunt referenced Eldora's estate and tried again to set up a meeting to have Allmeda sign over the bonds to the State of Maine. He set a tentative date of July 30 at Machias Savings Bank, indicating that if resolution could not take place litigation would follow. In that letter, Hunt also acknowledged that Hale was the estate's attorney by agreeing to pay her attorney fees in the amount of $739.
[?7] Hunt sent another letter to Eric also dated July 20, 2002, but obviously sent subsequent to the first letter, trying to set up a meeting on August 19, 2002, at Machias Savings Bank. (Ex. 3 at 2.) The letter referenced Eldora's estate and indicated that the matter had to be closed by August 19 or he would withdraw his client's offer to them of July 20, 2002, and commence litigation. He also faxed this letter to Eric.
[?8] Following Hunt's attempt to set up a meeting with Eric and Allmeda, Virginia Lee Holt contacted him by letter dated August 17, 2002, and informed him that she was replacing Melissa Hale as the attorney for Eldora's estate. In this letter to Hunt, she indicated that Allmeda was not the heir to the bonds that were the focus of the lien claim. Holt stated that it was her belief and Hale's belief that the five children of Allmeda and Ernest were the legal heirs entitled to the bonds. She also explained her reasoning as to why the five children of Ernest and Allmeda were the legal heirs entitled to the bonds.
[?9] Following this letter, on August 22, 2002, Hunt filed a two-count complaint against Allmeda in Hancock County Probate Court. The complaint alleged fraud and sought a declaratory judgment (Count I) and alleged Medicaid fraud (Count II). Holt filed an answer and counterclaim in response to this complaint. Following the filing of this complaint, there was some discussion between Holt and Hunt regarding a petition being brought in the Probate Court to resolve the issue of the proper heirs. A petition for adjudication was filed in the Washington County Probate Court. Hunt sent to Holt a stipulation of judgment to resolve the matter, but before the matter could be resolved, the parties received a letter from the Washington County Probate Court (Holmes, J.) indicating that there were jurisdictional problems because the claim was being filed three years after Eldora's death. Following this, a motion for change of venue was made to the Houlton District Court, and as of the date of the hearing in this case, the motion had not been acted upon. From March 24, 2004, until October 2006, Attorney David Fletcher was involved on behalf of the estate and tried to resolve the matter with Hunt. There were numerous letters addressing a possible settlement of this matter.
[?10] This case started out as a simple matter of getting the necessary parties to assign the savings bonds to the State of Maine to satisfy the Department's lien for medical services provided to Eldora Bourgeois. No one contested the Department's rights to receive the proceeds from the savings bonds.
[?11] It is unfortunate that this unconstested matter turned into such a tangled web of confusion, filings, and correspondence. This confusion was caused by Hunt's mistaken belief that Allmeda was the proper heir to assign the bonds over to the Department. This mistaken belief, plus the delay in taking the necessary legal action to resolve this problem, caused the confusion and needless litigation.
[?12] The U.S. savings bonds were in Eldora's name with her son Ernest designated P.O.D., meaning payable upon death. This was not a joint account giving Ernest or his estate any legal interest in the savings bonds. His interest in the bonds ended when he predeceased his mother. The fact that his widow Allmeda may have had physical possession of the bonds at the time of Eldora's death did not give her any legal or equitable interest in the U.S. savings bonds. These bonds were payable only to the named owner of the bonds and possession is of no legal significance.
[?13] When the Department initially referred the case to Hunt, he mistakenly believed that Allmeda was the proper heir to assign the bonds. The documents also indicate that there was some confusion as to the relationship between Allmeda and Eldora. After talking with Eric in the summer of 2000, Hunt learned that the bonds had been turned over to Attorney Hale. On September 27, 2000, Hunt wrote a letter to Hale acknowledging that she had the bonds and offering an easy settlement to this matter by having the heirs assign the savings bonds to the State of Maine. In this letter he also indicated that Allmeda was the proper heir to assign the bonds.
[?14] On January 17, 2001, Hale responded to Hunt and set out the family genealogy. The letter clearly indicated that Ernest was Eldora's only child, and that Ernest and Allmeda had five children. The letter included the names and addresses of the five children.
[?15] Hunt waited eighteen months before taking any action. Because Eldora died on September 15, 1996, Hunt had until September 15, 2002, to finalize the matter without filing any legal action. Even though Hale spelled out to Hunt the proper genealogy in her January 17, 2001, letter, Hunt still thought he had to have Allmeda rather than the five children assign the bonds to the State of Maine. On or about June 27, 2002, eighteen months after Hale's letter, which clearly referenced that she was representing Eldora's estate, Hunt contacted Allmeda by letter trying to set up a meeting at the Machias Savings Bank In that letter Hunt stated that he understood that she had agreed to assign the bonds owned by her late "mother." On July 20, 2002, Hunt sent Eric a letter, once again referring to Eldora's estate. In this letter he attempted to set up a meeting with Allmeda at the Machias Savings Bank to have her sign over the bonds. This meeting was to take place on July 30, 2002. In a follow-up letter, also dated July 20, 2002, but obviously later than the previous letter, he again tried to set up another meeting at Machias Savings Bank with Eric and his mother on August 19, 2002. These phone calls and letters to Allmeda and Eric during the month of July 2002 occurred after Hunt had received a letter from Attorney Hale clearly indicating that she was representing the estate of Eldora Bourgeois. In September of 2000, Hunt had sent a letter to Hale and in that letter he made reference to the fact that he had talked to Eric Bourgeois and said, it was "before I knew of your involvement." This clearly indicates that he knew almost two years prior to these contacts in July of 2002 that Allmeda and Eric were represented by Hale. These contacts represent a violation of M. Bar R. 3.6(f), which prohibits contacting an adverse party who is represented.
[?16] Nothing was resolved by these improper contacts. Hunt then learned in August of 2002 that Virigina Holt was replacing Hale as the estate's attorney. He wrote a letter to Holt on August 16, 2002. In a letter dated August 17, 2002, Holt notified Hunt that she and Hale did not believe that Allmeda was the proper heir to assign the bonds to the State of Maine. They were of the opinion that the five children of Ernest and Allmeda were the proper heirs to assign the bonds. In this letter, Holt attempted to set out the legal reasoning behind this opinion. However, she did set out a possible scenario in paragraph five of the letter where Ernest may have acquired an interest in the bonds because his mother physically gifted them to him. As stated earlier, this is a mistaken opinion of the law in this area.
[?17] It is obvious that Hunt was feeling the pressure of the statute of limitations coming up on September 15, 2002. This Court believes that he filed the complaint on August 22, 2002, because he had to take legal action before the statute of limitations had run. However, he failed to exercise reasonable care in that he failed to realize that Allmeda was not the proper legal party to assign the bonds. He should have researched the issue before he brought suit. Two attorneys had alerted him to the fact that Allmeda was not the heir entitled to the bonds, but that it was the five children. Nevertheless, Hunt brought suit against the wrong party when he should have known that this was not a legal cause of action. Apart from the sloppiness of the complaint that will be discussed below, the Court finds that Hunt honestly, but mistakenly, believed that, Allmeda was the proper party. If he actually knew that she was not the proper party, it does not make sense why he would not include the five children as alternative defendants to the complaint. Everyone associated with Eldora's estate was willing to sign over the bonds to the State of Maine, but Hunt did not use the various vehicles he had available to him within the eighteen month period to resolve this case. He got short on time and brought suit against the wrong party. This was a failure to exercise reasonable care and skill in the performance of his professional services. His actions were a violation of M. Bar R. 3.6(a). The Court has reviewed the conduct pursuant to an objective standard that is assessed on the standard of the judgment that would be brought to the action by a lawyer of ordinary skill and competence. Restatement (Third) of The Law Governing Lawyers, ? 5 cmt. d (2000).
[?18] However, the Court does not find that this was done with the intent to harass or injure Allmeda. If Hunt knew what the law was in this area, as he should have known, he easily could have started a legal action against the five children to protect the DHS's rights. Therefore, the Court finds and concludes that Hunt did not commence action against Allmeda to harass or maliciously injure her in violation of M. Bar R. 3.7(a).
[?19] As to the complaint itself, it contains two counts. The caption erroneously refers to Declaratory Judgment Act as 14 M.R.S. ?357I. Section 3571 is the Fraudulent Transfer Act, not the Declaratory Judgment Act. The caption also refers to Medicaid fraud as 22 M.R.S. ?14. This is also inaccurate as section 14 is the MaineCare recovery section; section 15 is the fraud section.
[?20] The complaint itself also contains inaccurate references. Count I is entitled fraud and declaratory judgment. However, the allegations contained in Count I do not contain the necessary specific allegations of fraud; it is not clear what type of fraud action Hunt is bringing in Count I. In Count II Hunt makes reference to Medicaid fraud, but the complaint's statutory reference is 22 MR.S. ?14, which is the MaineCare recovery section and not the fraud section.
[?21] The body of the complaint does not contain any specific allegations of fraud, it erroneously alleges that Eldora and Ernest Bourgeois were the owners of the U.S. savings bonds, and improperly asks for attorney fees in its demand.
[?22] Count II is labeled Medicaid fraud, but does not make reference to 22 M.R.S. ?15. Furthermore, it does not contain any factual allegations that would refer to the fraud section.
[23] The Court finds and concludes that Hunt failed to exercise reasonable care and skill in the preparation of this complaint by making erroneous references to statutory law, by failing to include specific facts alleging fraud, and by improperly asking for attorney fees when he was clearly not entitled to attorney fees. It is clear to this Court that Hunt hastily put this complaint together to get it filed before the statute of limitations expired.
[?24] Furthermore, alleging fraud against another individual by a State of Maine agency is a serious matter and Hunt should have taken the necessary steps to ensure that the complaint complied with proper legal principles. In addition, Hunt did not have any evidence that there was any fraud in this case. This case involved confusion as to who was to sign over the bonds, but this was due to Hunt's mistaken belief that Allmeda was the proper heir in this case. There is absolutely no reason for Hunt to allege fraud, common law or statutory, against Allmeda. As a result of the legal actions taken by Hunt, the Court finds that he violated M. Bar R. 3.6(a) by failing to exercise reasonable care and skill in the preparation of the complaint filed against Allmeda Bourgeois.
[?25] This Court finds that the actions by Hunt were not intended to harass or injure anyone, rather the Court finds that this action was the result of his failure to exercise reasonable care and skill by (l) not knowing the law; (2) not preparing the complaint in proper form; (3) not taking the necessary steps to amicably resolve this issue because all of the parties agreed that the Department was entitled to receive the bonds; and (4) waiting too long to resolve this issue. Hunt was confused and erroneously believed different things at different times regarding Allmeda's position. While it is true that the fact that the attorneys representing the estate continued to negotiate with Hunt lead to the confusion, it is clear that the five children of Ernest and Allmeda were the heirs that legally had the right to assign the bonds. It is not clear why the attorneys for the estate continued to negotiate with Hunt after he filed the complaint against Allmeda and the statute of limitations had passed. These negotiations help to explain why Hunt has not dismissed this action against Allmeda. It adds some credibility to his mistaken belief that Allmeda may have had some legal or equitable right to the bonds. Whatever reasons the parties continued to negotiate, this Court finds and concludes that Hunt has mishandled this matter from the very beginning and should have known that Allmeda was not the proper party to sign over the bonds and should have found a way to resolve this matter well before the statute of limitations. His mistaken belief that she was the proper party to sign over the bonds lead to this confusing state of events in the estate of Eldora Bourgeois.
[?26] This Court finds and concludes that Hunt did not violate M. Bar R.3.2(f)(3), 3.7(b), or 3.7(e) because the Court is convinced that he was not dishonest in his dealings with the court and the parties, only mistaken.
[v27] Further, the Court finds and concludes that he did not violate M. Bar R. 3.2(f)(4), conduct prejudicial to the administration of justice. This section is a catchall without any specific references to conduct that would come under this section. Because this Court finds that Hunt's violations were in the nature of negligence rather than intentional conduct, this Court concludes that Hunt did not violate this Rule.
[?28] For the reasons stated above the Court finds and concludes that Hunt did violate M. Bar R. 3.6(a), failure to exercise reasonable care and skill, and M. Bar R. 3.6(f), communicating with adverse party while represented.
[?29] The allegation that he violated M. Bar R. 3.6(d), advising violation of law, was dismissed during the trial.
[?30] This matter will now be scheduled for a hearing regarding sanctions that should be imposed for the violations alleged and proved.
For the Court
Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court
Footnotes
1The Department of Human Services has since been renamed the Department of Health and Human Services.
Amended Order
Pending before this court is the Defendant's Motion For Correction of or Relief From Decision. A hearing on said motion was held on March 1, 2010. By agreement of counsel, the affidavit of Melissa Hale (Defendant's Exhibit 1) was admitted.
After considering the affidavit of Attorney Melissa Hale and arguments of counsel, the court hereby Grants the Defendant's motion. The court's decision dated January 29, 2010 is hereby amended to delete the court's finding and conclusion that the defendant violated M.Bar R. 3.6(f), communicating with adverse party while party is represented by counsel.
For the Court
Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court
Date:
3/10/2010Board of Overseers of the Bar v. L. John Castner, Esq.
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Docket No.: BAR-00-3
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 5, 2001
Respondent: L. John Castner, Esq.
Bar Number: 000940
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
DECISION AND ORDER
L. John Castner, a member of the Maine Bar who has been the subject of an investigation by the Board of Overseers of the Bar, has tendered his resignation from the Bar. The Board has forwarded that tender to this court along with its unanimous recommendation that the court accept the resignation. Accompanying the Board's filing is Castner's affidavit required by M. Bar R. 7.3(g)(1). Castner's resignation is the result of his admission that he violated several Bar rules in the course of his financial dealings with an elderly client.
The family of the elderly client (she is now deceased) has moved to intervene in the proceedings for the limited purpose of augmenting the record regarding Castner's misdeeds. Specifically, the family is concerned that the rule requiring Castner's affidavit to be kept under seal, M. Bar R. 7.3(g)(3), will prevent the court from understanding the full nature of Castner's actions. The family does not, however, oppose the resignation.
A hearing was held at which the Board was represented by Attorney Karen Kingsley, Castner was represented by Attorney Kenneth Clegg, and the Fosters were represented by Attorney James McNiff II. Castner and Jonathan Foster were both present. Except for brief questioning of Castner by the court, no testimony was presented. The court heard at length from Attorney McNiff and briefly from Jonathan Foster. Attorneys Kingsley and Clegg also spoke briefly. For the reasons set out below, the petition for extraordinary relief is granted in limited form: the court has undertaken an in camera review of the Fosters' statement under seal. L. John Castner's resignation is accepted by the court.
BACKGROUND
Castner is a sixty-eight-year-old graduate of Bowdoin College and Portland University1. He passed the Bar in 1957 and was admitted to practice in August of that year. He has been engaged in the practice of law since then, with the exception of a brief hiatus during the, 1960s. In recent years, he has practiced as a solo practitioner in South Berwick. His practice has dwindled over the last several years, and he represents to the court that he is, for all practical purposes, retired. He has not been the subject of any disciplinary proceeding prior to the one at bar.
In the late 1980s, Castner became acquainted with an elderly woman named Juliette Worster. He represented her as the personal representative of her deceased sister's estate and became extensively involved in Worster's own estate planning and finances.
After Worster died, a dispute arose between Castner and Jonathan and Philip Foster, relatives of Worster who became the personal representatives of her estate. The gravamen of the dispute centered on allegations that Castner had abused his position of trust with Worster and had thereby misappropriated her property. Eventually, the parties entered into a comprehensive settlement. Both Castner and the Fosters were represented by counsel throughout the negotiations and in entering into the settlement. The settlement was finalized on June 9, 2000. It contained a confidentiality clause prohibiting the Fosters from disclosing matters related to their dispute with Castner, unless compelled to do so by a lawful order of the court.2 The Board of Overseers of the Bar was neither a participant in, nor a signatory to, the settlement agreement. The agreement recognized that Castner "will attempt to reach an agreed on disposition of the disciplinary proceeding presently pending against Castner before the Board of Overseers of the Bar."
II. PROCEDURAL HISTORY OF THE CURRENT PROCEEDINGS
Castner and the Board did reach an agreed upon recommendation to the court. 3 Three months after the parties had settled their dispute, the Board forwarded to the court Castner's resignation along with its own unanimous recommendation that the court accept the resignation.
Shortly thereafter, Attorney McNiff, on behalf of Jonathan and Philip Foster, filed a petition for extraordinary relief "for the limited purpose of introducing into the record ... their written statement of what they believe to be the facts underlying their recent settlement of all claims against L. John Castner, Esq." In essence, the Fosters sought to have the court compel them to disclose that which they had bound themselves not to disclose in the settlement agreement. They included with their petition a document under seal setting out the facts that they believe the court should be aware of in making its decision on the pending proposed resignation. In their petition, the Fosters specifically asserted that they are "not urging any particular sanction or disposition."
Both the Board and Castner opposed the Fosters' petition, and the Fosters filed a lengthy reply, augmenting their argument that resignation pursuant to Rule 7.3 is not available to Castner and that the Maine Bar Rules' provision regarding the sealing of the resigning attorney's affidavit is outmoded. A hearing was held on December 6, 2000. At the hearing, the Fosters confirmed that they do not oppose Castner's resignation from the Bar. Rather, they seek only to augment the record regarding Castner's misconduct. Although they would prefer that the court compel them to release the information so that it will be a part of the public record, they indicated through counsel that they would be satisfied with the court's in camera review of the documents they had submitted under seal.
III. DISCUSSION
A. Application of Rule 7.3(g)
Preliminarily, I reject the Fosters' argument that, because the matter had already proceeded to a probable cause finding pursuant to Rule 7.1(d), Castner may not tender his resignation pursuant to Rule 7.3(g). The phrase used in Rule 7.3(g) "[a]n attorney who is the subject of an investigation under these rules," upon which the Fosters' argument rests, was not intended to distinguish between different phases of a disciplinary proceeding. Indeed, Rule 7.3 provides the only procedure under which an attorney who is the subject of any disciplinary action by the Board may resign from the Bar.
I also find the Fosters' argument regarding the wisdom of impounding the resigning attorney's affidavit pursuant to Rule 7.3(g)(3) to be unavailing. The rule currently in effect in Maine requires the impoundment. M. Bar R. 7.3(g)(3). Arguments that the rule should be amended prospectively may have sound reasoning behind them, but are of no efficacy here.4
B. Augmenting the Record
At the outset, it should be made clear that the Fosters were given a full opportunity to speak during the hearing and to provide the court with whatever information they chose. This court treated the matter as loosely analogous to a criminal sentencing, with the Fosters standing in the position of the victim. Neither the court nor the Board prevented the Fosters from offering whatever information or documents they deemed pertinent to the court's decision. Thus, it was the Fosters' own decision to enter into the settlement agreement and their concerns about the private consequences of breaching that agreement that prevented their straightforward presentation to the court in this matter.
Moreover, it is not entirely clear what the Fosters are actually seeking from this court. Although they argue that the rules do not permit Castner to use Rule 7.3 to resign, they also assert that they do not object to his resignation.6 The Fosters' only requested relief is set forth in the alternative on page twelve of their petition: the entry into the record, in one form or another, of their attorney's affidavit filed under seal with the court. In other words, notwithstanding their agreement with Castner, they now wish to augment the court?s record regarding the nature of Castner?s misdeeds.
In the context of the settlement agreement, the Fosters received substantial financial remuneration from Castner. They do not claim that they have not been made whole. Were the Fosters' interests the only interests at stake here, the court would conclude that the settlement agreement and Castner's resignation from the Bar would be fully sufficient to protect those interests. There is more at stake, however, than the Fosters' interests alone. The interests of the public must be considered. Ultimately, because of the overarching responsibility of this court to the public, I have concluded that the Fosters' statement must be reviewed in camera to determine' (1) whether its contents would cause me to consider rejecting Castner's voluntary resignation from the Bar or (2) whether its contents should be compelled to be released publicly. Therefore, I have reviewed the documents provided under seal, as requested by the Fosters.7
The documents submitted by the Fosters under seal include the affidavit of Attorney McNiff, along with a series of exhibits, at least two of which are public records. The affidavit tracks the history of the dispute between the Fosters and Castner and relates in specific detail the steps and discussions of the settlement negotiations between the parties and their counsel. In particular, it sets out Attorney McNiffs thought processes and actions in the course of those negotiations. It also sets forth Attorney McNiffs understanding of the history of Juliette Worster's relationship and financial interactions with Castner as well as his understanding of the dismay and distress suffered by his clients during the process of resolving the dispute.
The contents of the McNiff affidavit are fully consistent with Castner's final resignation from the Bar. The only remaining question then is whether the court should compel the public release of the sealed documents. A review of the important public interests at stake lead the court to conclude that no such order to compel is justified.
Because the Bar rules are intended to protect the public, not to punish or humiliate attorneys, this court must reject any effort to augment the record based solely on a desire to achieve further public excoriation of Castner. See M. Bar R. 2(a). Nonetheless, this court does not treat lightly the Fosters' concerns that the public may be ill served by a process which allows an attorney who has been under investigation to resign without the creation of a meaningful record of the factual background resulting in the resignation. The public's interests take several forms in the context of this proceeding.
1. Prospective Clients
Rule 7.3(g) is written with the evident intent of protecting prospective clients of a resigning attorney should that attorney seek readmission to the Bar. See M. Bar R. 7.3(g). In the absence of a clear written record of the reasons for the resignation, an attorney could be inappropriately readmitted to practice or readmitted without sufficient safeguards for the public. That concern is not applicable to the facts before the court.
Castner is sixty-eight years old. He has retired from practice and has assured the court that he will never again attempt to become a member of the Bar. Because Castner will not practice law again, there is no risk to the public that his impounded affidavit is insufficiently detailed to protect prospective clients should he seek reinstatement. In addition, the Castner affidavit has been reviewed by this court and does contain sufficient detail to apprise a future court of the nature of Castner's misconduct should the unexpected come to pass. Furthermore, any court asked to consider a request for reinstatement will be aware, through the contents of this order, of Castner's representations to this court that he does not intend ever to practice law again.
2. Protection and Recompense for Victims
The Bar rules are also generally designed to protect the attorney's current clients as the victims of the misconduct. The Fosters, standing in the shoes of Worster, had ample opportunity to present their claims to the Board and entered into a comprehensive settlement of their financial claims against Castner. They do not assert that any other action need be taken on their behalf. Thus, further public augmentation of the record will serve no purpose in protecting the Fosters.
3. Other "Unidentified" Victims
It is on behalf of the possible unidentified victims of other unrevealed misconduct that the Fosters assert the court must act.8 Specifically, they "raise questions of whether or not further investigation of Castner is called for and whether or not charges should issue under anyone or more of several Maine criminal statutes."
The specific body charged by the court with the oversight of the profession is the Board of Overseers of the Bar. The Board represents that it is well aware of the Fosters' concerns in this regard. Further, the Fosters had ample opportunity to make all of their concerns and facts known to the Board. If further investigation regarding other clients is necessary' or appropriate, the Board may take that action. The Board may also make any referral to a law enforcement agency that it deems appropriate. M. Bar R. 7.3(k)(4). In the context of this disciplinary proceeding, publicly augmenting the court's record to include Attorney McNiffs understanding and conclusions regarding the specifics of Castner's misconduct relating to Worster will not advance that cause.
4. The Public's Confidence in Bar Discipline Proceedings
An underlying concern in any Bar disciplinary proceeding must be the public's confidence in the Bar discipline process. Here, the Board of Overseers of the Bar acted appropriately to investigate the Fosters' allegations regarding Castner's misconduct. Castner has now tendered his resignation from the Bar. He will not practice law in this state again. The Fosters have been made whole through their settlement agreement. The nature of Castner's misconduct, as well as his representation that he will not ever request readmission to the Bar, are reflected in this order, which is a public document. Attorney McNiffs recitation of his understanding of Castner's financial misdeeds would merely gild the lily. Such a purpose does not warrant the exercise of the court's authority to circumvent the agreement of the parties.
III. CONCLUSION
L. John Castner has admitted that he engaged in serious violations of the Maine Bar Rules. He has tendered his resignation from the Bar. He has told the court that he will not attempt to engage in the practice of law again. He has compensated the relatives of Juliette Worster and has resolved any disputes with her heirs through a settlement agreement. The court has reviewed the Castner affidavit, the McNiff affidavit, and the unanimous recommendation of the Board that the resignation be accepted.
The court accepts the resignation of L. John Castner from the Maine Bar. The court has granted the petitioners' motion for in camera review of the McNiff affidavit and exhibits. To the extent that the petitioners also request an order compelling them, contrary to the terms of their settlement agreement with Castner, to publicly release those documents, that request is denied. Pursuant to the requirements of Rule 7.3(g)(3) the affidavit of L. John Caster shall remain impounded. The affidavit of James McNiff II submitted under seal shall remain under seal. In the unanticipated event that Castner applies for reinstatement to the Bar, the court may, in its discretion, order the release of either or both affidavits.
This order shall be a matter of public record, pursuant to Rule 7.3(g)(3). Castner shall comply with the requirements of Rule 7.3(i).
For the Court
Hon. Leigh I. Saufley, Associate Justice ? Maine Supreme Judicial Court
Footnotes
1.1. The background has been taken from Castner's affidavit which has been reviewed and approved by the Board, from Castner's statements (not under oath) at the hearing, from the arguments of counsel, and from the pleadings of the parties
2. The Fosters also agreed that "they will take no position and make no comment for or against any effort to obtain a court order, the outcome of which would cause the disclosure of any information subject to this confidentiality agreement"; that they would "not now or at any time in the future seek. solicit or in any way encourage the criminal prosecution of Castner nor will they make any new or additional complaints to any disciplinary authority pertaining to Castner and his involvement with Juliette C. Foster and/or her Estate"; and that they "will not? express any opinion or make any statement to any Judge, prosecuting authority or disciplinary body concerning any sanction, punishment or sentence which may subsequently be assessed imposed or otherwise levied against Castner .... "
3. Any such agreed recommendation is always subject to the approval or rejection of the court. M. Bar R 7.3(g)(2).
4.The Fosters filed extensive arguments on this issue and included as exhibits excerpts from a 1970 report of the American Bar Association entitled "Problems and Recommendations in Disciplinary Enforcement," and excerpts from the ABA's 1992 Report on the Commission on Evaluation of Disciplinary Enforcement, entitled "Lawyer Regulation for a New Century,". The reports demonstrate an emerging philosophy that the there should be greater public' disclosure of and access to disciplinary proceedings in order to foster greater public trust in the system of lawyer discipline. The current Maine Bar Rules balance the competing interests obtaining swiftly and at the least cost the resignation of an attorney who should not be practicing law, -and the public's need to have full disclosure of the details leading to the resignation-by impounding the attorney's own affidavit but making public the court's final order accepting the resignation. Changes in that balance must be made through an amendment to the rules.
5.At the hearing, Attorney McNiff argued that the Fosters were surprised by the agreed upon resignation recommendation. McNiff argued that the Fosters were misled by a letter from the Board, following the probable cause hearing setting out the next anticipated steps in the disciplinary procedure. That letter was sent to the Fosters on April 20. 2000. The settlement agreement was entered into on June 9. 2000. Given the settlement agreement's explicit recognition that Castner would be attempting to reach an agreed upon resolution with the Board, the current proceedings were clearly within the contemplation of the parties at the time they entered into the agreement.
6.The Fosters apparent objection to the Rule 7.3(g) procedure is the impounding of the resigning attorney's affidavit now wish to augment the court's record regarding the nature of Castner's misdeeds.
7.In so doing, I have neither compelled their production, nor required their release in any fashion. At the hearing with the parties agreeing that the provision of the materials to counsel for Castner would not constitute a breach of the agreement., the Fosters provided a copy of the sealed documents to Castner?s attorney at the court?s request. The court understands that the Fosters also provided a copy to counsel for the Board.
8.The McNiff affidavit briefly references another now deceased client of Castner. The personal representatives of her estate are represented by Attorney McNiff who indicates that those matters are proceeding separately in Probate Court.
Board of Overseers of the Bar v. Timothy M. Vogel, Esq.
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Docket No.: GCF 07-200; GCF 07-358
Issued by: Grievance Commission
Date: June 19, 2008
Respondent: Timothy M. Vogel, Esq.
Bar Number: 002700
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Neglect; Conduct Prejudicial to the Administration of Justice
STIPULATED REPORT OF FINDINGS and SANCTION ORDER PANEL B OF THE GRIEVANCE COMMISSION
This disciplinary proceeding was commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 25,2008.
On June 19, 2008 after due notice, Panel B of the Grievance Commission pursuant to Maine Bar Rule 7. 1 (e)(2)(E) reviewed this Stipulated Report of Findings and proposed sanction order concerning misconduct by the Respondent, Timothy M. Vogel, Esq.
Timothy M. Vogel, Esq. was represented by Peter J. DeTroy, III , Esq. and the Board was represented by Assistant Bar Counsel, Aria eee. The complainants Diane Clay and Stephen Sneider have been provided with a copy of this Report (in its proposal form) and have advised Bar Counsel that they did not plan to attend the hearing before Panel B. The parties have stipulated to the findings and to the sanction order set forth herein and have submitted the Report and Sanction Order for the review and consideration of the Grievance Commission Panel.
Having reviewed the Stipulated Disciplinary Petition and the Stipulated Report of Findings, the Panel makes the following disposition:
FINDINGS
Respondent Timothy M. Vogel (Vogel) of Portland, County of Cumberland, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Vogel was admitted to the Maine bar in 1983 and he is a member in good standing.
On July 5, 2007, Ms. Diane M. Clay filed a complaint with the Board against Attorney Vogel. The complaint alleged that after their initial meeting in October 2006, Attorney Vogel failed to perform any work on her legal matter. Ms. Clay further alleged that Vogel inadequately communicated with her about the matter and failed to respond to her inquiries.
On October 29, 2007, Mr. Stephen Sneider complained about Attorney Vogel's work on a probate matter involving the estate of Mr. Sneider's father. From November 2005 until the present, Attorney Vogel has acted as Co-Personal Representative with Mr. Sneider. The complaint detailed Sneider's concerns that Vogel failed to administer the estate in a timely fashion and failed to sufficiently communicate the status of the estate to its beneficiaries.
Through counsel, Attorney Vogel properly responded to the complaints filed by Ms. Clay and Mr. Sneider. Thereafter, separate Panels of the Grievance Commission reviewed the matters and found probable cause for disciplinary action on both matters before a third Panel of the Grievance Commission.
As set forth in the stipulated Disciplinary Petition, Assistant Bar Counsel and Respondent by counsel, Attorney DeTroy agreed generally that Respondent engaged in misconduct in violation of specific portions of the Code of Professional Responsibility and that discipline by reprimand is appropriate.
Attorney Vogel acknowledges that he failed to perform any further work on Ms. Clay's estate planning matter, following their initial consultation. He also agrees that his lack of communication was unprofessional and unfair to his client, given her reasonable expectations. Attorney Vogel agrees that such lack of communication was a violation of Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.6(a)(1)(3) (requiring a lawyer to keep the client informed and not neglect the client's legal matter). Attorney Vogel did refund Ms. Clay's retainer and apologized for his lapses.
Additionally, Attorney Vogel committed conduct unworthy of an attorney when he administered the Sneider estate in an untimely manner. Vogel agrees that his other commitments and at times, poor practice management procedures have negatively affected his clients. His failure to explain those circumstances to the Sneider family or to act more expeditiously caused unintended delays for the probating of the estate. As a result Attorney Vogel engaged in conduct prejudicial to the administration of justice. See M. Bar R.3.2(f)(4).
After the filing of the complaint by Stephen Sneider, Vogel acting at Co-Personal Representative completed administration of the estate including: sending a final estate accounting to the two heirs, Stephen Sneider and his brother Jay, which they accepted and filing a closing statement with the Probate Court. To reduce costs to the estate, Vogel completed administration of the estate at no charge.
CONCLUSION AND SANCTION
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Vogel's above-outlined misconduct, Mr. Sneider incurred additional expenses and frustration. Ms. Clay suffered similar frustration at Attorney Vogel's failure to perform the work or respond to her inquiries.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. The panel notes that Attorney Vogel is an elder law attorney of long practice in Maine. He has taken responsibility for his actions and the delays occasioned to Ms. Clay and Mr. Sneider. Attorney Vogel recognizes his violations of the Code of Professional Responsibility and asserts his intention to refrain from future transgressions.
By signature of his counsel, Attorney Vogel hereby waives the right to a hearing under Maine Bar Rule 7.1 (e) and further waives the right to file a petition for review under Maine Bar Rule 7.2{a).
Panel B of the Grievance Commission hereby accepts and approves Stipulated Report of Findings and Sanction Order and issues a public reprimand to Timothy M. Vogel, Esq. as provided by M. Bar R. 7.1(e)(3)(c).
For the Parties
Aria eee, Assistant Bar Counsel
Peter J. DeTroy III, Esq.
For the Commission
John R. Bass II, Esq., Chair
Susannah White
Maurice A. Libner, Esq.
Board of Overseers of the Bar v. Thomas Hallett, Esq.
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Docket No.: GCF 06-259; GCF 07-312
Issued by: Grievance Commission
Date: December 4, 2008
Respondent: Thomas Hallett, Esq.
Bar Number: 003142
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice
DECISION AND ORDER
Pursuant to Maine Bar Rule 7(c).and with due notice a hearing was held in Portland, Maine on November 20, 2008 before the undersigned members of the Grievance Commission. The Board of Overseers of the Bar was represented by Bar Counsel Scott Davis, Esq. Respondent was represented by Peter DeTroy, Esq. The panel selected to hear this matter is comprised of Attorney Maurice Libner (Chair).Attorney Martica Douglas and lay member, Susannah White.
The subject of the hearing was a Disciplinary Petition dated July 1, 2008 asserting two counts against the Respondent attorney. Count 1 asserted that Respondent transgressed Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(a) during the course of litigation originating in Maine's federal district court, captioned Roger Edwards, LLC v. Fiddes & Sons, Ltd. United States Magistrate Judge David Cohen found that Respondents unsuccessful Rule 60(b) motion to set aside a judgment violated F.R.Civ.P. 11(b). That rule forbids attorneys from filing pleadings for any improper purpose, that are frivolous, or are without actual or potential factual support. His order was affirmed on Respondent's appeal to the First Circuit, which also found the appeal to violate F.R.A.P.38.
Count II of the Disciplinary Petition charges that Respondent attorney violated Maine Bar Rules 3.1(a); 3.2(f)(4); 3.7(a); 3.13(a)(1), (2), (3)(i) and (ii)1 in another, unrelated case, involving a mental health counselor named Steven Danzig. At a period of time when Respondent was the exclusive owner of his law practice, an associate attorney he employed named Michael Whipple requested Mr. Danzig's treatment records for one of his clients, to use in an upcoming sentencing hearing. Danzig and Whipple were in disagreement over what was reasonable compensation for furnishing these records, with the result that Danzig received no payment at all.
The panel considered testimony by three witnesses: Respondent, Steven Danzig, and Michael Whipple. The panel also received without objection 16 Exhibits offered by Bar Counsel, and 8 Exhibits offered by Respondent. (Due to the confidential nature of Respondent's Exhibit #8, the medical records at issue in Count II, it was stipulated that this document would be returned to Respondent following this decision.)
With respect to the charges in Count I, the panel concludes that Respondent should be reprimanded for violating Maine Bar Rules 3.1(a) and 3.2(f)(4). However, we find that Rule 3.7(a) was not violated. Regarding Count II, the panel concludes that there was no violation of any Bar Rule, and that the charge should be dismissed. Our reasoning leading to these conclusions is explained in the following paragraphs.
Count I
The litigation underlying the charges in Count I ensued following the collapse of a commercial relationship between Respondent's client, Roger Edwards, LLC ("Edwards") and Fiddes & Son, Ltd., ("Fiddes") a British manufacturer of wax products. The original suit sought damages exceeding one million dollars from Fiddes for the alleged breach of an exclusive distributorship contract for Briwax, a Fiddes product. Fiddes counterclaimed for the price of products that Edwards received but had not paid for.
Respondent Hallett and his law firm did not represent Roger Edwards, LLC until after discovery was finished. Respondent's client, Roger Edwards, LLC, was owned by Larry Mann, who hired Hallett in December 2004 to defend Fiddes' summary judgment motion. Fiddes was awarded partial summary judgment, and the remaining issues in the case were tried by jury, resulting in a verdict favorable to Fiddes on all counts, including a monetary award for the counterclaim. Edwards appealed to the First Circuit, which ultimately sustained the judgment of the lower court. Board Exhibit #3
During the pendency of this first of its three appeals, Respondent moved to reopen the judgment of the trial court under F.R.Civ.P. 60(b), alleging that Fiddes had defrauded Edwards and the trial court by mislabeling Briwax and by offering false evidence regarding the legal sufficiency of the product labeling. Magistrate Cohen denied the Rule 60(b) motion, holding that the product labeling was apparent to Edwards from the outset of the litigation, whose failure to raise this issue earlier in the litigation was not caused by any misconduct of Fiddes and which, in any event, did not affect the outcome of the case. Board Exhibit #5. The District Court subsequently granted Fiddes' motion for its legal fees and costs in defending the Rule 60(b) motion, which the District Court held violated F.R.Civ.P. 11. Board Exhibit #16
Edwards separately appealed the denial of its Rule 60(b) motion and the award of sanctions to the First Circuit, giving rise to a total of three different decisions from that court. Board Exhibits #1 and 4. As indicated above, the First Circuit not only upheld the original award of Rule 11 sanctions, but imposed further sanctions under F.R.A.P. for the two final appeals. Board Exhibit 1.
Respondent testified with candor that he "crossed the line", allowing his professional objectivity to fall victim to unbridled advocacy demanded by his client. He admitted that Larry Mann was probably motivated at least partly by a desire to inflict financial damage on Fiddes when Mann furnished him with a lengthy affidavit by a newly discovered expert on the issue of product mislabeling. (Mann and/or Respondent furnished the United States Department of Transportation with this same information, in hopes of getting Briwax banned from interstate commerce in the alleged interest of "public safety". Mann urged Respondent to use the new labeling information to reopen the adverse judgment. Respondent testified that he accommodated these requests in hopes of obtaining a new trial, not for the mere purpose of damaging Fiddes by disparaging its product or frivolously dragging out the litigation. Having reviewed Respondent's substantive briefs at trial and on appeal of the Rule 60(b) motion, the panel is satisfied that Respondent's subjective intent was never malicious. Therefore, we decline to find a violation of Bar Rule 3.7(a).
However, the Rule 60(b) motion and Respondent's final two appeals constituted conduct "prejudicial to the administration of justice" (M.B.R.3.2(f)(4)) and "conduct unworthy of an attorney" (3.1(a)), for reasons best summarized by the final court of appeals decision, Bar Counsel Exhibit # 1, pp. 9-11 :
We need not decide whether every violation of F.R.Civ.P. 11 or M.R.Civ.P. 11 is per se a violation of the Maine Bar Rules. In this case, substantial judicial resources were expended to defend Respondent's litigation tactics, found to be frivolous both by the trial and the appellate courts. Respondent does not ask the Board to revisit these findings, and we decline to do so. This type of behavior not only needlessly aggravates and unfairly harms the opposing party, but also impairs the courts' ability to efficiently ration justice to the public by wasting scarce judicial resources. In sum, we find Respondent's conduct sufficiently egregious in scope, duration and persistence to warrant a formal reprimand.
Count II
Respondent's associate counsel, Michael Whipple, requested a client's treatment records from Stephen Danzig, a mental health and substance abuse counselor, to be used in an upcoming sentencing hearing. In a letter to Danzig, Whipple's paralegal promised to pay Danzig's "reasonable expenses" for these records. Bar Counsel Exhibit #8. In reply, Danzig declined to release the records unless his patient's $40 unpaid treatment charges were first paid. Bar Counsel Exhibits #9, 10. Whipple inferred that Danzig expected his office to pay for the client's treatment before the records would be released, which could violate Maine Bar Rule 3.7(d).
Whipple then served a subpoena duces tecum on Danzig at his office, compelling the client's medical file to be produced for inspection in Portland, a half-hour drive for Danzig. Whipple did not tender any fee for attendance or mileage, in violation of 16 M.R.S.A. ? 251. Danzig responded to the subpoena by mailing a copy of the records (six pages) to Whipple with a bill for $90.00. Whipple disregarded the invoice, two later faxes of the same bill, and repeated telephone calls to the office by Danzig's wife/bookkeeper. As of the hearing date, Danzig had not been paid anything for providing these medical records to Respondent's firm.
During the course of the hearing, Danzig was asked by counsel for Respondent to explain how he arrived at the charge of$90 for providing six pages of medical records. Danzig testified that he had to drive one hour to get the records at a "remote storage site", which on further questioning turned out to be his home. Danzig was unable to offer a cogent explanation of why he would be justified in billing at a professional hourly rate in bringing records from his home to his office to be copied and mailed. Rule 3.13(a) provides that a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility. Associate attorney Michael Whipple was an experienced attorney at the time of these events. He had his own case load, and worked on the subject case without direct supervision by Respondent. Rule 3.13(a) does not require a partner to supervise every detail of each case assigned to an associate attorney. Danzig and Whipple should have resolved the billing dispute with a phone call and common courtesy. It is unrealistic to expect the managing owner of the law firm, in this instance, to be aware of every disagreement over accounts payable that may arise from the caseload of an associate attorney, and therefore we decline to hold Respondent liable for violating Rule 3.13(a).
It is undisputed that Respondent had no knowledge of the conflict between attorney Whipple and Danzig before he received Danzig's complaint to the Board of Overseers of the Bar. The remaining Bar Rule violations alleged by Bar Counsel are predicated on Respondent's actual knowledge of prohibited conduct. For example, Bar Rule 3.13(a)(3) makes a partner or supervisory lawyer responsible for another lawyer's violation of the Code of Professional Responsibility if:
(ii) the lawyer is a partner in the law firm, in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action." (Emphasis added)
Similarly, Rule 3.3(c) requires knowledge on the part of a lawyer charged with responsibility for non-lawyer misconduct. Since Respondent never had knowledge of any conduct alleged to be prohibited by these Bar Rules, he cannot be held responsible for any infraction. Neither do we find any of the other rules cited by Bar Counsel a basis for disciplinary action against Respondent.
For the Grievance Commission
Maurice Libner, Esq.
Martica Douglas, Esq.
Susannah White
Footnotes
1During the hearing, the parties agreed that the charge against Respondent also entailed a violation of Rule 3.13(c), and this was accordingly tried without objection.
Board of Overseers of the Bar v. Brian Condon, Jr., Esq.
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Docket No.: BAR-08-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 31, 2008
Respondent: Brian Condon, Jr., Esq.
Bar Number: 008588
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment
DECISION AND ORDER
The Board of Overseers of the Bar initiated the above attorney disciplinary matter on August 14, 2008. Based upon the parties' agreement at a subsequent pre-trial conference, this Court accepted their proposal to a stipulated proceeding without formal hearing. Throughout this disciplinary matter, Attorney Brian Condon, Jr. has acted pro se and the Board of Overseers has been represented by Assistant Bar Counsel Aria Eee.
Prior to the final hearing in this case the parties notified the Court that they were in agreement as to sanctions and resolution of the disciplinary charges. The parties submitted a draft order to the Court on October 27, 2008 to memorialize that agreement. Additionally, the Board sent a copy of the proposed Order to the complainant, Ms. Julie A, Dana, who thus far, has filed no response to the proposal.
Following a review of the record and the parties' stipulations, the Court finds the following facts: In a 2006 refinancing transaction by Ms. Dana and her husband, Attorney Condon served as counsel for the bank providing a title commitment regarding the Danas' six (6) parcels of land. Additionally, he acted as closing agent selected by both the bank and the Danas. Attorney Condon drafted the description for the mortgage deed and sold the Danas (who were pro se) an owner's title policy.
From the start of transaction, the Danas did not intend that the new mortgage would include their three (3) separate waterfront lots. The Danas contend that they explained this to Attorney Condon and then took steps to ensure that the appraisal included only the house and the three lots on the house-side of the road. Of note, Attorney Condon did not have a copy of the appraisal at or before closing, and met the Danas for the first time at the closing.
It is the Danas' recollection that Attorney Condon gave assurances at the closing that the deed complied with the mortgage broker's title request, which was in error as that request included all six (6) parcels of land. The Danas? ultimately discovered that the mortgage prepared by Condon included all six of their parcels. Unfortunately, Attorney Condon did not show the mortgage documents to the Danas for their advanced review before the closing; instead he relied on the title commitment sent to the mortgage broker, which was consistent with the broker's request. It is unclear if the broker showed that title commitment to the Danas prior to the closing.
After the closing, the Danas were required to escrow their real estate taxes. They experienced negative financial consequences resulting from the mortgaging of all six (6) parcels by having to escrow their real estate taxes for the additional three lots. While Attorney Condon provided subsequent assistance (at no charge) to the Danas to secure the removal of the three (3) lots from the mortgage, he attributed much of the resulting problems to the services provided by their mortgage broker. Of note, if Attorney Condon had included just the three (3) lots in the description, it is anticipated that the taxes would still have been escrowed due to the communication between the mortgage broker and the bank.
Even so, Attorney Condon acknowledges that his failure to then fully appreciate his additional duty to the Danas at the closing and to recognize such a mistake resulted in conduct prejudicial to the administration of justice (See M. Bar R. 3.2(f) (4)). Attorney Condon also concedes that in hindsight, it was a lapse in his usual standard of care. (See M. Bar R. 3.6(a).
The Board and Attorney Condon agree, and the Court so finds that it is imperative for the administrative of justice and for the protection of the public, that the legal community at large is aware of an attorney's ethical duty to borrowers in a mortgage transaction. Regardless of the attorney's representation of a bank in a given transaction, as in this case, the attorney also owes duties to the mortgagor, despite the involvement of other non-attorney professionals.
Based on the facts set forth above, the parties agree and the Court so finds that Attorney Brian D. Condon, Jr. engaged in violations of the following Maine Bar Rules in this matter: 3.1(a); 3.2(f)(4) and 3.6(a).
In determining the appropriate sanctions for these bar violations, the Court must consider Attorney Condon's disciplinary history, including his suspension from practice which was effective and served earlier this year. The Court notes that generally, when a lawyer has been sanctioned for the same or similar misconduct and engages in further acts of misconduct that cause injury to a client, the public, the legal system, or the profession, the appropriate sanction is suspension. ABA Standards for Imposing Lawyer Sanction ?8.2 (1986). See Board of Overseers v. Bruce S. Billings, BAR-90-16 (1991). In this case however, Attorney Condon did not engage in any similar misconduct. Furthermore, the Danas were not Attorney Condon's actual clients, but he agrees that as the closing agent and title insurer, he did owe some responsibility to them within that transaction.
Indeed, as the closing agent for the Danas and the lending institution, Attorney Condon held certain fiduciary duties to ensure that the proper standards of care were provided. The Danas did have definite, reasonable expectations of Attorney Condon's work on behalf of the bank. Given the simultaneous efforts of the mortgage broker, it cannot be said that all of the miscommunication is the fault of Attorney Condon. He has clearly stated his understanding of the scope of his responsibilities, even when he was not retained by the loan mortgagor. Attorney Condon expressed remorse for his lapse and assured the Court that he has a greater appreciation for the increased standards of care he must uphold.
Accordingly, it is hereby ORDERED and ADJUDGED that Brian D. Condon, Jr., Esq. is reprimanded for his violations of Maine Bar Rules 3.1(a); 3.2(f)(4) and 3.6(a).
Finally, Bar Counsel may file an information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Attorney Condon and received by the Board after the date of this Order.
Seen and agreed to by
Aria Eee, Assistant Bar Counsel
Brian D. Condon, Jr., Esq.
For the Court
Hon. Ellen Gorman, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Schuyler G, Steele, Esq.
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Docket No.: BAR-1O-3
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 17, 2010
Respondent: Schuyler G, Steele, Esq.
Bar Number: 002817
Order: Receiver Appointment
Disposition/Conduct:
Order for Appointment of Temporary Receiver M. Bar R 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Rebecca A. Cayford, Esq. and Michael A. Wiers, Esq. are appointed the Temporary Receivers of Attorney Schuyler G. Steele's law practice. With the cooperation of Mrs. Steele (or if necessary, with the assistance of Penobscot County Sheriff?s Department) Attorneys Cayford and Wiers shall:
Attorneys Cayford and Wiers shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at the State court appointment rate. The assets of Attorney Steele shall be the first choice for source of payment to the Receivers, although ultimately, they may serve in a pro bono capacity. Otherwise Attorneys Cayford and Wiers may be compensated from another source ordered by the Court.
Attorneys Cayford and Wiers shall act as Receivers until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
Attorneys Cayford and Wiers so appointed shall not disclose any information contained in any file listed in such inventory without the consent, of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f). Furthermore, Attorneys Cayford and Wiers may be engaged by any former client of Attorney Steele provided that they inform such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorneys Cayford and Wier are subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorneys Cayford and Wier's appointment by this Order.
Attorneys Cayford and Wiers shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law. Within seventy-five (75) days of this Order, the Receivers shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
For the Court
Hon. Ellen Gorman, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Paul A. Weeks, Esq.
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Docket No.: GCF# 09-073
Issued by: Grievance Commission
Date: February 23, 2010
Respondent: Paul A. Weeks, Esq.
Bar Number: 002216
Order: Reprimand
Disposition/Conduct: Neglect
Stipulated Report of Findings and Order of Panel E of the Grievance Commission
On February 23, 2010, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Paul A. Weeks, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on October 21, 2009.
At the hearing, Attorney Weeks was represented by Attorney Peter J. DeTroy, and the Board was represented by Assistant Bar Counsel Aria Eee. Christopher Greer of Dayville, Connecticut did attend the hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Additionally, the Panel accepted and admitted into evidence by agreement of the parties all of the Board?s exhibits.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Paul A. Weeks (Weeks) of Bangor, County of Penobscot, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Weeks was admitted to the Maine Bar in 1980 and he is currently registered as an active Maine attorney.
On February 25, 2009, Christopher and Karen Greer filed a complaint with the Board of Overseers regarding a contract dispute. In 2003 the Greers employed a Maine boat builder to complete and outfit a 36-foot fiberglass hull. The work was never finished and that which was done was not satisfactory. Attorney Weeks was hired in the summer of 2005 by the Greers to recover possession of the boat and to seek damages.
Following depositions and mediation which occurred over approximately two (2) years, a default judgment was granted in favor of the Greers. The Greers submitted information to Attorney Weeks to have him file affidavits outlining their damage claims, but no affidavit was ever filed by Weeks with the court. Hence, the deadline passed in October of 2007 and the court awarded damages to the Greers in the amount of $1.00 plus court costs.
The then effective Code of Professional Responsibility specifically required attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Weeks? above-outlined failures, the Greers were unable to obtain a judgment for the damages they sustained, were misled as to the status of their case and then endured a lack of response to their inquiries. The Panel notes that Attorney Paul A. Weeks has taken responsibility for his lapses. At the disciplinary hearing, Attorney Weeks expressed his remorse for his serious violation of 3.6(a)(3) of the then applicable Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Weeks agrees that he did in fact violate the then effective Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Moreover, given the serious nature of Attorney Weeks? neglect of his clients, the Panel agrees with counsel?s proposal that a monitor should be appointed to review and assist Attorney Weeks with managing his practice. The monitor process shall be implemented for a one year period and the intention is that the monitor shall evaluate all aspects of Attorney Weeks? practice. Those aspects shall include but not be limited to client intake, client communications and disclosure between the lawyer and the monitor of any personal issues, if they arise, that would affect Attorney Weeks? ability to comply with his ethical duties.
Therefore, the Panel accepts the agreement of the parties, including Attorney Weeks? waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Paul A. Weeks, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C)(4). Additionally, Attorney Weeks shall submit his practice of law to the monitoring of Stephen C. Packard, Esq. of Newport, Maine for a period of one year.
For the Parties
Jacqueline L.L. Gomes, Assistant Bar Counsel
Paul A. Weeks, Esq., Respondent
Peter J. DeTroy, Esq., Attorney for Respondent Weeks
For the Panel
Grievance Commission Panel E
John C. Hunt, Esq., Panel Chair
Ann M. Courtney, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. Kathleen T. O'Boyle
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Docket No.: BAR-09-08
Issued by: Single Justice, Maine Supreme Judicial COurt
Date: February 5, 2010
Respondent: Kathleen T. O'Boyle
Bar Number: 008752
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Unauthorized Practice; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment: Neglect of a Client's Matter; Inadequate Preparation; Registration Requirements
DECISION and ORDER
The Board of Overseers of the Bar initiated the above attorney disciplinary action on May 19, 2009 by the filing of a Petition for Receivership. In June 2009 the Board filed a Petition for Temporary Suspension. Based upon their discussions at a subsequent pre-trial conference, the parties notified the Court that they were in agreement to an order providing for stipulated findings and sanction. On February 3, 20 10, the parties appeared before the Court to outline their proposal for resolution of this matter. The Board of Overseers was represented at the hearing by Assistant Bar Counsel Aria Eee while Ms. O?Boyle appeared pro se.
Ms. O'Boyle (O'Boyle) was admitted to the Maine bar in October 1998. Before moving to Pennsylvania in August 2008, she maintained two offices as a solo practitioner in Aroostook County. On June 18, 2009, this Court approved, Ex Parte, the Board's Petition and temporarily suspended Ms. O'Boyle from practicing law in Maine. That suspension remains in effect and currently there are two court-appointed Receivers who have managed the storage and delivery of O'Boyle's closed client files, following the Court's entry of an Ex Parte Order for Appointment of Temporary Receiver.1
Following a review of the pleadings, the exhibits and the parties' proposal, the Court finds that during and after her move from Maine, Ms. O'Boyle engaged in violations of then applicable Maine Bar Rules 3.1 (a); 3.2(a)(1); 3.2(f)(1)(4); 3.6(a)(2)(3); 6(a)(1); 6(e) and 7.3(i)(1)(A)(B). Specifically, at the time of her move, Ms. O'Boyle failed to timely communicate with some of her clients, to properly monitor Ms. Prehemo's legal matter, to pay storage fees at the facility which housed her closed client files and to promptly pay a required refund as issued by the Fee Arbitration Commission. Moreover, it is clear that Ms. O'Boyle continued to communicate with opposing counsel regarding a court matter after her June 19, 2009 suspension. Although it was not her intent to advocate as the client's counsel, Ms. O'Boyle now acknowledges that her continued contact constituted a violation of M. Bar R. 3.2(a)(1).
Based upon all of the above circumstances, the Court imposes upon Ms. O'Boyle a three (3) year suspension from the practice of law in Maine. Additionally, on or before May 25, 2010, Ms. O'Boyle shall pay for all costs ($850.00) related to the Receivers' management of her discontinued practice.
Ms. O'Boyle is also required to pay the remaining $50 of the Fee Arbitration Commission Panel's Award to her former client, Verley Hafford by February 8, 2010. In addition, by July 1, 2010 Ms. O'Boyle shall remit the $295.00 payment owed to Salar Storage in satisfaction of her June 10, 2009 bill. Finally, on or before August 16, 2010, Ms. O'Boyle shall reimburse the Board of Overseers for its entire payment of the costs ($636) it assumed to store her client files and office equipment.
The Court notes that many client files remain housed at the Salary Storage Facility in Caribou, Maine. By April 30, 2010, Ms. O?Boyle shall have implemented a plan to ensure the appropriate management of her client files and she shall report that plan to the Court. Any continued storage after April 30, 2010 shall be the entire financial responsibility of Ms. O?Boyle. After that date and with the Court's approval, Ms. O?Boyle may arrange for removal/transfer of any remaining files to a secure and accessible location approved by the Board. If for some reason it is necessary for the Receivers to continue managing/monitoring client files after April 30, 2010, Ms. O?Boyle shall notify the Court.
Finally, Bar Counsel may file an Information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Ms. O'Boyle and received by the Board after the date of this Order, regardless of whether that alleged misconduct occurred before or after that date.
Accordingly, it is hereby ORDERED and ADJUDGED that Kathleen T. O'Boyle is suspended for a period of three(3) years for her violations of Maine Bar Rules 3.1(a); 3.2(a)(1); 3.2(f)(1)(4); 3.6(a)(2)(3); 6(a)(1); 6(e) and 7.3(i)(1)(A)(B).
For the Court
Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court
Footnotes
1 While the Court notes that the orders were entered before Ms. O'Boyle had an opportunity to respond, the record reflects that the Board sent Ms. O'Boyle copies of its pleadings contemporaneously with its filing of the same.
Board of Overseers of the Bar v. Jeffery J. Clark, Esq.
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Docket No.: BAR-07-02
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 24, 2008
Respondent: Jeffery J. Clark, Esq.
Bar Number: 002240
Order: Reprimand Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conflict of Interest; Conflict of Interest: Lawyer's Own Interest
Decision and Order
This matter came before the Court upon the filing of an information by the Board of Overseers of the Bar. Hearings were held on December 5, 2007, and December 7, 2007, before the undersigned Justice of the Maine Supreme Judicial Court, pursuant to Rule 7.2(b)(2) of the Maine Bar Rules. The plaintiff was represented by Aria eee, Esq., and the defendant was represented by Karen Kingsley, Esq. The parties were afforded a full opportunity to present evidence at the hearings. Additional testimony was submitted through written transcripts by agreement. The parties submitted written memoranda in lieu of closing argument.1
The threshold issue before the Court is whether Attorney Clark violated Rule 3.4(f)(2)(iv) when he prepared a will for his client, Eugenie B. Landry, that included an express bequest from her estate to him.2 Landry executed the will on March 29, 2004. The evidence clearly establishes, and Clark admits, that these facts constitute a per se violation of the rule. Much of the hearing focused on the context of the preparation of the will and the factors to be considered in rendering a judgment pursuant to Rule 7.2(b)(5). Clark asserts he was ignorant of the prohibitions of the rule when he prepared the will and had Landry execute it. The Board asserts that the execution of the will was the result of a knowing effort by Clark to wrongfully appropriate a client's assets to his own use.
Attorney Phillip C Hunt, Esq., was offered by the Board as an expert witness. He testified that the rule prohibiting lawyers from drafting an instrument for a client that directly benefits the lawyer is present in all professional conduct rules.3 It is a well recognized, universal prohibition intended to protect clients from fraud and undue influence. He described it as a "very clear cut, plain rule," which protects clients and the legal profession from circumstances where a conflict of interest impinges upon a lawyer's fiduciary role. He concluded that Clark's failure to secure independent legal advice for Landry prior to the execution of her will constituted a violation of the rule.4
Hunt confirmed the well established tenet that lawyers are presumed to be familiar with the rules governing the practice of law; Clark acknowledges as much in his answer.
FACTS
Jeffrey Clark has practiced law in the State of Maine since 1980. Approximately half of his legal practice involves residential real property work. The remainder consists of small entity creation, wills, and estates. He first met Landry in 1999 when he was contacted by a finance company to prepare a reverse mortgage for her. At the time, Landry owned a small but valuable oceanfront residence in York, but had little by way of cash savings. She sought the reverse mortgage as a way of obtaining funds to sustain herself through her later years.5
Landry had previously been employed as a secretary and nurse's aide at a hospital in New Hampshire. Although she claimed in later life to have been a nurse, it appears that she did not have an educational background in nursing and was never licensed. Elizabeth Melanson, the wife of Landry's nephew Donald Melanson, also worked at the hospital as the director of social work. Landry and her husband, Rene, purchased the York property and built a small house on that site over the course of several years; they eventually retired and relocated there.
Shortly before her husband died in 1998, Landry was diagnosed with multiple sclerosis. Following Rene's death, Landry's health deteriorated and she became essentially housebound, leaving the residence only for medical appointments. She was increasingly dependent on neighbors and friends to meet her needs.
After Clark began his professional relationship with Landry, she apparently shifted her requests for assistance to him, and he basically met all her needs for sustenance and survival. Elizabeth Melanson and a few other family members had sporadic contact and visits with Landry, but by 2003 any contacts were few and far between. Family members were not aware of the marked deterioration in her condition. Melanson visited Landry in the summer of 2004, and attempted to contact her later in the autumn of 2004, but testified that her efforts were deflected by home health care workers that Clark had hired.
Landry was inconsistent in taking her medications, asserting that she had been a nurse and was able to regulate her medications without interference from others. Unfortunately, when she was non-compliant with the prescribed regimen, generally by failing to take medications, her condition would significantly worsen. She would become dehydrated, weak, constipated, and mentally disoriented. These conditions necessitated periodic hospitalizations to restore her to her previous tenuous state of health. After one hospitalization, she was transported to a nursing care facility at Clark's behest. She was very angry and dissatisfied with this accommodation, and eventually returned home.
All witnesses confirmed that Landry could be stubborn, irascible and occasionally mean spirited. Sometimes she would be quite lucid and engaging, but at other times she could be irrational, delusional, and would exhibit signs of dementia.6
Despite Landry's difficult demands and demeanor, Clark visited her regularly and undertook tasks as mundane as shopping for groceries, and as tedious as changing soiled bedclothes. He completed the reverse mortgage transaction and undertook several drafts of wills in which Landry changed beneficiaries regularly. As Clark became more and more integrated into Landry's daily life, he obtained powers of attorney to allow him to handle her financial affairs and make decisions regarding her medical care. Specifically, Clark testified that in 2003, because Landry's condition made it "mentally beyond her" to understand her financial affairs, it was necessary for him to take over paying her bills. Clark and his wife routinely called upon Landry for friendly visits.
Clark testified that in 2003 Landry first broached the idea of including him as a beneficiary in her will. He asserts that he was uncomfortable with this prospect and avoided the subject throughout the remainder of 2003. Clark further testified that in 2003, "She still had the capacity to make decisions when she was not in one of her downward spirals."
Landry was hospitalized in March of 2004 after becoming dehydrated and possibly suffering a fall. Clark testified that she again raised the subject of including him as a beneficiary in her will during this hospitalization. With some misgivings Clark drafted the will and had his law partner meet with Landry in the hospital prior to its execution. He states that he never came across the rule prohibiting this type of bequest and never sought an advisory opinion from the Board of Overseers of the Bar.
The medical notes from this hospitalization cast significant doubt on Landry's mental clarity. At various times during the hospitalization she appeared confused, agitated, rude, and abrasive. The hospital note indicates that a staff member called Clark's office and left a message regarding Landry's circumstances. Although Landry was medically authorized to be released on March 30, 2004, the day after the will including Clark as a beneficiary was executed, she did not wish to return home at that time. She was reportedly agitated and angry at everyone. The nurse's comments reflect that Landry's moods were "volatile today at times then switching to very pleasant." Shortly after her discharge, she was readmitted on April 26, 2004, presenting as "disoriented and confused," stating that she was going to "call the cops," and complaining that "the service at this hotel is terrible."
After Landry was discharged from this hospitalization, Clark arranged for home health care services to provide workers for her daily living needs. He testified that he never instructed the workers to reject attempts by family members to contact Landry. He was in regular contact with Landry's physicians as he exercised her medical care power of attorney. In May 2004, Clark secured twenty-four hour per day home health care coverage for her. Although her condition spiraled downward during 2004, Clark did not anticipate that her death was near.
On November 5, 2004, Landry was admitted to the hospital emergency room for a psychiatric evaluation after she physically assaulted her health care workers at home. The discharge diagnoses included" Alzheimer [sic] disease" and personality disorder, among various other physical ailments. She was apparently declared medically incompetent. Landry was hospitalized again on December 2, 2004, after slashing a health care worker's face with a knife; she was discharged the following day with a diagnosis including delirium, and "blue papered" to the Maine Medical Center for a psychiatric workup. After a final admission to the York Hospital, Landry died on January 30, 2005.7
Clark telephoned relatives to report Landry's death, and arranged a funeral held on February 12, 2005, in Manchester, New Hampshire. He paid her bills and resolved the reverse mortgage. He moved swiftly to process Landry's estate through the informal probate process. The house was sold in June 2005; the estate received net proceeds of $524,000 from the sale. Clark ultimately took $325,000 from the estate.8 He used the money to cover his children's tuition costs and to payoff his mortgage.9
Upon objections by several interested parties, the York County Probate Court ordered the estate to remain open and accepted Clark's resignation as personal representative. The court appointed Eileen Epstein, Esq., as the successor personal representative. Although Clark was initially resistant to the suggestion that he should refund the $325,000 to the estate, he apparently had a change of heart and has fully refunded this amount as of the dates of this hearing.
DISCUSSION
If Clark had not prepared a will for Eugenie Landry designating himself as beneficiary, his actions would have been reflective of the highest ideals of the legal profession. In addition to the usual legal services rendered to a client, he undertook to insure her welfare and well-being. He went far above and beyond the call of duty in ministering to a troubled and infirm elderly woman. Unfortunately, all of his otherwise noble and selfless gestures were vitiated by his blatant, per se violation of one of the most well established prohibitions against conflicts of interest. His claims of humanitarian service, based upon Christian ideals, are rendered hollow by his participation in his client's estate.
The Board suggests that Clark's actions were indicative of a predatory, premeditated plan to ingratiate himself into Landry's affairs, and to secure a share of her estate at a time when she was utterly dependent upon him and probably not completely lucid. While that argument can be made on these facts, the Court declines to accept it entirely. The Court finds somewhat credible Clark's assertion that he became overly emotionally involved with Landry and developed a mother-son relationship with her. When the prospect of sharing in her estate arose, he likely felt some entitlement as a dutiful son might. However, as Landry's attorney his primary obligation, and only legal relationship, was a fiduciary one. This relationship clearly prohibited him from profiting as a beneficiary under the will he prepared. Hence, his stated discomfort over the prospect of being included in Landry's will was well founded.
Regardless of Clark's motivation at the time of the act, no emotional condition can justify it and no claim of ignorance can excuse it. It was a defalcation of major proportions and cannot be taken lightly by the Court. An appropriate disposition must include some period of monitoring to make certain that Clark's claimed emotional susceptibility to elderly clients will not cloud his professional judgment in such matters in the future.
CONCLUSIONS OF LAW
The Court finds that Attorney Clark's conduct violated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct violating any provision of the Maine Bar Rules); 3.2(f)(4) (conduct that is prejudicial to the administration of justice); 3.4(b)(1) (conflict of interest); and 3.4(f)(2)(iv) (preparing an instrument giving the lawyer a substantial gift from a client including a testamentary gift).
SANCTIONS10
Recognizing that the primary purpose of attorney discipline is not punishment, but protection of the public, the Court hereby ORDERS the following sanctions:
(1) Jeffrey J. Clark is reprimanded for his aforementioned violations of the Maine Bar Rules;
(2) Jeffrey J. Clark shall be suspended from the practice of law for a period of thirty (30) days from April 1, 2008, through April 30, 2008;
(3) Jeffrey J. Clark shall, for a one-year period commencing February 1, 2008, provide to Bar Counsel:
description of the legal services rendered to the client within the month preceding the report; and
(b) Upon specific request of Bar Counsel, Jeffrey J. Clark shall provide copies of any written instruments prepared for said clients as identified in the monthly reports;
(4) Nothing in this Order shall constitute a judicial waiver of the attorney client privilege; Bar Counsel shall maintain complete confidentiality of any information or legal instruments produced pursuant to this Order and no aspect of said materials may be disclosed in any public fashion without prior order of the Court.
For the Court
Hon. Andrew M. Mead, Associate Justice ? Maine Supreme Judicial Court
Footnotes
1The Board asserts that the defendant's rebuttal memorandum was submitted late and asks the Court to exclude it from consideration. The Court declines to do so. 2 Rule 3.4(f)(2)(iv) provides:
2A lawyer shall not prepare an instrument giving the lawyer or a parent child, sibling, or spouse of the lawyer any substantial gift from a client, including a testamentary gift except where the client is related to the donee.
3Hunt testified that some states have enacted statutes which expressly render such gifts void unless the donor has received independent legal counsel prior to making the gift.
4The fact that Clark's law partner met with Landry prior to the execution of the will does not meet the rule's requirement that the legal advice be truly independent.
5Landry was approximately seventy-two years old when she begin her association with Clark.
6Landry frequently called the local police with various complaints including conspiracies against her (including conspiracy allegations against Clark). She attacked a health care worker with a knife and severely injured her.
7On January 28,2005, a medical order was issued by Dr. Gagnon indicating that the hospital "will not provide hydration or alimentation as that would be against her expressed wishes."
8Clark continued to draw funds from the estate even after a complaint was filed citing the impropriety of his participation in its distribution.
9After paying off the mortgage on his residence, he conveyed the entire fee ownership to his present wife (whom he married in 2002), apparently over concerns of possible civil claims against himself or the estate.
10Although Clark was the subject of one prior complaint before the Board of Overseers of the Bar, it was dismissed and will not be considered a prior violation for the purposes of these sanctions.
Board of Overseers of the Bar v. Christopher J. Whalley, Esq.
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Docket No.: BAR-07-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October31, 2007
Respondent: Christopher J. Whalley, Esq.
Bar Number: 007370
Order: Suspended Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Withdrawal from Employment; Preserving Identity of Funds and Property; Responsibilities Regarding Non-lawyer Assistants
DECISION AND ORDER
This matter came before the Court pursuant to M. Bar R. 7.2(b) upon the filing of an Information by the Board of Overseers of the Bar. Assistant Bar Counsel Aria eee, Esq. represented the Board and Karen Kingsley, Esq. represented Christopher J. Whalley, Esq. at the September 28, 2007 hearing where the Court heard testimony from various witnesses.
The Court makes the following findings:
This Court further finds that Attorney Whalley violated Bar Rules 3.1(a); 3.5(a)(2); 3.6(a)(2),(3); 3.6(e)(2)(iv); and 3.13(c)(1),(2). Having determined that Attorney Whalley's conduct violated the Bar Rules, the Court must determine an appropriate sanction. The primary purpose of attorney discipline is not to impose punishment, but to protect the public. Although Attorney Whalley's mishandling of the Wiesners' legal matters caused undue stress and significant burdens for the Wiesners, fortunately, the consequences were minor and not of a permanent nature. Attorney Whalley has also indicated his remorse and willingness to take steps to ensure that this never happens again. Given Mr. Whalley's prior disciplinary history, however, this Court has grave concerns about his ability to effectively manage the same caseload and serve clients' needs in the future. In particular, the court found in 2003 that Mr. Whalley had neglected client matters and had failed to timely communicate with clients about case developments as they occurred, similar to the problems that gave rise to the complaint in this case. This court certainly does not demand perfection from all who practice law, but it does require some evidence of a concerted effort and desire to improve when it is determined that an attorney's approach to client relations and case management is so obviously dysfunctional. It further concerns this Court that Attorney Whalley is uninsured for malpractice.
Accordingly, it is hereby ORDERED and ADJUDGED that Christopher J. Whalley, Esq. be suspended from the practice of law in the State of Maine for a period of thirty (30) days, but that suspension itself shall be suspended for a period of one year under the following terms and conditions:
Mr. Whalley shall submit his practice of law to the monitoring of Joel A. Dearborn Sr., Esq., of Brewer, Maine for a period of one year.
b. Mr. Dearborn continues as monitor, but totally excludes Mr. Whalley's clients' matter from the monitoring process, so that no conflict is deemed to exist.
c. Mr. Dearborn continues as monitor, but withdraws from the conflicted matter.
d. Mr. Dearborn continues as monitor, and obligates Mr. Whalley not to participate in the matter and to promptly obtain replacement counsel for his client(s).
b. a description of any client matter identified as delinquent;
c. and any professional assistance Mr. Dearborn has provided to Mr. Whalley.
It is FURTHER ORDERED that Mr. Whalley shall comply with the provisions of M. Bar R. 7.2 (b)(8) and pay the reasonable expenses incurred by the Board in the investigation of the matter and in the conduct of hearings before the Grievance Commission and before the Court no later than six months from the date of this Order.
Finally, pursuant to Bar Rules 7.1(c) and (d), Bar Counsel may file an Information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Mr. Whalley and received by the Board after the date of this Order. Any apparent violations of the condition of this Order shall be brought to the attention of the Court by Bar Counsel.
For the Court
Warren M. Silver, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Patricia Danisinka-Washburn
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Docket No.: BAR-06-4
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 5, 2007
Respondent: Patricia Danisinka-Washburn
Bar Number: 001747
Order: Findings of Fact and Conclusions of Law
Disposition/Conduct: Conduct Prejudicial Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Neglect/ Inadequate Preparation; Excessive Fees; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation
FINDINGS AND CONCLUSIONS
This matter is before the Court for decision, after hearing, on a disciplinary information filed by the Board of Overseers of the Bar. M. Bar. R. 7.2(b). The information asserts violations of the Code of Professional Responsibility, Bar R. 3, and requests disciplinary action by the Court. A hearing was held on June 27, 2007, on the issues of violation of the Code of Professional Responsibility. By agreement of the parties and the Court, presentation of any evidence and argument relating to the issue of sanctions was deferred pending ruling by the Court on whether, or not, any violations of the Bar Rules have been proven.
Based on the evidence presented, the Court makes the following findings:
Floyd Burton Jr. was indicted for arson (Class A), 17-A M.R.S.A. ? 802, and attempted murder (Class A), 17-A M.R.S.A. ? 201, in the Superior Court, Penobscot County, CR-95-261. Burton was convicted of both charges after a jury trial in which he was represented by another attorney. On December 30, 1996, he was sentenced by the court (Calkins, J.) to concurrent terms of twenty-eight years, with all but twenty years suspended and four years probation. His trial attorney, on that date, filed a notice of appeal and an application for leave to appeal the sentence.1 His trial counsel also filed a motion to withdraw, which was granted, conditioned on appearance of new counsel. At trial, Burton had been represented on a court-appointed basis. In early-January 1997, another attorney, not involved in this matter, was court-appointed to handle Burton's appeal.
After sentencing, Burton was incarcerated at Department of Corrections Facilities and remains incarcerated today. Attorney Patricia Danisinka-Washburn had previously represented Burton in two civil matters. At some point in January 1997, Floyd Burton's mother, Hattie Burton, and Ms. Danisinka-Washburn spoke about the possibility of Danisinka-Washburn representing Floyd Burton on the appeal on a retained basis.
After several conversations, Danisinka-Washburn agreed with Hattie Burton that she would represent Floyd Burton in the appeal for a retainer of $15,000.
Hattie Burton advised Danisinka-Washburn that she would have trouble paying that sum in one payment. Danisinka-Washburn advised Hattie Burton that Burton could pay gradual payments, but a large sum was needed early on. Hattie Burton then mortgaged her home, paid some other debts, and paid Danisinka-Washburn $9,000 towards the retainer. She also began making monthly or bi-monthly payments of $200 or $250.
Danisinka-Washburn entered her appearance as counsel on the appeal on February 5, 1997. Danisinka-Washburn then undertook efforts to obtain the case file from Floyd Burton's trial attorney. Floyd Burton's trial attorney proved uncooperative until Danisinka-Washburn sought the assistance of the Board of Overseer of the Bar, after which the case file was obtained. The case file did not include the transcript. While the transcript had been ordered as part of the filing of the notice of appeal, payment arrangements had not been made. Thus, the transcript was not provided.
Because of delays in preparing the transcript, the State filed a motion to dismiss the appeal for want of prosecution. Danisinka-Washburn filed an objection to that motion. The Law Court (Wathan, C.J.) deferred ruling on the motion pending determination of Floyd Burton's indigency to secure court funds to pay for the transcript. In an order docketed on May 23, 1997, the court (Mead, J.) found Floyd Burton indigent and ordered that the court pay the costs incurred on appeal, including costs for payment of the transcript. The docket entries and several exhibits in the file indicate that there was some confusion between the Court, the court reporter, and Danisinka-Washburn as to whether funds for payment for the transcript had been approved.
The transcript was ultimately received by the Law Court on December 2, 1997. It was received by Danisinka-Washburn at about the same time. The Law Court notified Danisinka-Washburn that her brief was due January 5, 1998. No brief was filed. Danisinka-Washburn received, from the Law Court, a notice of possible dismissal for failure to timely file the appellant's brief in late-February 1998. She filed a request for more time until May 6, 1998, to file her brief. Her request for an extension of time to May 6 was granted. The time she requested lapsed, and no brief was filed.
The State filed another motion to dismiss in mid-May 1998. Danisinka-Washburn did not oppose this motion. Burton's appeal was dismissed for want of prosecution on May 28, 1998.
At hearing, Danisinka-Washburn asserted that she had extensively prepared and reviewed the file and researched potential issues on appeal and had decided that there were no meritorious grounds for appeal. Accordingly, she indicated she elected not to oppose the motion to dismiss.
This decision, that the appeal lacked merit and she would not oppose the motion to dismiss, was not communicated to Floyd Burton, Hattie Burton, or the Law Court.
By the time the appeal was dismissed, Danisinka-Washburn had been paid approximately $14,000 through the $9,000 payment from Hattie Burton, monthly or bi-monthly payments from Hattie Burton, and a payment to Danisinka-Washburn of $3,000 from Floyd Burton's brother-in-law.
As is the Law Court's practice when an appeal is dismissed, the notice of dismissal was sent, not only to the attorneys appearing in the case, but also directly to the defendant, Floyd Burton. Mr. Burton received the notice that the appeal had been dismissed shortly after the order dismissing the appeal was entered on May 28, 1998.
Although Floyd Burton was Danisinka-Washburn's client, virtually all of the contacts regarding the appeal were between Danisinka-Washburn and Hattie Burton. Hattie Burton is an individual with limited education, who had difficulty understanding the significant legal matters involved in the appeal. Floyd Burton wrote Danisinka-Washburn a number of letters asking that she contact him directly, but she did not do so. She continued to maintain contact only through Hattie Burton.
The record contains only one letter from Danisinka-Washburn to Floyd Burton. It was written in June 1998, about one month after Burton's appeal was dismissed. The letter does not mention the appeal and addresses an issue about a request to transfer Burton to a different facility within the prison system. A month after that letter, Floyd Burton wrote to Danisinka-Washburn stating he had learned of the notice of dismissal of his appeal and asked, "I would like to know what is going on with my case." Danisinka-Washburn did not reply to the letter.
Danisinka-Washburn asserts that she did not engage in direct contacts with Floyd Burton because she encountered difficulty in making calls to or receiving calls from the Maine State Prison where Burton was incarcerated. However, by Danisinka-Washburn's own admission, she has significant experience dealing with prisoners in the Maine State Prison, including the capacity for her to contact them and them to contact her. She testified that she worked virtually full-time as an advocate, connected to Pine Tree Legal Assistance, in dealing with matters for prisoners at the Maine State Prison in the early 1970s, and she has continued to receive and respond to correspondence and phone calls from a number of prisoners, both prisoners who were her clients and prisoners who were not, into the mid 1990s. Danisinka-Washburn knew how to engage in telephone contact with prison inmates, and could have done so with Floyd Burton, had she desire to have contact. The purported difficulties in telephone contact provide no excuse for failing to write to Mr. Burton about the decision that his appeal lacked merit, and the dismissal of his appeal, or to respond to some of his numerous letters asking about the status of his case.
After Floyd Burton received the notice from the Law Court that his appeal had been dismissed, he attempted to contact Danisinka-Washburn about the dismissal, and he also asked his mother to get information from Danisinka-Washburn as to why the appeal appeared to have been dismissed. When asked about the dismissal by Hattie Burton, Danisinka-Washburn informed her that she had received an extension of time, and the appeal was still being processed. This statement was false.
At hearing, Danisinka-Washburn testified that she spent extensive amounts of time reviewing and re-reviewing the file and researching legal issues connected with the appeal, such that she spent more time than would have been adequately compensated with the $15,000 retainer that she had requested. Danisinka-Washburn testified that she believed that the appeal had no merit because, primarily, the trial involved factual determinations related to credibility of the witnesses. At the same hearing, she testified that her claimed extensive work on the appeal included twelve to fifteen trips to the State Law Library in Augusta, during which time she had spent between six and eight hours each time researching legal issues connected with the appeal. She has no paperwork related to this claimed research because, she asserts, it was destroyed when the area where she had the files stored was flooded in 2001. Danisinka-Washburn offered little explanation as to what legal issues, in a case that she viewed as primarily a credibility contest, required such extensive research.
The Court finds that, after receiving the case file from the trial attorney, Danisinka-Washburn did not engage in the extensive file review, case preparation, and legal research claimed. At the time, her practice was disorganized and poorly documented, issues that have been subject to a prior disciplinary proceeding and order. BAR-03-4
At hearing, Danisinka-Washburn testified that she believed her representation of Floyd Burton ended by November of 1998 after she completed consideration of whether it might be possible to obtain a new trial for Burton. This termination of representation was not communicated to Floyd Burton or Hattie Burton. In subsequent conversations with Hattie Burton and other family members, and in one telephone conversation with Floyd Burton, Danisinka-Washburn spoke of efforts for a new trial or a sentence reduction. These comments were in response to questions about the status of the case. They were calculated to give the impression that Danisinka-Washburn was still working on the matter that she knew, but did not tell her client, had ended with dismissal of the appeal.
The Court finds that, in this case, Danisinka-Washburn neglected to adequately review and prepare the appeal and neglected to communicate with her client regarding the status of the appeal and it's ultimate dismissal.
The Court also finds not credible Danisinka-Washburn's claims that, after the appeal was dismissed, she engaged in further substantial work trying to develop evidence to file a motion for a new trial. The Court finds that such preparations to try to identify a basis for a new trial, if any, were minimal. The Court also finds that while Danisinka-Washburn may have briefly explored the possibility of obtaining a pardon or a commutation of sentence, her work on this issue was also minimal at best.
Throughout this time period, from late 1997, when she had claimed to be working on the appeal, through 1998, when the appeal was dismissed, and afterwards into 1999, Floyd Burton regularly wrote Danisinka-Washburn asking information about the status of the case and the appeal. She did not respond directly to Floyd Burton. In communications with Hattie Burton, Danisinka-Washburn misled Hattie Burton into believing that there were still issues to be explored, and that the appeal was taking a long time to be resolved.
In November 2001, Floyd Burton and Danisinka-Washburn spoke by telephone. This was their only direct conversation. At that time, Danisinka-Washburn advised Burton that she was still working on his case and trying to get his sentence reduced. She also told Burton that she would be sending him some paperwork to sign relative to his case. No paperwork was ever sent. While Danisinka-Washburn claims that this conversation relates to her efforts to obtain a commutation of Burton's sentence, she did not advise Burton that this process was separate from the appeal that had been dismissed. Burton believed this conversation related to the appeal. Notably, the conversation occurred after the spring of 2001 when Danisinka-Washburn claims that part of the paperwork relating to Burton's appeal was destroyed. She did not advise Burton of the loss of the appeal paperwork in the November 2001 conversation.
CONCLUSIONS
Based on the above findings and its consideration of the whole record, the Court concludes as follows:
These findings of violation of the Bar Rules having been made, the Court will schedule a hearing to determine, after hearing from Bar counsel and Danisinka-Washburn, what sanction may be appropriate in light of the violations of Bar Rules found in this order. The final disposition order will incorporate the above findings and conclusions, plus the Court's determinations regarding the appropriate sanction.
A hearing to determine appropriate sanctions will be scheduled promptly.
For the Court
Hon. Donald G. Alexander Associate Justice - Maine Supreme Judicial Court
Footnotes
1The application for leave to appeal sentence was denied by the Sentence Review Panel on May 2, 1997.
Board of Overseers of the Bar v. Patricia Danisinka-Washburn, Esq.
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Docket No.: BAR-06-4
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 9, 2007
Respondent: Patricia Danisinka-Washburn, Esq.
Bar Number: 001747
Order: Suspension
Disposition/Conduct: Conduct Prejudicial Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Neglect/ Inadequate Preparation; Excessive Fees; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation
DECISION and ORDER
This bar discipline matter was heard by the Court on June 27, 2007. On July 5, 2007, this Court issued "Findings and Conclusions" which are incorporated in this Order by reference. Throughout these proceedings Attorney Danisinka-Washburn has been represented by William Robitzek, Esq., and the Board of Overseers has been represented by Assistant Bar Counsel Aria eee.
Prior to the second phase of hearing, the parties notified the Court that they were in agreement as to sanctions and resolution of this matter. After discussion with the parties, further hearing has been waived. With approval of the Court, this Order is entered by agreement.
Based upon the Court's findings of misconduct by Attorney Danisinka-Washburn, the potential disposition must be considered. In determining the appropriate sanctions for the Code violations, the Court must consider Attorney Danisinka-Washburn's disciplinary history, including her previous suspended suspension in 2003. The Court notes that generally, when a lawyer has been sanctioned for the same or similar misconduct and engages in further acts of misconduct that cause injury to a client, the public, the legal system, or the profession, the appropriate sanction is suspension. ABA Standards for Imposing Lawyer Sanctions ?8.2 (1986). See Board of Overseers v. Bruce S. Billings, BAR-90-16 (1991).
Furthermore, this Court found in its Order of July 5, 2007, that Attorney Danisinka-Washburn received payments from Hattie Burton and another member of Floyd Burton's family in the amount of approximately $14,000 for legal fees on behalf of Floyd Burton. This Court also concluded that Attorney Danisinka-Washburn's professional services did not justify retention of that amount. The retention of the fees by Attorney Danisinka-Washburn constituted misconduct under the Code.
The Court understands that Hattie Burton has filed a claim seeking reimbursement for her loss from the Lawyers' Fund for Client Protection. The parties agree and the Court orders that if Ms. Burton's claim is approved and paid in whole or in part by the Lawyers' Fund for Client Protection, the Lawyers' Fund for Client Protection shall have a claim for restitution against Attorney Danisinkan-Washburn for the amount paid. This Order shall operate as a judgment in favor of the Lawyers' Fund for Client Protection against Attorney Danisinka-Washburn in an amount equal to what the Fund may pay Ms. Burton plus costs. However, if the Lawyer's Fund determines that the loss was greater than $14,000, (the approximate amount Ms. Burton paid Attorney Danisinka-Washburn), the Fund may seek an amendment of this Order.
Accordingly, it is hereby ORDERED and ADJUDGED that Patricia Danisinka-Washburn, Esq. is suspended from the practice of law in the State of Maine for a period of five years, effective thirty (30) days after the date of entry of this Order. It is FURTHER ORDERED that on or before the effective date of this Order, Patricia Danisinka-Washburn shall comply with the provisions of M. Bar R. 7.3(i)(1)(A), (B) and (C).
After the period of suspension, Danisinka-Washburn shall then immediately file with the Board a notification of her discontinuance of the practice of law in Maine and will then register on inactive status under Maine Bar Rule 6(C). She shall not thereafter resume the active practice of law without first having complied with all the provisions and requirements of Maine Bar Rule 6(c) (2), (3) and 7.3(j).
Finally, Bar Counsel may file an information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Ms. Danisinka-Washburn and received by the Board after the date of this Order.
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles F. Perrault, Esq.
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Docket No.: BAR-07-8
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 16, 2007
Respondent: Charles F. Perrault, Esq.
Bar Number: 003330
Order: Reprimand Reciprocal Discipline
Disposition/Conduct:
ORDER
This Court has received a certified copy of the Order of Public Reprimand by the Commonwealth of Massachusetts' Board of Bar Overseers of the Supreme Judicial Court dated June 21, 2007, publicly reprimanding Attorney Charles F. Perrault for his violations of the Supreme Court's Rules of Professional Conduct. Attorney Perrault has defaulted by failing to file any response to this Court's Order And Notice dated August 30, 2007 for him to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts, as requested by Maine's Board of Overseers of the Bar.
Therefore, based upon that default, this Court hereby ORDERS:
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Richard W. Salewski, Esq.
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Docket No.: GCF 06-383
Issued by: Grievance Commission
Date: June 20, 2007
Respondent: Richard W. Salewski, Esq.
Bar Number: 007185
Order: Reprimand
Disposition/Conduct: Disclosure of Interest; Commencement; Standards of Care and Judgment; Conflict of Interest: Simultaneous Representation
REPORT OF PROCEEDINGS, FINDINGS, CONCLUSIONS AND DISPOSITION
The above matter was referred by the Grievance Commission Panel A, on June 5, 2007, at the U.S. District Court house in Bangor, Maine. ?Pursuant to a Disciplinary Petition dated October 3, 2006, with proper notice being provided, a disciplinary hearing open to the public was conducted on this date pursuant to Maine Bar Rules 7.1(e)(1),(2) to determine whether grounds exist for the issuance of a reprimand or whether probable cause exists for the filing of an information with the Court. ?The Board of Overseers was represented by Assistant Bar Counsel, Nora Sosnoff, Esq., and Respondent Richard Salewski represented himself. ?Witnesses included Attorney Salewski, and the Complainant, Irmgard Dering.
The pleadings consisted of a Petition filed by the Board and Response filed by the Respondent. ?In the course of the proceedings, Exhibits 1 through 6 were offered by the Board, and admitted without objection; Exhibits 1 through 5 were offered by the Respondent and also admitted without objection.
Background and Findings of Fact
Discussions
The Board has alleged that Attorney Salewski has violated the following bar rules:
The Panel finds that Attorney Salewski did violate all of these rules. ?From the facts, there is no question that, by an objective standard, that both the lawyer and the client could and should reasonably understand and agree that Attorney Salewski had undertaken representation of Ms. Dering. ?That representation began not only with the February 2006 purchase, but also with the March 2006 purchase of the Stone Ridge Lane property. ?The Panel is particularly concerned by Attorney Salewski's repeated position that he was only representing the bank and not Ms. Dering. ?Although Attorney Salewski now acknowledges that representation may have occurred, it is clear that through the duration of his representation of and dealings with Ms. Dering, he was of the firm belief that he was not representing her. ?As a result of his failure to acknowledge that he was representing Ms. Dering, it in effect became impossible for him to meet or fulfill all of the other obligations which he owes to a client pursuant to the Maine Bar Rules.
Since Attorney Salewski was of the mistaken belief that he was not representing Ms. Dering, he obviously was also in violation of Rule 3.4(a)1 which required him to disclose to Ms. Dering his dual representation of her and the bank. ?This is a technical violation in that Attorney Salewski failed to disclose in writing the dual representation and provide to Ms. Dering the additional cautions required by the rule. At the same time, it is likely Ms. Dering understood all along that Attorney Salewski was not only representing her but also the bank. ?Similarly Attorney Salewski violated the Rule 3.4(c)2 in that Ms. Dering was not given the opportunity to make a decision and give her consent to the dual representation. ?More importantly, as a result of Attorney Salewski's failure to recognize that he was representing Ms. Dering as well as the bank, it again became impossible for him to recognize that there could be conflicts which could arise which could require him to terminate his simultaneous representation, withdraw from employment, and refer the clients to other attorneys.
Finally, the Panel finds that Attorney Salewski violated Rule 3.6(a), particularly in that he failed to take reasonable measures to keep his client informed of the client's affairs. ?The particular title problem that developed was the right of way. ?The Board is satisfied that Attorney Salewski took reasonable steps to cure the right of way problem that was disclosed by the Mortgage Loan Inspection. ?By that time, however, Ms. Dering was of the misunderstanding that "all right of way issues had been resolved". ?Attorney Salewski acknowledged that he failed to review with Ms. Dering at any time prior to closing the very important terms of the right of way regarding upkeep and maintenance. ?The terms of the right of way as disclosed in the deed are conditions of title that Attorney Salewski should have and was under a duty to at a minimum review with his client. ?Attorney Salewski was in error to operate under the belief that conditions in the title are a matter that can be left to real estate brokers to explain. ?Conditions of title are a critical example of an area that an attorney representing a client in a real estate transaction should review and discuss with his client. ?Attorney Salewski's failure to review this matter with Ms. Dering flows from his failure to acknowledge that he was in fact representing her throughout this transaction. ?The Panel is not suggesting that Attorney Salewski created any problems with the right of way and in fact finds to the contrary; Attorney Salewski's work in curing the right of way issues dealt only with the location of the right of way.? Attorney Salewski's failure is specifically limited to his failure to discuss the terms of the right of way in any manner with Ms. Dering. ?All that would have been required of him would have been to disclose and review the terms of that right of way with Ms. Dering. ?Pursuant to that discussion, she then could have made informed decisions on how to proceed. ?The Panel acknowledges that had such a discussion occurred, there may have been in fact nothing that could be done to change the terms of the right of way and that the transaction may still have gone through as planned. ?The point is Attorney Salewski failed to provide his client with this important information, thereby depriving her of the opportunity to make informed decisions. ?Again, this violation flows from and is a direct result of Attorney Salewski's failure to recognize he was representing Ms. Dering during this transaction, which the Panel finds to be the most troubling.? Based on the foregoing reasons and upon the evidence and record before it, Panel A determines the appropriate disposition of this Petition is that the Respondent, Attorney Salewski, should be and hereby is reprimanded.
For the Grievance Commission
Harold L. Stewart II, Esq.
John A. Mitchell, Esq.
Raymond J. Cota
Board of Overseers of the Bar v. Patricia V. Shadis, Esq.
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Docket No.: GCF 05-386
Issued by: Grievance Commission
Date: January 18, 2007
Respondent: Patricia V. Shadis, Esq.
Bar Number: 006811
Order: Reprimand
Disposition/Conduct: Conduct Prejudicial Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Threatening Prosecution; Adversary Conduct; Conduct Unworthy of an Attorney
REPORT OF FINDINGS OF PANEL B OF THE GRIEVANCE COMMISSION
On January 18, 2007, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1 (e)(2), concerning misconduct by the Respondent, Patricia V. Shadis, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 22, 2006. Attorney Shadis, through counsel, filed an Answer to the Disciplinary Petition on October 25, 2006.
Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board, and Attorney Karen Kingsley, with her client, respondent, Patricia V. Shadis. The complainant, Lori S. Hall, though not present addressed the proposed, stipulated Report via correspondence to the Grievance Commission.
The Panel accepted Ms. Hall's letter and reviewed counsels' proposed stipulated findings. The Panel then issued the following disposition:
FINDINGS
A. Violation of M. Bar R. 3.1(a)
By reviewing her actions in total, it is clear that Attorney Shadis committed "conduct unworthy of an attorney". After further reflection Attorney Shadis recognizes and regrets her failures in judgment.
B. Violation of M. Bar R. 3.2(f)(4)
Attorney Shadis knew or should have known that pursuing a closed criminal case during her representation of an unrelated civil client would be unwarranted. While competent advocacy is expected of lawyers, overzealous representation can lead, as it did here, to a violation of the Code of Professional Responsibility. Attorney Shadis went too far in advancing her client's interests.
C. Violation of M. Bar R. 3.6(a); 3.6(c)
Attorney Shadis should always employ reasonable care and apply her best judgment in the performance of professional services. Furthermore, Attorney Shadis should never again threaten to present criminal charges in order to obtain an advantage in a civil matter.
D. Violation of M. Bar R. 3.7(e)(2)(vi)
3.7 Conduct During Litigation
(e) Adversary Conduct.
(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(vi) Engage in undignified or discourteous conduct that is degrading to a tribunal.
While advocating on behalf of her client, Attorney Shadis violated the above referenced provision of Maine Bar Rule 3.7. At the disciplinary hearing, Attorney Shadis, apologized for her behavior, accepted responsibility for those violations and acknowledged that her actions were the result of a desire to zealously represent her client.
CONCLUSION AND SANCTION
As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand here serves those purposes.
Therefore the Panel concludes that the following violations occurred:
Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1 (e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction.
These factors are:
The Panel has accordingly considered the foregoing factors and finds that Attorney Shadis has violated duties owed to the public and the legal system. She acted knowingly and purposefully, causing actual injury to the complainant's family who retained counsel in order to address the renewed criminal allegations. As a mitigating factor, Attorney Shadis has no prior disciplinary record with the Board. She is remorseful and acknowledges that her overzealous representation of her client prevented her from complying with her obligations to the attorney oath and to the Code of Professional Responsibility.
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Patricia V. Shadis.
Seen and agreed to:
Karen Kingsley, Attorney for Respondent
Aria eee, Assistant Bar Counsel
For the Grievance Commission
John H. Rich III, Esq., Chair
John Bass, Esq.
Susannah White
Board of Overseers of the Bar v. Brian D. Condon, Jr.
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Docket No.: BAR-06-3
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 31, 2007
Respondent: Brian D. Condon, Jr.
Bar Number: 008588
Order: Suspension
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Contempt; Violating Court Orders/Rules
FINDINGS OF FACT CONCLUSIONS OF LAW SANCTION
A hearing on the motion for contempt brought by the Board of Overseers of the Bar against Brian Condon was held on May 8, 2007. Nora Sosnoff appeared for the Board, and Karen Kingsley appeared for Brian Condon. Condon was the only witness. The parties agreed to the admissibility of all of the offered exhibits.
By order of Justice Howard H. Dana, Jr. of the Supreme Judicial Court entered on December 27, 2006, Condon was found to have violated several provisions of the Maine Bar Rules. The sanction was a one-year suspension from the practice of law, commencing January 1, 2007. The court suspended all but fifteen days of that one-year period of suspension. The parties agree that the unsuspended fifteen-day period began on January 15, 2007.
By motion dated February 26, 2007, the Board seeks a finding of contempt against Condon and alleges three violations of the December 27, 2006 order. First, the Board alleges that Condon continued to advertise his services as an attorney in a local newspaper during the period of January 15 through January 30, 2007. Second, the Board alleges that during this period Condon acknowledged deeds as an attorney. Third, the Board alleges that Condon violated the provision of the order that required him, before resuming his practice, to enter into a monitoring agreement with the Maine Assistance Program for Lawyers (MAP). As a sanction, the Board seeks a six-month extension of the unsuspended portion of the suspension from the practice of law.
I. FINDINGS
Related to these instances alleged in the Board's motion for contempt, the court finds that the Board has demonstrated by clear and convincing evidence the following facts.
A. Advertisements
In a weekly local publication called the "Community Advertiser," Condon publicized his law office with a small (four-inch by one and one-half-inch) advertisement. The advertisement gives the address of Condon's law office with the phone number and email address. It indicates that he provides services for "Wills/Trusts, Estate Administration, Probate, Corporations, Real Estate, Taxes." It further states: "If buying a home or business, make sure YOU are represented properly." Condon had a standing order for the weekly ads. He was periodically billed for the ads by the publication.
This advertisement ran on January 20 and January 27, during the unsuspended portion of Condon's suspension from practice. Condon testified that the advertisement on those dates was inadvertent. He excused his failure to notify the publication to remove the advertisement by saying that it was not an advertisement as much as it was his support for the publication that provides community services. Condon's excuse is disingenuous and undermines his testimony that his failure to pull the advertisement during his period of unsuspended suspension was completely inadvertent.
B. Deed Acknowledgments
There was some initial confusion regarding the timing of the unsuspended period of suspension. The parties resolved the confusion and agreed that the period would start on January 15. From January 15 through January 30, Condon continued to go to his law office at least some of the time. He was a sole practitioner at the time of his suspension. He removed a sign from his law office indicating that it was a law office.
During this fifteen-day period he continued to operate another business that he owns, a law-related business of a title company, and he displayed a title company sign on his law office. In his capacity as the owner or employee of the title company, he prepared deeds. He was also the agent of a title insurance company, and in that capacity he made commitments for the title insurance company.
On January 26, 2007, he conducted a real estate closing involving property in which the seller was Affordable Maine Homes and the buyer was an individual. The buyer and the manager of Affordable Maine Homes were present in Condon's office. The deed and mortgage deed had been prepared ahead of time. Condon took the acknowledgment of the buyer on the mortgage deed. Under Condon's signature, Condon wrote "atty." He realized that he should not acknowledge the signature as an attorney and crossed out "atty." He located his notary stamp and stamped the deed with the notary stamp. Condon also took the acknowledgement of the manager of Affordable Maine Homes on the warranty deed and used his notary stamp. On the same day, Condon participated in another closing and took the acknowledgement of the sellers' signatures on a warranty deed.
On these three deeds, Condon's notary stamp is illegible and the date of expiration is not shown. Although Condon was not aware of it on January 26, his notary commission had expired in March 2006.
Condon did not become of aware of the defect1 in his taking of the acknowledgments until his attorney telephoned to tell him about the motion for contempt that the Board was considering. Condon then wrote a letter to Justice Dana in which he stated:
Therefore, those three documents, I needed to re-notarize and re-record, which I have completed at my own expense.
Condon continued on in the letter to state that he meant no disrespect, and he apologized for the mistake. The letter is undated, but the postmark indicates it was mailed on February 26.
In the answer that Condon filed with this Court in response to the Board's motion for contempt, Condon stated:
In fact, as Condon admitted in his testimony and contrary to what he stated In his letter to Justice Dana and in his answer, he has corrected the acknowledgement and rerecorded only one of the three deeds. Condon testified that he made a "misstatement" in his letter to Justice Dana and in his answer with regard to having corrected and rerecorded all three deeds. The Court finds that Condon made a deliberate misrepresentation in his letter to Justice Dana and his answer concerning his correction and rerecording of the deeds.
C. Monitoring Agreement
The December 27 order states:
Condon resumed his practice of law sometime between January 30 and February 5, 20072. Prior to January 15, 2007, and during the fifteen-day period, Condon's attorney corresponded by email and telephone with David Kee, the director of MAP regarding a monitoring agreement. Kee explained what he would need from Condon to establish an agreement. Among other things, Condon had to provide Kee with releases and a letter of intent from which Kee would prepare the contract. Condon did not provide the letter of intent to Kee until February 6. Kee then drafted the contract and sent it to the Board's counsel for approval as to form. Condon approved a draft of the contract on February 13, and the Board's counsel gave final approval by letter dated February 27. Kee signed the contract on March 2, and Condon signed it thereafter.
Condon testified that he did not understand that the monitoring agreement had to be executed before he could resume his practice of law. He testified that he believed that as long as counsel for the Board had approved the form of the agreement, he could resume practice, and he testified that Board counsel had approved the form before he returned to practice. The Court finds it difficult to believe that Condon could interpret the requirement that he enter into a monitoring agreement before he resumes his practice in the manner that he testified. Condon violated the above-quoted provision of the December 27 order.
II. CONCLUSIONS OF LAW
An attorney under suspension may not "accept any new retainer or engage as attorney for another in any new case or legal matter of any nature." M. Bar R. 7.3(i)(1)(A). The Court has held that this provision is violated when an attorney used stationary with a letterhead indicating that he is an attorney. Bd. of Overseers of the Bar v. MacKerron, 581 A.2d 424, 425 (Me. 1990). Furthermore, an attorney under suspension has no ability to act as an attorney during the suspension period. Id.; M. Bar R. 7.3(i)(1)(B). "[A]cknowledging a deed as an attorney" is holding oneself out as an authorized attorney. MacKerron, 581 A.2d at 425.
The Maine Bar Rule regarding contempt by a suspended attorney states:
M. Bar R. 7.3(i)(1)(F). Under an identically-worded rule, the Court has affirmed the finding of contempt of a suspended attorney who used his letterhead stationery and acknowledged a deed signature as an attorney. MacKerron, 581 A.2d at 425.
"Contempt" in M.R. Civ. P. 66(2)(A) is defined as "(i) disorderly conduct, insolent behavior, ... or other ... action which actually obstructs or hinders the administration of justice or which diminishes the court's authority; or (ii) failure to comply with a lawful judgment, ... or formal instruction of the court."
Even without contempt rules, Maine courts have inherent contempt power, State v. DeLong, 456 A.2d 877, 879 (Me. 1983), and the Supreme Judicial Court has statutory contempt authority, 4 M.R.S. ? 7 (2006).
Condon's failure to stop his advertisement during the fifteen-day suspension period constitutes a failure to comply with Rule 7.3(i) and a failure to comply with the order dated December 27,2006. Condon's acknowledgment of the three deeds in his capacity as an expired notary does not technically constitute acting as an attorney during the period of suspension. However, Condon's deliberate misrepresentation to Justice Dana by letter and to this Court by answer that he had completed the correction of the defects in the three acknowledgments when, in fact, he had not done so, constitutes "hinder[ing] the administration of justice," M.R. Civ. P. 66(2)(A)(i), and a contempt of court. Finally, Condon's failure to comply with the terms of the December 27 order by resuming practice before he had entered into the monitoring agreement with MAP likewise constitutes contempt.
III. SANCTION
Condon's failure to stop his advertisement and his resumption of practice before the agreement with MAP was completed warrant a sanction that will capture Condon's undivided attention and impress upon him the seriousness of the suspension imposed by the Court. Furthermore, the deliberate misrepresentation of the facts in his letter to Justice Dana and in his answer to this Court warrants an extension of the unsuspended portion of the suspension from the practice of law.
Therefore, the unsuspended portion of the suspension originally ordered by the December 27 order is extended for an additional period of sixty days, which is to commence on July 1, 2007. In all other respects the December 27 order remains in full force and effect.
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Footnotes
1The acknowledgement statute provides: ?Deeds . . . must be acknowledged by the grantors, . . . before a notary public in the State, or before an attorney-at-law duly admitted and eligible to practice in the courts of the State . . . ? 33 M.R.S. ? 203 (2006)
2 According to his February 26 letter to Justice Dana, Condon resumed his practice three days after January 27, 2007. He testified that he resumed his practice on February 5, 2007.
Board of Overseers of the Bar v. Richard S. Emerson, Jr.
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Docket No.: BAR-00-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 27, 2007
Respondent: Richard S. Emerson, Jr.
Bar Number: 000934
Order: Resignation
Disposition/Conduct:
ORDER
This matter came before the Court pursuant to a Petition to Determine Incapacity filed by the Board of Overseers of the Bar. Following preliminary negotiations, the parties ultimately agreed to propose that the Court instead consider and accept Mr. Emerson's resignation, pursuant to Maine Bar Rule 7.3(g). That voluntary resignation dated August 2, 2007 was tendered to the Board on August 17, 2007 when the full Board considered Emerson's request. Following its consideration, the Board recommended that the Court accept Attorney Emerson's resignation from the Maine bar. The parties then appeared before the Court on August 27, 2007 to conduct the final hearing in this matter.
Throughout the proceeding, the Board of Overseers of the Bar (the Board) has been represented by Assistant Bar Counsel Aria eee. Defendant Richard S. Emerson, Jr. (Emerson) has been represented by Peter J. DeTroy, Esq. The Court understands that Ms. Eee notified the complainants, Matthew O?Donnell and Richard P. Waltz, in advance of the proposed resolution of this disciplinary proceeding.
Stipulations
The parties have stipulated to the following material facts:
By Order dated March 15, 2001 this Court determined that
Since March 2002, Richard S. Emerson, Jr. has been registered with the Board of Overseers of the Bar as an inactive attorney under M. Bar Rule 6(c). Subsequent to that date and pursuant to M. Bar R. 6(b)(1) and 10(b), Emerson was summarily suspended for his failure to register and pay the applicable fees to the Board. The summary suspension became effective on November 2, 2002 and while not a disciplinary sanction, it did result in a prohibition on Emerson's right to practice law.
On April 25, 2005 Matthew O'Donnell filed a complaint against Emerson with the Board. O'Donnell's complaint alleged that in October 2003 Emerson had agreed to a business venture involving the two of them and a few other partners. To that end, O'Donnell partially liquidated his retirement account and by overnight mail sent a bank check for $25,000 to "Richard Emerson, Esq." The parties agree that Emerson then cashed the check but failed to clarify his inactive bar status for O'Donnell.
After an immediate turn in events, O'Donnell repeatedly requested a return of his funds but Emerson was unable to comply asserting that he did not have the money. Subsequently, O'Donnell obtained a civil judgment against Emerson. O'Donnell has attempted to collect on that judgment and or to negotiate a payment plan but his efforts have proved unsuccessful. Emerson accepts responsibility for the fact that O'Donnell's funds remain missing and have not been reimbursed to him. He agrees that he owes the money and he intends to reimburse Mr. O'Donnell.
Based upon the facts of this case, the Court finds that Emerson's involvement with 0' Donnell either created an ambiguity as to his role or left O'Donnell with the impression that Emerson would be providing legal services. Moreover, when Emerson cashed the check made out to "Richard Emerson, Esq." he compounded the ambiguity and misperception of his bar status.
More recently, in 2006 Emerson persuaded an acquaintance to co-sign a bank loan apparently to fund some of Emerson's personal expenses. When Emerson defaulted, the acquaintance used his own funds to repay the loan. Emerson promised to reimburse the man but thus far he has made only two payments.
At the time the Board filed its Petition for Incapacity, it argued that Emerson's failure to satisfy the O'Donnell judgment before borrowing additional funds constituted violations of the Code of Professional Responsibility. Again, the Court notes that Emerson apparently did not intend to harm anyone but his actions nonetheless resulted in considerable injury both to the men affected and to Emerson's credibility.
As a mitigating factor, Emerson recognizes his lapses in professional and personal judgment and he agrees that his behaviors have severely impacted his fitness to practice law. Emerson is now employed in a different career and it is not his intent to return to the practice of law. The Court also notes that Emerson has displayed sincere remorse for his actions.
Finally, the Court understands that Mr. O'Donnell intends to file a claim seeking reimbursement for his loss from the Lawyers' Fund for Client Protection (LFCP). If that claim is approved and paid in whole or in part by the LFCP, the Lawyers' Fund shall have a claim for restitution against Richard S. Emerson, Jr. for the amount paid. This Order shall operate as a judgment in favor of the LFCP against Mr. Emerson in the amount of $25,000 plus costs. However, if the Fund determines that the loss was even greater, the LFCP may seek an amendment of this Order accordingly.
Conclusions of Law
The parties agree and the Court so finds that Mr. Emerson's conduct violated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.2(f)(4) (conduct prejudicial to the administration of justice). Specifically, the Court is satisfied that Emerson's disability caused him to act in such a way as to have others trust and rely upon him and he failed to honor his commitments to those persons harmed by his misconduct. Of significance here, the Maine Bar Rules allow any attorney who is the subject of a disciplinary investigation to submit to the Board a letter of resignation, supported by an affidavit, subject to the attorney's compliance with specific conditions as outlined by M. Bar R. 7.3(g)(1).
Therefore, pursuant to Maine Bar Rule 7.3(g)(2) the Court hereby ORDERS the following:
Richard S. Emerson, Jr.'s resignation from the Maine bar is accepted immediately, pursuant to Maine Bar Rule 7.3(g)(3).
As required by M. Bar R. 7.3(g)(3), Richard S. Emerson Jr.'s supporting Affidavit dated August 2, 2007, is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. Should Richard S. Emerson Jr. seek reinstatement to the Maine bar, this Affidavit may then be made public without further Order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Joel C. Vincent, Esq.
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Docket No.: BAR-06-304
Issued by: Grievance Commission
Date: September 24, 2007
Respondent: Joel C. Vincent, Esq.
Bar Number: 003488
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Neglect
REPORT OF FINDINGS PANEL D OF THE GRIEVANCE COMMISSION
M. Bar R. 7.1(e)(2)
M. Bar R. 7.1(e)(4)
On September 24, 2007, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Joel C. Vincent, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 2,2007.
At the hearing, Attorney Vincent appeared, pro se and the Board was represented by Assistant Bar Counsel, Aria eee. The complainant, Robert W. Marion III, had been provided with a copy of this Report (in its proposal form) but was not present. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction order for the Grievance Commission Panel's review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Joel Vincent (Vincent) of Portland, County of Cumberland, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Vincent was admitted to the Maine bar in 1987 and he is a member in good standing.
On July 30, 2006 Robert W. Marion III filed a complaint with the Board against Attorney Vincent alleging that Vincent failed to prosecute Mr. Marion's criminal appeal.
On August 25, 2006, Attorney Vincent filed his response to the complaint, providing background information on his representation of Mr. Marion. Vincent recounted how his client's sentence appeal had been denied by the First Circuit Court of Appeals and how Mr. Marion had subsequently filed a Petition for Certiorari with the U.S. Supreme Court on a pro se basis. In his response to the complaint, Attorney Vincent admitted to failing to comply with his duties as counsel by 1) either providing Mr. Marion with continued representation on the Petition for Certiorari or 2) notifying Mr. Marion in a timely manner that in Attorney Vincent's opinion, the Petition would be frivolous, therefore, warranting Attorney Vincent's withdrawal as counsel. Attorney Vincent further admitted his neglect in failing to immediately respond to Mr. Marion's letters. Once he discovered his errors, Attorney Vincent did notify his client and offered to assist him in any way that remained possible. Ultimately, Mr. Marion completed the filing of the Petition without requesting further assistance from Attorney Vincent.
A review of the materials from the Board's investigation reveals that prior to his above-outlined failure Attorney Vincent appropriately and adequately represented Mr. Marion throughout the proceedings, including Marion's initial appeal. Likewise, the Board found, and the Grievance Commission now agrees and affirms, that Attorney Vincent's response to the bar complaint was forthright and he expressed sincere regret and remorse for his errors in Mr. Marion's case.
On December 21, 2006 the complaint and responses were reviewed by a Panel of the Grievance Commission. The panel found that probable cause existed that Attorney Vincent had engaged in misconduct subject to sanction under the Bar Rules. The Panel directed Bar Counsel to prepare and file a formal Disciplinary Petition before another panel of the Grievance Commission.
After discussion between the parties, the Board filed a Stipulated Disciplinary Petition on August 2, 2007. The parties generally agreed to a finding of misconduct as referenced in the Disciplinary Petition.
To that end, Attorney Vincent acknowledges that his failure to prosecute his client's Petition or in the alternative, to withdraw from the representation (due to Vincent's belief that the Petition was frivolous) and to timely communicate with Mr. Marion constituted violations of the Code of Professional Responsibility. Specifically, those violations involved Maine Bar Rules 3.1(a) (conduct unworthy of an attorney) and 3.6(a)(3) (neglect of a legal matter entrusted to the lawyer).
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Vincent's above-outlined failures, Mr. Marion's only option was to proceed pro se on his Petition for Writ of Certiorari. Although the Grievance Commission is not convinced that the Petition would have been accepted by the U.S. Supreme Court, Mr. Marion nonetheless deserved a chance for the Court to decide that question after having the benefit of counsel's assistance.
The panel notes that Attorney Vincent has taken full responsibility for his actions and the unfair result to Mr. Marion. From the beginning, Attorney Vincent has been remorseful and apologetic for his violations of the Code of Professional Responsibility. To his credit, Attorney Vincent previously disclosed his failures and apologized to Mr. Marion even before the filing of the bar complaint.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Vincent agrees that he did in fact violate the Code of Professional Responsibility, it appears that a public reprimand serves those purposes. Attorney Vincent has no history of professional discipline and since the time that the misconduct occurred there have been substantial changes in his office structuring and office management procedures. Based upon his well-established diligence as a criminal defense lawyer and his sincere response to having failed Mr. Marion, the Panel finds that it is unlikely that Attorney Vincent will repeat the same behavior in the future.
Therefore, the Panel accepts the agreement of the parties, including Attorney Vincent's waiver of the right to file a Petition for review, and concludes that the appropriate disposition of this case is a reprimand to Joel C. Vincent, Esq. as provided by M. Bar R. 7. 1(e)(3)(C).
For the Parties
Aria eee, Assistant Bar Counsel
Joel C. Vincent, Esq.
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
William E. Baghdoyan, Esq.
David Nyberg Ph.D.
Board of Overseers of the Bar v. In Re Richard B. Slosberg, Esq.
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Docket No.: BAR-04-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 16, 2007
Respondent: Richard B. Slosberg, Esq.
Bar Number: 003446
Order: Reinstatement Denied
Disposition/Conduct: Reinstatement Denied
ORDER ON PETITION FOR REINSTATEMENT
This matter is before the Court pursuant to M. Bar R. 7.3(j)(1), (5) on the petition of Richard B. Slosberg for reinstatement as a member in good standing of the Maine Bar. Mr. Slosberg was disbarred by Order of this Court dated February 22, 2005, for violation of Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(e)(2)(vi).
The petition for reinstatement was opposed by bar counsel, and the matter was referred to the Grievance Commission. See M. Bar R. 7.3(h)(5). The Grievance Commission held a hearing on the petition for reinstatement, and following the hearing, issued findings, and recommended against the reinstatement of Mr. Slosberg. See M. Bar R. 7.3(j)(5)(A)-(F).
Pursuant to M. Bar R. 7.3(j)(6), the Report of the Panel was filed with this Court. The Board of Bar Overseers followed the recommendation of the Grievance Commission, and recommended that the petition for reinstatement be denied.
The matter was assigned to the undersigned Justice. A hearing on the petition for reinstatement was held on October 16, 2007, at the Cumberland County Courthouse. The Board was represented by Bar Counsel J. Scott Davis. Richard Slosberg represented himself. Testifying were Mr. Slosberg, and Assistant Bar Counsel Aria Eee.
In a reinstatement proceeding, the burden is on the petitioner to demonstrate, by a clear and convincing standard, that he is entitled to reinstatement based on all of the factors set out in M. Bar R. 7.3(j)(5).1
The Court finds that as to Rule 7.3(j)(5)(C), petitioner Slosberg has failed to demonstrate by a preponderance of the evidence, much less by clear and convincing evidence, that he recognizes the wrongfulness and seriousness of the misconduct for which he was disbarred.
In the February 22, 2005, order disbarring Mr. Slosberg, the Court accepted the testimony of Shawn Willson, M.D., a psychiatrist who treated Mr. Slosberg and who diagnosed him as Bipolar I and suffering from depression. She described Mr. Slosberg as "irrational and prone to rages," who did not follow recommended dosages of prescription drugs. She concluded that he had "difficulty appreciating the inappropriateness of his [bad] conduct" and stated that he did "not have the capacity to look at himself insightfully."
In a later opinion, expressed in an April 1, 2005, letter to the Court,2 Dr. Willson stated that Mr. Slosberg had improved with medication, and that he "can return to the practice of law without any restrictions and would be a low risk for behavioral problems" if he continued with his medication and his counseling. Mr. Slosberg, however, has discontinued his medication, and no longer consults with Dr. Willson or any other mental health professional.
Moreover, the conduct of Mr. Slosberg in connection with a Bar Discipline proceeding involving another attorney, conduct which occurred since Mr. Slosberg's disbarment, demonstrates that Mr. Slosberg does not fully recognize the wrongfulness and seriousness of the misconduct that resulted in his disbarment.
In August of 2005, Mr. Slosberg himself filed a complaint with the Board of Overseers against an attorney who practices law in York County. Slosberg's letter of complaint contained two allegations of misconduct against the attorney. The first complaint alleged that the attorney engaged in assaultive conduct. The second complaint alleged that the attorney filed a false affidavit with the Superior Court in York County in connection with a motion for a summary Judgment filed in a case in which the attorney was representing one of the parties.
Mr. Slosberg had no involvement in the case out of which the alleged assault by the attorney arose, and did not observe the alleged assault. Mr. Slosberg apparently was involved, prior to his disbarment, in the case in which the allegedly false affidavit was filed, but was not involved in the case at the time of the filing of the affidavit. Mr. Slosberg's friend, Attorney Herschel Lerman of York County, was involved in both cases, and Attorney Lerman was the source of knowledge of the facts alleged in Mr. Slosberg's letter of complaint against the York County attorney.
After preliminary review of Mr. Slosberg's complaint by a panel of the Grievance Commission, to which the complaint had been referred See M. Bar R. 7(d)(1)(A), that preliminary review panel decided that a Bar discipline case should proceed against the York County attorney, but on only one of the two matters set out in Mr. Slosberg's complaint letter, namely the alleged assault committed by the attorney, to which Mr. Slosberg was not a witness. See M. Bar R. 7.1(e)(1). A disciplinary petition was filed by Bar Counsel against the York County attorney concerning the alleged assaultive behavior. No further action was taken on the allegation concerning the filing of a false affidavit, and the petition filed by bar counsel with the Grievance Commission does not allege any misconduct arising out of the filing of the affidavit. Pursuant to Rule 7.1(e)(2), a hearing before a different Grievance Commission Panel on the petition filed by Bar counsel against the York County attorney was held on August 28, 2006.
A partial transcript of that Grievance Panel hearing concerning the attorney from York County was provided to this Court in this case involving Mr. Slosberg's petition for reinstatement. In addition, Mr. Slosberg and Deputy Bar Counsel Eee both testified about Mr. Slosberg's participation in that Grievance Panel hearing. The evidence shows that at that hearing, Mr. Slosberg attempted to have the Grievance Panel address the allegation concerning the filing of a false affidavit, conduct that the initial Panel did not recommend be pursued, and that Bar Counsel was not pursing in its petition before the Grievance Panel. That Mr. Slosberg, at the hearing before the Grievance Panel dealing only with an allegation of an assault, insisted that the Grievance Panel address an additional allegation about the filing of a false affidavit, which had been found not worthy of pursuing, and which was not being pursued by Bar Counsel, demonstrates, at the very least, poor judgment on the part of Mr. Slosberg.
That poor judgment was compounded at the August 28, 2006, Grievance Panel hearing when Mr. Slosberg argued to the Board that he had a right to address the Panel on the false affidavit allegation contained in his initial complaint to the Board of Overseers. Mr. Slosberg continued to press the matter before the Panel, and insisted that he had a right to bring the matter before the Panel, and to make an opening statement to the Panel even after he was told by the Panel Chair that the false affidavit allegation was not before the Panel, and that he had no standing to make an opening statement in that proceeding that had been initiated by a petition filed by Bar Counsel. Mr. Slosberg displayed poor judgment at the hearing and his conduct was inappropriate, and reflects that he does not recognize either the wrongfulness or the seriousness of that behavior. See M. Bar R. 7.3(j)(5)(C).
Moreover, Mr. Slosberg has failed to meet the requirement of M. Bar R. 7.3(j)(5)(F) in that he has not satisfied the continuing legal education requirements of M. Bar R. 12(a)(1) for any of the time he has been prohibited from the practice of law in Maine.
For the foregoing reasons, the Court finds that Mr. Slosberg has failed to demonstrate compliance with all of the requirements set out in M. Bar R. 7.3(j)(5). Accordingly, his petition for reinstatement must be denied.
The entry is:
Petition for Reinstatement is denied.
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court
Footnotes
1M. Bar R. 7.3(j)(5) provides in pertinent part:
Factors to be considered as to the petitioner's meeting that burden include evidence that:
(B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;
(C) The petitioner recognizes the wrongfulness and seriousness of the misconduct;
(D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;
(E) The petitioner has the requisite honesty and integrity to practice law;
(F) The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice with at least two credit hours being primarily concerned with the issues of ethics or professional responsibility.
2Admitted without objections at the reinstatement hearing as Board Exhibit #24.
Board of Overseers of the Bar v. Richard G. Cervizzi
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Docket No.: BAR-04-04
Issued by: Single Justice, Maine Supreme Judicial Court
Date: April 4, 2005
Respondent: Richard G. Cervizzi
Bar Number: 001607
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment; Retention of Client Files; Illegal Conduct; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Neglect; Improper Concealment
ORDER OF DISBARMENT
This matter is before the Court pursuant to M. Bar R. 7 .2(b) (1) on a disciplinary information filed by the Board of Overseers of the Bar, seeking the disbarment of Richard G. Cervizzi. The matter was heard on March 31, 2005. Although notified of the hearing, Mr. Cervizzi failed to appear, instead sending a letter indicating that he did not contest disbarment. Bar counsel was present and presented testimony by six witnesses. Fifty exhibits were offered and admitted.
Based on the record of testimony, exhibits and the information and other pleadings filed in this matter, the Court makes the following findings regarding procedures and Mr. Cervizzi's default:
Based upon the allegations admitted by default and the testimony of six witnesses presented by Bar Counsel at hearing, the Court finds the following facts regarding misconduct by Mr. Cervizzi:
CONCLUSIONS
Based on these findings, the Court concludes that Richard G. Cervizzi has violated numerous Bar Rules. Specifically,
The violation of these provisions of the Bar Rules are numerous and serious, affecting many clients and the integrity of the disciplinary process. Mr. Cervizzi has not suggested any justification or mitigating circumstances for his action. He has indicated no remorse for the harm he has caused to his former clients.
Protection of the public is the primary purpose of the attorney discipline system. With that purpose and no indication of any mitigating circumstances, the numerous and serious violations of the Bar Rules require that the sanction of disbarment be imposed as the only appropriate sanction in the circumstances.
ORDER
It is hereby ORDERED that Richard G. Cervizzi be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. Mr. Cervizzi may not seek reinstatement to practice law in Maine until at least five (5) years from the date of this order, and may do so then only f he first makes the following payments:
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Footnotes
1Suggested amendments by Mr. Cervizzi to Bar Counsel?s draft disbarment order include a suggestion by Mr. Cervizzi that the $990 has been paid to NovaStar. That allegation, not subject to examination, is insufficient to overcome the defaulted finding of non-payment.
Board of Overseers of the Bar v. Richard B. Romanow
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Docket No.: GCF 04-332; GCF 05-243; GCF 05-244; GCF 05-256
Issued by: Grievance Commission
Date: February 27, 2006
Respondent: Richard B. Romanow
Bar Number: 002287
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Preserving Identity of Funds and Property
REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION
On February 27, 2006, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Richard B. Romanow. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on January 12, 2006.
Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board and Richard B. Romanow, appeared pro se. The complainants, Tara Jo Johnson, Timothy Lucero, Christina Bently and Patty Stenger do not reside in Maine and were not present for the hearing. However, Assistant Bar Counsel did speak with Ms. Johnson and sent her a copy of the Board's proposed Report in advance of hearing. Ms. Johnson then forwarded copies of the Report to her relatives, the remaining complainants; also in advance of hearing.
Mr. Romanow addressed the Panel and expressed his remorse for his role in the circumstances of these four cases. Having considered the remarks of those present and having reviewed the agreed upon proposed findings presented by counsel, the Panel makes the following findings and disposition:
FINDINGS
CONCLUSION AND SANCTION
It is a clear violation of the minimum standards established in Maine's Code of Professional Responsibility, for an attorney to fail to keep financial records during the course of their service as a trustee or a personal representative. During this proceeding, Mr. Romanow has taken full responsibility for his actions and the subsequent distress it caused the complainants.
As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. Given the facts of this case, a reprimand serves those purposes.
Therefore, the Panel concludes that the appropriate disposition of this case is a public reprimand as provided by M Bar R. 7.1(e)(3)(C).
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
Victoria Powers, Esq.
David Nyberg, Ph.D.
Board of Overseers of the Bar v. Brian Condon
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Docket No.: Ken-07-359
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 20, 2008
Respondent: Brian Condon
Bar Number: 008555
Order: Order Staying Suspension
Disposition/Conduct:
ORDER STAYING SUSPENSION OF ATTORNEY UNTIL FEBRUARY 25
Brian Condon, Esq., has moved to stay his suspension from the practice of law for thirty days from the issuance of this Court's mandate in this matter. The mandate affirming his suspension was issued on February 19, 2008.
The motion is GRANTED IN PART. Condon's suspension is stayed through February 24, 2008. His suspension shall begin effective February 25, 2008.
For the Court
Hon. Chief Justice Leigh I. Saufley - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert M.A. Nadeau, Esq.
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Docket No.: BAR-05-03
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 2, 2006
Respondent: Robert M.A. Nadeau, Esq.
Bar Number: 007460
Order: Reprimand
Disposition/Conduct: Misconduct before a Tribunal
CONSOLIDATED ORDER
Before the Court are matters concerning the professional conduct of Attorney Robert M.A. Nadeau pursuant to an information filed by the Board of Overseers of the Bar in accordance with M. Bar R. 7.2(b). The Board was represented by Nora Sosnoff, Deputy Bar Counsel; Attorney Nadeau was represented by Stephen B. Wade, Esq.
At issue in these consolidated cases is the professional conduct of Attorney Nadeau. The Grievance Commission docket numbers assigned by the Board of Overseers of the Bar are: GCF # 03-255; GCF # 03-335; and GCF # 04-314. Those matters are hereby consolidated under this Court's docket number BAR 05-03.
The facts stated below are established by agreement of the parties. The resolution of this matter is also based on agreement of the parties with approval of the Court.
GCF# 03-255
On June 20, 2003, Attorney Nadeau commenced a consensual sexual relationship with a divorce client. Attorney Nadeau's conduct when he terminated the attorney-client relationship and withdrew from representation of that client fell short of the standards established in the Code of Professional Responsibility. The conduct towards the client came to the attention of Bar Counsel and subsequently the Grievance Commission because the client complained after the relationship had ended. The testimony and other evidence about Attorney Nadeau's conduct in connection with this relationship impressed the Grievance Commission as being serious enough to warrant this Court's consideration of a sanction of possible suspension or disbarment. However, that same complainant and Attorney Nadeau have now reunited in their romantic relationship. The former client and complainant now denies that Attorney Nadeau acted unprofessionally concerning her or that she suffered any harm from his conduct. In recommending as disposition a dismissal with a warning, Bar Counsel has taken into account the complainant?s reversal of position and the fact that Attorney Nadeau has no prior history of such conduct. Any future misconduct of a similar nature would be closely scrutinized and this history would be considered as an aggravating factor.
Accordingly, it is hereby ORDERED that the proceeding in GCF #03-255 is dismissed with a warning to Attorney Nadeau to refrain from such misconduct in the future.
GCF #03-335
During the months of June and July of 2003, Attorney Nadeau was involved in an acrimonious departure of two attorneys from his law firm. Civil cross claims arising from a dispute over ownership of accounts receivable owed to the firm as of the date of the attorneys' departure were filed in the Superior Court. In that Superior Court litigation, the opposing parties filed pleadings that contained information about Attorney Nadeau's sexual relationship with the former client that was subject to the complaint in GCF #03-255. Attorney Nadeau sought to have that record sealed. In his initial efforts, Attorney Nadeau sent two items of correspondence to his adversaries' counsel that he simultaneously faxed directly to the represented opposing parties. Attorney Nadeau's conduct violated M. Bar R. 3.6(f) that prohibits such direct contact with represented persons. After the disciplinary hearing, the Grievance Commission reprimanded Attorney Nadeau for that misconduct. Attorney Nadeau has an appeal pending seeking to have that ruling vacated, but will be withdrawing that appeal.
GCF# 04-314
The third grievance complaint was commenced on a sua sponte basis by Bar Counsel. When the Grievance Commission conducted its preliminary review of that matter, it found probable cause to believe that misconduct had occurred and referred the matter to hearing before a different panel of the Grievance Commission; see M. Bar R. 7.1(d)(5). In light of the pending related disciplinary cases in this Court, and the proposed resolution contained herein, the Grievance Commission authorized the matter to proceed directly to Court.
As reflected in the facts found concerning GCF # 03-335 (above), Attorney Nadeau endeavored to have a Superior Court record sealed to prevent public disclosure of his affair with his former client (the subject of GCF # 03-255 - above). When the presiding Superior Court justice denied Attorney Nadeau's request to seal that court's record, Attorney Nadeau sent a letter to that justice stating that, in his own view, and the view of many others who were not identified, the justice had failed to adhere to established legal principles underlying the Rules of Civil Procedure. Attorney Nadeau spoke of "outright shock" concerning the justice's exercise of discretion in his ruling. Attorney Nadeau referred to the justice's decision as "horrible" and causing Attorney Nadeau's wife and children to suffer. Attorney Nadeau claimed that the further suffering of his wife and his children was "not because of my affair which by that time was old news in my family wherein tremendous, positive healing had occurred, but because of what you chose to do to reopen and tremendously expose the wounds."
Attorney Nadeau's conduct was discourteous and degrading to the Superior Court tribunal in violation of M. Bar R. 3.7(e)(2)(vi).
In accordance with Bar Counsel's recommendation, and with agreement of Attorney Nadeau, on the basis of the conduct set forth in GCF#03-335 and GCF#04-314 a public reprimand is imposed. All of these violations of the Maine Bar Rules are serious. Attorney Nadeau is ORDERED to conduct himself in the future so as to avoid further occasions of professional misconduct. By agreeing to this disposition, Attorney Nadeau acknowledges that he feels remorse for his actions. The Court cautions him to utilize that remorse to inform his judgment, and to choose his best judgment over his inclination to impulsivity in the future.
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Albert P.C. Lefebvre
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Docket No.: BAR-98-4
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 24, 2001
Respondent: Albert P.C. Lefebvre
Bar Number: 002800
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of An Attorney; Excessive Fees; serving Identity of Funds and Property; Misconduct During Representation; Misconduct before a Tribunal
ORDER OF DISBARMENT
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1), (2) on an information filed by the Board of Overseers of the Bar against the Respondent, Albert P.C. Lefebvre. Lefebvre has been served with a copy of the information and summons.
Lefebvre is an attorney who practices in Maine and is subject to the Maine Bar Rules. The two count information charges, inter alia, that Lefebvre violated M. Bar R. 3.1(a) (conduct unworthy of an attorney); 3.2(f)(2), (3), (4) (other conduct adversely reflecting on honesty, trustworthiness, or fitness to be a lawyer, conduct involving dishonesty and fraud, and conduct prejudicial to the administration of justice); 3.3(a) (misconduct involving excessive fees); 3.6(a)(2)(3) (misconduct during representation); 3.6(e)(2)(iii), (iv) (misconduct involving preserving the identity of funds and property); 3.7(b) (misconduct during litigation); and 3.7(e)(1) (misconduct before a tribunal).
On June 23, 1998, following a jury trial, a judgment of conviction of one felony count of perjury (Class C) was entered against Lefebvre pursuant to 17-A M.R.S.A. ? 451 (1983 & Supp. 2000). The perjury resulted from Lefebvre's having made one or more false material statements to the Court (Glassman, J.) under oath during a disciplinary hearing held on November 21, 1996, in the matter of Board of Overseers of the Bar v. Albert P.C. Lefebvre, Docket No. BAR-96-8. By this Court's order of October 20, 1998, Lefebvre was suspended from the practice of law because of that conviction.
On July 24, 1998, the York County Probate Court (Nadeau, J.) issued a Decision and Order in the matter of In re: Irene A. Bisaillion, Docket No. 1991-0510(4). The court found that Lefebvre, as conservator for the Estate of Irene A. Bisaillion, engaged in misconduct including defalcation, and that such conduct constituted a violation of his fiduciary duties. He was ordered to reimburse the estate in the amount of $85,365.01 and was terminated as conservator.
The Court finds that Lefebvre has violated M. Bar R. 3.1(a); 3.2(f)(2), (3), (4); 3.3(a); 3.6(a)(2), (3); 3.6(e)(2)(iii), (iv); 3.7(b); and 3.7(e)(1). Those findings are not challenged. Accordingly, it is hereby ordered that Albert P.C. Lefebvre be and hereby is disbarred from the practice of law in the State of Maine effective this date.
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Warren M. Turner, Esq.
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Docket No.: BAR-04-9
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 27, 2006
Respondent: Warren M. Turner, Esq.
Bar Number: 001623
Order: Suspended Suspension
Disposition/Conduct: Illegal Conduct that Adversely Reflects on the Lawyer's Honesty, Trustworthiness, or Fitness as a Lawyer in other Respects
ORDER
This matter was heard before the Court on July 26, 2006, pursuant to M. Bar R. 7.2(b)(1) and (2). The action began with the Board's filing of an Information against the Respondent Warren M. Turner, an attorney with an office in Yarmouth, Maine. In its Information, the Board alleged that Mr. Turner engaged in violations of M. Bar R. 3.1(a) and 3.2(f)(2). Present at the hearing were Aria eee, Esq., assistant bar counsel, Warren M. Turner, Esq., and Malcolm L. Lyons, Esq., representing Mr. Turner.
The relevant facts are as follows: On August 22, 2003, Attorney Lyons filed a letter with Bar Counsel self-reporting his client, Mr. Turner, for having pled to four criminal charges (all Class D offenses) arising from his failure to file Maine State tax returns for the years 1998 through 2001. Mr. Turner was sentenced to two consecutive one-year sentences, which were suspended, and fined $1000. He was also placed on probation and required to complete 100 hours of public service work. Mr. Turner has since successfully completed his probation and paid the relevant fines.
The Court finds that Mr. Turner violated M. Bar R. 3.2(f)(2) by engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer. Likewise, the conduct is unworthy of an attorney. By his admission, Mr. Turner acknowledges that his actions demonstrated multiple instances of unprofessional conduct. Mr. Turner, who was admitted to practice in 1973, has had no prior disciplinary history.
Having found these violations of the Maine Bar Rules, and agreeing with the parties that they are serious, the Court must now consider the appropriate sanction. The Court has considered the purpose of this bar disciplinary proceeding in imposing a sanction in this case. It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. The Court acknowledges that for many years Mr. Turner has successfully managed his civil law practice, concentrating in real estate and business matters, and he has done so without previous disciplinary action.
Accordingly, the Court hereby ORDERS that Warren M. Turner, Esq. be and hereby is suspended from the practice of law in Maine for a period of ninety days commencing July 26, 2006, with that suspension itself suspended.
In the event that a grievance complaint is received by Bar Counsel concerning alleged misconduct occurring on this date or thereafter, such complaint shall be processed under either M. Bar R. 7.1(c) or 7.1(d) as appropriate. In the event a preliminary review panel finds probable cause of misconduct under M. Bar R. 7.1(d)(5), the matter shall then be filed directly before the Court under M. Bar R. 7.2(b). Additionally, any apparent violations of the conditions of this Order shall be filed by bar counsel directly with this Court.
For the Court
Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Frank B. Walker
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Docket No.: BAR-06-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 24, 2006
Respondent: Frank B. Walker
Bar Number: 000058
Order: Resignation
Disposition/Conduct:
ORDER
Pending before the Court is Attorney Frank B. Walker's voluntary resignation dated August 25, 2006 supported by his Affidavit pursuant to M. Bar R. 7.3(g). On September 13, 2006 the Board of Overseers of the Bar considered this matter and agreed to unanimously recommend the Court's acceptance of Attorney Walker's resignation from the Maine bar subject to a 60-day period for him to close his practice and further conditioned on Attorney Walker's payment to the Board of Overseers of one-half of the Board's cost for the transcription of the Grievance Commission's earlier disciplinary proceeding. Attorney Walker made that payment to the Board on October 5, 2006.
Therefore, it is hereby ORDERED pursuant to M. Bar R. 7.3(g)(3) that Frank B. Walker's resignation from the Maine bar is accepted, and effective December 31, 2006 his name shall then be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Attorney Walker shall comply with all of the necessary notification reporting requirements of M. Bar R. 7.3(i)(1)(B) by December 15,2006.
Pursuant to M. Bar R. 7.3(g)(3), Attorney Walker's supporting Affidavit is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. However, should Attorney Walker seek reinstatement to the Maine bar that Affidavit will then be made public without further Order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. David A. Vincent, Esq.
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Docket No.: GCF-05-30
Issued by: Grievance Commission
Date: November 17, 2006
Respondent: David A. Vincent, Esq.
Bar Number: 009395
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Inadequate Preparation
REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION
On July 10, 2006 and October 10, 2006, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public in accordance with Maine Bar Rule 7.1(e)(2). The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis and the Respondent David A. Vincent, Esq. appeared Pro se. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar dated May 2, 2006 alleging misconduct in Respondent's representation of two clients in separate cases. For Count I, the Petition alleges violations of M. Bar R. 3.1(a), 3.2(f)(4), and 3.6(a)(1)(2)(3); and in Count II alleged violations of M. Bar R. 3.1(a), 3.2(f)(4), 3.4(a)(2) and 3.6(a)(1)(2)(3).
The Panel admitted Board exhibits 1, 1(a), 1(b), 2 through 9, 9(a) through 9(g), 10 through 16, 16(a), 16(b), 17 through 22, 23(a), 23(b), 24, 25, and 26 and Respondent's exhibit 1.
COUNT I-GCF #05-301 (Carlos Bones)
The Panel heard testimony from the Respondent; the Respondent?s former client; Carlos Bones; Katherine Priest, LCSW from the Charleston Correctional Facility; Anne V. Hayward, Associate Clerk of the Washington County Superior Court; and Paul Cavanaugh, Assistant District Attorney for Washington County. Having heard the testimony and upon a review of the evidence presented during the hearing, the Panel makes the following findings:
FINDINGS
At all times relevant, Respondent has been an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules.
On April 6, 2005, Justice E. Allen Hunter appointed the Respondent as a court-appointed attorney for Carlos Bones' appeal on a conviction for sexual abuse of a minor. From March of 2005 and during all times relevant hereto, the Respondent was associated with the law firm of Gregory B. Brown, P.A. with an office located at 129 Elm Street in South Portland, Maine, and a Notice of Appointment was sent to Respondent at that address. Prior to the notice being sent to the Respondent, the associate clerk of the Washington County Superior Court had a very difficult time reaching Mr. Vincent at his South Portland office, finally making contact after a number of calls. Respondent recalls receiving a call from the clerk's office although the Respondent testified that he was under the mistaken belief that he was being appointed to represent Mr. Bones in a "post-conviction review" rather than an appeal. Respondent also testified that he received notice of his appointment "a couple of days" before filing a pleading styled as ''Motion to Enlarge Time for Filing Petition for Post-Conviction Review" on May 5, 2005, a day before Mr. Bones' law court brief was due for his appeal. At the time of that filing, Respondent made no attempt to ascertain the procedural posture of Mr. Bones' case, and never requested a copy of his file from prior counsel. However, this was only one of many lapses in judgment the Respondent had while representing Mr. Bones.
The Respondent's "Motion to Enlarge Time for Filing Petition for Post-conviction Review" dated May 5, 2005 was granted one month later on June 7,2005, only to be rescinded two weeks later on June 21, 2006 as Defendant Bones had not exhausted his appellate remedies. But approximately a month and a half-after filing his motion, the Respondent still was unaware of the procedural history of his case, and had had no contact with Mr. Bones. As a result of his neglect of this matter, the Law Court issued an Order of Dismissal of Mr. Bones' appeal on June 29, 2005.
The Respondent was uncertain as to whether he received the Notice of Appointment in a timely fashion; uncertain as to whether he received the Assistant District Attorney?s Motion to Reconsider dated June 17, 2005; and uncertain as to whether he received a briefing schedule from the Law Court. Even if we take the Respondent?s represents facts at face value a simple inquiry to the Washington Count' clerk?s office should have provided Respondent with an understanding of the case's status and procedural posture. The Panel finds that Respondent easily could have ascertained, in the ordinary course of representation, that the Bones appointment involved an appeal to the Law Court. If he had, the Respondent could have filed an opposition to the State's motion to dismiss the appeal, and after the dismissal of the appeal, the Respondent could have filed a Motion to Reconsider the Law Court's dismissal of the Appeal after he received that Order.
What is clear to the Panel is that the Respondent violated the standard of care of a reasonably prudent attorney by failing to take the steps necessary to fully understand the scope of his appointment as the attorney for Mr. Bones, and to take the steps necessary to protect his client's interests. Upon receipt of his appointment, the Respondent failed to ascertain the applicability of any deadlines which might affect his client, failed to communicate with his client in any way in violation of Maine Bar Rule 3.6(a)(3), and agreed to handle a matter in which he was not qualified to handle in violation of Maine Bar Rule 3.6(a)(1). Although Mr. Bones' appeal was reinstated by a successor counsel, Respondent's conduct resulted in an unnecessary delay in the administration of justice for Mr. Bones regardless of the merits of his appeal.
he Panel concludes that Respondent violated Maine Bar Rules 3.1(a)(3) and 3.6(a)(1), and that the appropriate sanction for these violations is that the Respondent receives a public Reprimand.
For the Grievance Commission
David S. Abramson, Esq., Chair
Martha C. Gaythwaite, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Michael X. Savasuk, Esq.
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Docket No.: GCF 05-308
Issued by: Grievance Commission
Date: July 12, 2006
Respondent: Michael X. Savasuk, Esq.
Bar Number: 002708
Order: Reprimand
Disposition/Conduct: Failure to Respond to Bar Counsel; Conduct Unworthy of an AttorneyConduct During Representation: Standards of Care and Judgment; Responsibilities Regarding Non-Lawyer Assistants
REPORT OF FINDINGS AND DETERMINATION OF PANEL B OF THE GRIEVANCE COMMISSION
This matter came before Panel B of the Grievance Commission on an Amended Disciplinary Petition of Bar Counsel alleging that Respondent Michael X. Savasuk of Portland, Maine violated the following Maine Bar Rules:
Rule 2(c) - failure without good cause to respond to Bar Counsel
Rule 3.1 (a) - conduct "unworthy of an attorney"
Rule 3.2(f)(1) - direct or indirect violation of the rules
Rule 3.6(a) - failure to exercise reasonable care and skill and apply the lawyer's best judgment in the performance of professional services
A public hearing was conducted on June 15, 2006 in Portland, Maine to determine whether a Bar Rule violation had occurred.
The Board of Overseers of the Bar ("the Board") was represented by Aria eee, Esq. Respondent Michael X. Savasuk, Esq. was present and represented by Peter J. DeTroy, Esq. No objection was made to the composition of the Panel. At the hearing, the Panel admitted Board Exhibits 1 - 16 without objection. The Panel also heard testimony from the Respondent, Michael X. Savasuk, Esq., Susan Adams, Julia A. Zimont, and Nancy Hall Delaney. At the hearing, the Board also alleged that Respondent Michael Savasuk violated Rule 3.13(c) governing a lawyer's responsibilities regarding non-lawyer assistants. On the basis of this evidence, Panel B finds that Respondent Michael Savasuk did violate Maine Bar Rules 2(c) and 3.13(c), and thus 3.1(a), 3.2(f)(1), and 3.6(a). For the reasons stated below, the Panel reprimands Michael X. Savasuk for his violation of the foregoing Bar Rules.
FINDINGS OF FACT
On May 13, 2005, Michael Savasuk ordered, via facsimile, a transcript from Jay H. Pilchick & Associates, a court reporting service in Miami, Florida. On May 19, 2005, Mr. Savasuk received a corresponding bill, which he asked his secretary, Julia Zimont, to investigate because of an earlier partial prepayment. Ms. Zimont did not do so. A second request for payment was mailed to Mr. Savasuk by Jay H. Pilchick & Associates without response. On August 19, 2005, Mr. Pilchick wrote to Mr. Savasuk for a third time and enclosed a draft complaint against him to the bar (addressed to the Maine State Bar Association and not to the Board of Overseers), which he indicated would be mailed by August 29 if the bill remained outstanding. Mr. Savasuk did not respond.
On September 15, 2005, the Board of Overseers received Mr. Pilchick's grievance complaint against Michael Savasuk for failure to pay the outstanding bill for court reporting services. That day, Bar Counsel wrote to Mr. Savasuk informing him of the complaint and requesting a response by October 6. Mr. Savasuk did not respond.
Sometime after October 6, Board of Overseers staff member Nancy Delaney called Mr. Savasuk's office on two occasions to follow up the earlier September 15 correspondence. Both times, Ms. Delaney identified herself as a Board employee to the female who answered the telephone, and both times asked to speak directly with Mr. Savasuk. Each time, the female who answered the phone put Ms. Delaney on hold, then returned and reported that Mr. Savasuk was unavailable because he had just taken another telephone call. Because Ms. Delaney suspected that she was being treated evasively, she enlisted Deputy Bar Counsel Nora Sosnoff's assistance.
On October 28, Ms. Sosnoff called Attorney Savasuk's office. Ms. Sosnoff identified herself as Deputy Bar Counsel and asked to speak with Attorney Savasuk. The female who answered placed Ms. Sosnoff briefly on hold. Within a minute, the female voice returned to the call and said that Mr. Savasuk had just taken another call. Ms. Sosnoff emphasized that the office of Bar Counsel had now called three times and each time had received the same response. Ms. Sosnoff firmly and plainly requested that the message be relayed to Attorney Savasuk that it was very important that he call her back that same day. The female acknowledged that she had heard the message.
Mr. Savasuk did not return Ms. Sosnoff's call by the close of business on October 28. Accordingly, Assistant Bar Counsel Aria eee sent Mr. Savasuk a letter citing his failure to respond to the grievance complaint as of that date, providing a preliminary panel review date, and offering Mr. Savasuk the further opportunity to file a response by November 3, 2005. Again, Mr. Savasuk did not respond.
On November 28, a Grievance Commission panel found probable cause to believe that Mr. Savasuk had engaged in misconduct subject to sanction and authorized Bar Counsel to prepare a disciplinary petition.
In the meantime, Mr. Savasuk testified that, at the end of December (after Christmas), he noticed that the Pilchick & Associates bill was still outstanding. Rather than pay the bill, now some seven months old, he again asked Ms. Zimont to contact Mr. Pilchick to seek an explanation of the bill in light of the previously-mentioned partial prepayment. On January 19, 2006, Bar Counsel filed the Board's first Disciplinary Petition and mailed it to Mr. Savasuk. Mr. Savasuk had still failed to pay Mr. Pilchick's outstanding bill or to contact Bar Counsel. Once again, Mr. Savasuk did not answer the Petition. On February 28, 2006, Mr. Savasuk was served in-hand with the Petition, on the deputy sheriff's third try. By letter dated March 1, he responded to the Petition and mailed a copy of his response together with a payment check to Mr. Pilchick.
In his response, and at the evidentiary hearing before this Panel, Mr. Savasuk indicated that he did not receive any of the letters from the Board or Mr. Pilchick, or any of the telephone messages from the Board. He blamed his secretary, Julia Zimont, for this failure. Ms. Zimont submitted to this Panel an affidavit stating, "It was never my intention to circumvent payment of invoices, OR any communications from the Board of Overseers of the Bar. Any failure of my job performance causing this situation was unintentional and is deeply regretted." In his response to the Board, Mr. Savasuk stated, "In order that this never happen again, I have given specific written instructions and amendment to office procedures that all of my bills and notices are to be placed on my desk daily." According to Mr. Savasuk, these changes were made in writing to a preexisting office procedures document entitled "Office Procedures - Daily Grind." Mr. Savasuk acknowledges receipt of the original bill from Mr. Pilchick. In addition, when Mr. Savasuk noticed that Mr. Pilchick had still not been paid in late December, he apparently took no action either to see that Mr. Pilchick was paid immediately, or to ascertain why his secretary had failed to follow up with his instruction to contact Mr. Pilchick some seven months earlier. Finally, between late December and March 1, when Mr. Savasuk sent Mr. Pilchick full payment, Mr. Savasuk apparently did nothing to double-check with his secretary that she had contacted Mr. Pilchick, as he had asked her to do a second time (she had not). Unfortunately, the foregoing internal communication breakdown was not without precedent.
According to her own statement (Board Exh. 11), on July 3, 2003, Julia Zimont received the Board's annual registration packet for Mr. Savasuk, which was due to be returned to the Board by July 31, 2003. That deadline was not met. With the filing of a late fee, a grace period was provided until August 31, 2003. Again, that deadline was not met. On September 4, 2003, according to her statement, Julia Zimont received a certified letter from the Board indicating that, unless Mr. Savasuk's bar registration forms were received by October 3, 2003, he would be automatically suspended from the practice of law under Bar Rule 12(c). Once again, that deadline was not met, and Mr. Savasuk was automatically suspended from the practice of law.
Mr. Savasuk's license suspension was precipitated not only by his failure to return his annual registration packet by the due date, but also by his failure to have met his continuing legal education requirements in 2002. He was 5.45 hours short of meeting his 2002 CLE requirements.
On October 10, 2003, Mr. Savasuk submitted a letter to the Board of Overseers stating, "I failed to respond to the Board's correspondence warning of the CLE deficiency because I did not know that I had received such correspondence. . .. I can honestly state that for whatever unexplainable reason, this office's secretary just did not pass the correspondences on to counsel in this office. Enclosed herewith is a correspondence from our secretary which we have asked her to write, confirming the unfortunate situation that has occurred in this office."
Enclosed with Mr. Savasuk's October 10 letter was a letter dated October 8 addressed to Mr. Savasuk from Julia Zimont. Just as she has in the instant matter, Ms. Zimont took responsibility for Mr. Savasuk not responding to the Board's mailings, stating "Please accept my deepest apologies for this mess. I acknowledge full responsibility for the failure of this process."
While Mr. Savasuk indicated in his October 10 letter to the Board that he was "deeply saddened and extremely embarrassed by this situation, and can sincerely state that it will never happen again," he testified at the disciplinary hearing before this Panel that he took no steps to change his office protocol to ensure that he reviewed mail addressed to him. While he testified that he verbally reprimanded Ms. Zimont, he continued not only to employ Ms. Zimont but to allow her to open his mail and determine what mail he should see and what he need not.
BOARD ALLEGATIONS OF MISCONDUCT
Michael Savasuk is alleged to have violated several Maine Bar Rules because of his failure to pay his professional bills and his failure to respond to Bar Counsel:
Rule 2(c) - failure without good cause to respond to Bar Counsel
Rule 3.1(a) - conduct "unworthy of an attorney"
Rule 3.2(f)(1) - direct or indirect violation of the rules
Rule 3.6(a) - failure to exercise reasonable care and skill and apply the lawyer's best judgment in the performance of professional services
Rule 3.13(c) -lawyer's responsibilities regarding non-lawyer assistants
DISCUSSION
Maine Bar Rule 2(c) requires that a lawyer "respond to any inquiry by ... Bar Counsel." Clearly, Mr. Savasuk did not do so, either in the original mailing to him by Bar Counsel of the Petition in this matter, or in response to the three telephone calls made to his office thereafter, or in response to Bar Counsel's second mailing warning him of a referral to a Grievance Panel.
As then Justice D. Brock Hornby observed, "The Board of Overseers can fulfill its responsibility to ensure lawyer discipline only if it is assured that it will receive the full cooperation of all lawyers." Board of Overseers of the Bar v. George S. Hutchins, 1989 Me. LEXIS 213. Mr. Savasuk defends himself against his undeniable failure to respond to Bar Counsel's inquiry by arguing that he did not know about Bar Counsel's inquiries because his secretary failed to inform him of them. This defense implicates squarely Maine Bar Rule 3.13(c), which mandates that lawyers take reasonable steps to ensure that their non-lawyer assistants' conduct is compatible with the lawyers' professional obligations. This Panel has no difficulty in concluding that Mr. Savasuk did not take reasonable efforts to ensure that he complied with Rule 3.13(c).
Two years before the instant failure to respond to Bar Counsel, Mr. Savasuk's secretary had not brought to his attention repeated communications from the Board regarding his annual registration and his CLE credit shortfall. As of that time, Mr. Savasuk was clearly on notice that critical professional communications were not being forwarded to him by his secretary. Despite that notice, Mr. Savasuk apparently allowed his secretary to continue to "screen" his mail, in effect delegating to her the task of determining what correspondence addressed to him he should see. Second, shortly before the instant failure to respond to Bar Counsel, Mr. Savasuk was again reminded of his secretary's professional shortcomings when he discovered in December that she had not followed up with Mr. Pilchick's office, as he had asked her to do some seven months earlier. In neither case did Mr. Savasuk take any substantive disciplinary action against his secretary or change his office protocol so that he read his own mail in the first instance. Regrettably, his most recent decision to read his own mail comes too late.
We recognize that lawyers cannot be the guarantors of the professional behavior of their non-lawyer assistants. But, the Maine Bar Rules require that they take reasonable steps to ensure that their non-lawyer assistants act in a manner consistent with the lawyers' professional obligations. In this instance, Mr. Savasuk failed to exercise the supervision and oversight necessary under Rule 3.13(c). Despite several clear warning signs that he had allowed too much latitude to his secretary to screen his mail, Mr. Savasuk continued to delegate to his secretary the critical task of determining what professional mail addressed to him should be brought to his attention. Had Mr. Savasuk read his own mail, the repeated communications both from Mr. Pilchick regarding the court reporter bill and the repeated communications from Bar Counsel regarding the instant Petition would not have been ignored.
Inadequate supervision of Ms. Zimont is also evidenced by her failure to deal appropriately with the three telephone calls received from Staff and Deputy Bar Counsel of the Board of Overseers. She failed either to connect the calls to Mr. Savasuk or to communicate to Mr. Savasuk the content of the three telephone calls, and most significantly the call from Deputy Bar Counsel Nora Sosnoff on October 10, 2005, stating that her call was the third one from the Board of Overseers and asserting the importance of Mr. Savasuk returning her call that same day.
DETERMINATION
In the event the Panel concludes lawyer misconduct subject to sanction under the Maine Bar Rules has occurred, Maine Bar Rule 7.1(e)(3) requires this Panel either to issue a dismissal with a warning or to issue a public reprimand or a finding of probable cause for suspension or disbarment and direct Bar Counsel to commence an attorney disciplinary action by filing an information pursuant to Maine Bar Rule 7.2(b). In determining an appropriate sanction, this Panel took into account the numerous communications to the Respondent that went unheeded, the importance of timely communication with Bar Counsel to the administration of the bar in general, and Respondent's prior record of non-responsiveness to the Board and Bar Counsel.
Accordingly, we believe the appropriate sanction is that Michael X. Savasuk be and hereby is issued a public reprimand for violation of Maine Bar Rules 2(c) and 3.13(c), and thus Maine Bar Rules 3.1(a), 3.2(f)(1), and 3.6(a).
For the Grievance Commission
John H. Rich III, Esq., Chair
Marjorie Medd.
Susannah White
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: AND-00-153
Issued by: Law Court
Date: January 16, 2001
Respondent: Thomas M. Mangan
Bar Number: 001743
Order: Decision Affirmed
Disposition/Conduct:
RUDMAN, J.
[¶1] Thomas Mangan appeals from the judgment of a single justice of the Supreme Judicial Court (Saufley, J.) finding that he violated several provisions of the Maine Bar Rules1 and disbarring him from the practice of law. Mangan contends, inter alia, that (1) the single justice erred in finding both an attorney-client relationship, and the search for the complainant's daughters' fathers constituted the practice of law, (2) the single justice erred in finding that Mangan made improper use of his client escrow account, and (3) he was denied a fair and impartial trial. We disagree and affirm.
[¶2] The single justice found Mangan was a lawyer who had practiced in the Lewiston area since approximately 1975. The complainant, who is Vietnamese, has lived in this country for approximately twenty-eight years. She has three adult daughters, all of whom have different fathers. Sometime in the early 1980's, the complainant approached Mangan to seek his legal assistance in obtaining child support from the father of one of her daughters. Mangan agreed to assist her but shortly thereafter was discharged. Mangan had no further contact with the complainant until she sought out his assistance again in 1990. She had received $4,000 in settlement of a personal injury claim. Because her medical bills exceeded that amount, she asked Mangan to negotiate with the medical providers in order to settle her existing obligations. Mangan agreed to assist her. He did not enter into a fee agreement with the complainant and asserts he expected to do the work without compensation. He took the $4,000 compensation check, deposited it in his client escrow account, and then paid a number of her medical bills with the money. Despite the payments made by Mangan, the complainant continued to receive phone calls from creditors and was never clear on which bills had been paid and which had not. Mangan never told the complainant that he had concluded the work and never gave her a final accounting for the payments he had made on her behalf.
[¶3] The complainant next approached Mangan about locating fathers of her two older daughters. Mangan told the complainant that he was good at searches, that he would undertake search for her, and that he expected the search would take approximately six months. She asserts that he told her she could pay him when the search was completed. Again, Mangan did not specify his expected compensation and did not enter into any fee agreement with the complainant.
[¶4] Sometime after agreeing to undertake the search for the fathers, Mangan began a consensual sexual relationship with the complainant. Mangan initiated that relationship and the complainant was, for a while, a willing participant. The single justice specifically found that at the time the sexual relationship began, Mangan had given the complainant no final accounting on the medical bills and was still searching for her daughters' fathers. The complainant was living with her husband and their daughter when the relationship with Mangan began. One evening when the complainant was visiting at Mangan's office, her husband appeared at the office. After a brief discussion, resulting in moments of uncomfortable silence, the complainant emerged from the back room and left the office with her husband. Subsequently, the complainant and her husband separated, and after that separation, the complainant sought assistance to obtain a court order requiring her husband to pay child support for their child. Mangan understood that he might become a witness to the proceeding because of the incident at his office. He therefore referred the complainant to another lawyer. In order to pay that lawyer's retainer, Mangan put his own money into his client escrow account and then wrote a check to the lawyer form that account.
[¶5] Eventually the relationship between Mangan and the complainant became strained. During this time, the complainant was struggling with depression and also began demanding money from Mangan.
[¶6] The single justice made the following relevant conclusions:
I am convinced that when [the complainant] came to understand fully that Mr. Mangan had abused his relationship with her, she attempted to obtain a financial advantage through that knowledge. Her repeated phone calls and her demands for money from October of 1996 through June of 1997 belie her assertion that she just wanted to end the relationship completely in the fall of 1996. I am also convinced that the sexual relationship between Mr. Mangan and [the complainant], spanning several years, was, at least initially, consensual. I am not persuaded that she originally had sex with him only, as she said, because "he [sic] my lawyer. " Nor do I believe that she asked him about his search for the fathers "every day," over the course of the relationship, thereby keeping the attorney-client relationship foremost in his mind.
I am convinced, however, that Mr. Mangan began the sexual relationship with [the complainant] during a time when he was acting as her attorney. I am also convinced that Mr. Mangan used information gained in his attorney-client relationship to initiate the sexual relationship and in so doing took advantage of her personal situation as well as her desire to find the fathers.2 Further, I am persuaded that he used that information to manipulate [the complainant] in order to maintain a continuing sexual relationship at a time when she would have chosen to cease her contact with him. That Mr. Mangan used his search for the fathers to manipulate [the complainant] became clear through his own testimony to that effect that, although he did find one daughter's father, ... , he did not tell [the complainant], choosing instead to "hold onto it" until he had news about both fathers. When he became angry with her, probably in late January of 1997, he "chucked it all," thereby destroying any important information he had obtained during the search. It is evident then that he misled [the complainant] regarding the success of his search, and he destroyed or made unavailable to her whatever results he had obtained when their personal relationship became difficult.
In sum, Mr. Mangan allowed his personal relationship with [the complainant] to affect his work for her, he took advantage of knowledge gained in his attorney-client relationship with [the complainant] in order to pursue and continue that sexual relationship, and he used his search for the fathers to coerce a continuing sexual relationship with her.
[¶7] We must first determine whether an attorney-client relationship existed and then whether Mangan's actions constituted "the practice of law." The single justice's finding that there was an attorney-client relationship is a factual finding that will be upheld unless clearly erroneous. Board of Overseers of the Bar v. Dineen, 500 A.2d 262, 264 (Me. 1985), cert. denied, 106 S. Ct. 2248, 476 U.S. 1141, 90 L.Ed.2d 696 (1986).
[¶8] We have held that "[t]he term 'client' includes one who is either 'rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him. '"Board of Overseers of the Bar v. Dineen, 500 A.2d 262, 264 (Me. 1985) (citing. M.R. Evid. 502(a)(1)). In Dineen, we further explained that '''[a]n attorney-client relationship does not require the payment of a fee or formal retainer but may be implied from the conduct of the parties.'" Dineen, 500 A.2d at 264-265 (quoting Matter of McGlothlen, 663 P.2d 1330, 1334 (Wash. 1983)) (emphasis added).
[¶9] We adopt the New Hampshire formulation that an attorney-client relationship is created when '"(1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.'" State v. Gordon, 692 A.2d 505, 506 (N.H. 1997) (quoting McCabe v. Arcidy, 138 N.H. 20, 25, 635 A.2d 446, 449 (1993)).
[¶10] The record is replete with evidence to support, the single justice's conclusion that there existed an attorney-client relationship between Mangan and the complainant. The complainant sought advice and assistance from Mangan. The advice or assistance sought pertained to matters within Mangan's competence and Mangan undertook the task requested of him.
[¶11] Given that definition of "attorney-client' relationship," the single justice did not commit clear error in finding that Mangan and the complainant had entered into an attorney-client relationship.
[¶12] We next consider whether Mangan's actions constituted "the practice of law." The Maine Bar Rules do not explicitly state what constitutes the "practice of law," nor have we ever defined what constitutes the "practice of law."
[¶13] The term "practice of law" is a '''term of art connoting much more than merely working with legally-related matters. '" Attorney Grievance Commission of Maryland v. Shaw, 732 A.2d 876, 882 (Md. App., 1999 (quoting In Re Application of Mark W., 491 A.2d 576, 585 (1985)). "The focus of the inquiry is, in fact, whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.'" Id. (quoting In re Discipio, 645 N.E.2d 906, 910 (1994)). Even where "'trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law."' Shaw, 732 A.2d at 883 (quoting Lukas v. Bar Ass'n of Montgomery County, 35 Md. App. 442, 448, 371 A.2d 669, 673, cert. denied, 280 Md. 733 (1977)).
[¶14] In Shaw, 732 A.2d 876, 882 (Md. App. 1999), the court noted that the practice of law includes '''[u]tilizing legal education, training, and experience [to apply] the special analysis of the profession to a client's problem. '" (quoting Kennedy v. Bar Ass'n of Montgomery County, Inc., 316 Md. 646, 662, 561 A.2d 200, 208 (1989)). The Shaw court further noted that "[t]he Hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client's legal affairs." Shaw, 732 A.2d at 883 (quoting In Re Application of R.G.S., 312 Md. 626, 632, 541 A.2d 977, 980 (1988)).
[¶15] The single justice made the following finding in determining that Mangan's search for the girls' fathers constituted the practice of law:
As attorneys' roles increase in complexity and overlap with other professions, the answer to [the question of what constitutes the practice of law] will continue to evolve. Ultimately, the question will turn on the specific facts of the work undertaken and the understanding of the parties. In determining whether Mr. Mangan was engaged in the practice of law, I have looked to, among other things, the understandings of both [the complainant] and Mr. Mangan, the trust and confidence reposed in Mr. Mangan by [the complainant], the context in which the request for services arose-both physical and conceptual, the skills necessary to the completion of services, the need for discretion and confidentiality in rendering the services and the nature of the services themselves.
[¶16] The determination of what constitutes the practice of law is very fact specific. In this instance, the record shows that the complainant approached Mangan in his law office, she sought Mangan's advice on the matter while she was there on other attorney-client business, Mangan did not tell the complainant that he was not undertaking the search as her lawyer, the complainant had a reasonable belief that he was undertaking the search as her attorney, and she told him very personal and confidential information about her relationship with the girls' fathers, Because there is competent evidence in the record to support the single justice's findings, she did not commit clear error in holding that Mangan was engaged in the practice of law while searching for the girls' fathers.3
[¶17] As the single justice noted, "no funds belonging to the lawyer or his law firm shall be deposited" in a client escrow account. See M. Bar R. 3.6(e)(1), (2). The single justice found as a matter of fact that Mangan placed his own funds in his client escrow account and, on the complainant's behalf, wrote a check to another attorney from that account. The single justice also found, and we agree, that the use of the client escrow account for this purpose constituted an unmistakable violation of M. Bar R. 3.6(e)(1)4 and was conduct unworthy of an attorney for the purposes of M. Bar R. 3.1(a).5 An attorney may not, under any circumstances, mingle his funds with the funds belonging to his clients in the escrow account.
[¶18] Both in his brief and at oral argument to us, Mangan argued extensively that he was denied a fair and impartial trial. We first note Mangan failed to make the arguments he makes on appeal before the single justice. An issue not raised before the single justice is deemed waived. See McAfee v. Cole, 637 A.2d 463, 467 (Me. 1994) (Dana, J. dissenting) ("a party who raises an issue for the first time on appeal will be deemed to have waived the issue"). In the instant situation, Mangan's intemperate attacks on the single justice and Bar Counsel are further evidence of his unfitness for the practice of law. The record is devoid of any evidence to sustain Mangan's unfounded accusations. Although Mangan disputes many of the factual findings of the single justice, those findings are supported by the record and would only be set aside if they were clearly erroneous, giving due regard to the opportunity of the single justice to evaluate the credibility of witnesses. It is clear that the single justice found much of Mangan's testimony not to be credible, a conclusion fully supported in the record.
[¶19] Mangan received a fair and impartial trial. He was represented by counsel;6 he challenged the evidence offered by Bar Counsel; and obtained a favorable result on those counts on which Bar Counsel failed to sustain his burden of proof. The findings of the single justice are supported by the record and the sanction imposed, was justified.
[¶20] Mangan's other contentions are meritless.
The entry is:
Judgment affirmed.
Attorneys for Plaintiff
J. Scott Davis, Bar Counsel
Karen G. Kingsley, Asst. Bar Counsel (orally)
PO Box 527
Augusta, ME 04332-0527
For Defendant
Thomas M. Mangan
PO Box 3112
Lewiston, ME 04243-3112
Panel
Wathen, C.J., and Rudman, Dana, Alexander, and Calkins, JJ.
Footnotes
1The single justice found that:
2The complainant was embarrassed about having had three daughters with three different men, only one of whom she had married.
3Mangan, interestingly enough, denies the existence of an attorney-client relationship; however, he also testified as follows:
Q. Why is it that you didn't deposit [the $2,000] in your checking account or your savings account?
A. The escrow account was client's money.
Q. But it wasn't her money?
A. Sure it was, once I gave it to her, it was her money.
4. M. Bar R 3.6 provides in pertinent part:
(e) Preserving Identity of Funds and Property.
(1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(i) Funds reasonably sufficient to pay institutional service charges may be deposited therein; and
(ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client: in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.
M. Bar R. 3.6(e)(1).
5M. Bar R 3.1 provides in relevant part:
(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct ?unworthy of an attorney? for purposes of 4 M.R.S.A. § 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.
M. Bar R. 3.1(a)
6On appeal, Mangan appeared on his own behalf.
Board of Overseers of the Bar v. Brian D. Condon, Jr., Esq.
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Docket No.: BAR-06-3
Issued by: Single Justice, Maine Supeme Judical Court
Date: December 27, 2006
Respondent: Brian D. Condon, Jr., Esq.
Bar Number: 008588
Order: Suspended Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial Administration of Justice;Preserving Identity of Funds and Property; Maintaining Complete Record of Funds
DECISION AND ORDER
This matter came before the Court upon the filing of an Information by the Board of Overseers of the Bar. The Board was represented by Bar Counsel J. Scott Davis, and Deputy Bar Counsel Nora Sosnoff and Attorney Brian D. Condon, Jr., Esq. was represented by Attorney Karen G. Kingsley. The Court heard testimony from Attorney R. Howard Lake and Attorney Condon. Following the hearing, the parties by agreement, offered the Disciplinary Petition with attachments. Because the attachments contain attorney-client confidential material, at the request of the parties, they were received under seal. The Court makes the following findings:
CONCLUSIONS OF LAW
Attorney Condon has violated the following provisions of the Maine Bar Rules: 3.1(a), 3.2(f)(1), 3.2(f)(3),3.2(f)(4), 3.6(a), 3.6(e)(1), and 3.6(e)(2)(iii).1
It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. "The purpose of [a bar disciplinary] proceeding is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable to discharge properly their professional duties." M. Bar R. 2(a) (Purpose of Rules). The Court has considered the purpose of bar disciplinary proceedings in imposing the sanction in this case and recognizes that no clients of Condon have (joined in this grievance and he has no previous disciplinary record with the Board or this Court.
To the extent that he has accepted responsibility for his actions, Condon has apologized to the Court, to the administrative staff at HLC, and to his former law partner, R. Howard Lake, Esq. Condon has affirmed that he will make every effort to ensure that no future violations of any Bar Rules occur.
Accordingly, the Court HEREBY ORDERS that Brian D. Condon, Jr. be and hereby is suspended from the practice of law in Maine for a period of one year commencing January 1, 2007, with all but the second fifteen (15) days of that suspension itself being suspended subject to the following terms and conditions:
a) Prior to his returning to active practice any time after February 1, 2007, at his own expense, Attorney Condon shall enter into a monitoring agreement with the Maine Assistance Program for Lawyers and Judges (MAP) in a form acceptable to Bar Counsel and the Director of MAP, and shall undergo assessment, testing, and treatment, all to the satisfaction of the Director of MAP;
b) Prior to his returning to active practice any time after February 1, 2007, Attorney Condon will have identified a local lawyer, approved by the Director of MAP, who will agree to monitor Attorney Condon's practice by reviewing an inventory list of his files, trust account activity, and be available to speak with Attorney Condon and vice versa on a regular basis, but at least once per month about any problems or issues with the practice;
c) Attorney Condon will continue his treatment for ADD, and will sign whatever releases are necessary so that his treatment provider will be able to speak with the Director of MAP;
d) In the event any new grievance complaint is received by Bar Counsel prior to January 1, 2008, concerning alleged misconduct by Attorney Condon such complaint shall be processed under either Bar Rule 7.1(c) or 7.1(d), as appropriate, but in the event a preliminary review panel finds probable cause of misconduct under Bar Rule 7.1(d)(5), the matter shall then be filed directly in the Court under Bar Rule 7.2(b); and
e) Any apparent violation of the conditions of this Order shall be brought to the attention of the Court by Bar Counsel.
For the Court
Hon. Howard H. Dana, Jr. Associate Justice - Maine Supreme Judicial Court
Footnotes
13.1 Scope and Effect
3.2 Admission, Disclosure and Misconduct
(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;
. . . .
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice.
3.6 Conduct During Representation
(e) Preserving Identity of Funds and Property.
(2) A lawyer shall:
(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them;
Board of Overseers of the Bar v. Earle S. Tyler, Jr.
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Docket No.: BAR-05-4
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 14, 2005
Respondent: Earle S. Tyler, Jr.
Bar Number: 001745
Order: Resignation
Disposition/Conduct:
ORDER
This matter is before the Court to consider Attorney Earle S. Tyler Jr.'s voluntary resignation dated June 28, 2005, that has been tendered pursuant to M. Bar R. 7.3(g). Attorney Tyler's letter of resignation is supported by his Affidavit dated June 28, 2005. On July 22, 2005, the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Tyler's resignation from the Maine bar.
Therefore, it is hereby ORDERED
Pursuant to M. Bar R. 7.3(g)(3), Earle S. Tyler Jr.'s resignation from the Maine bar is accepted immediately.
As required by M. Bar R. 7.3(g)(3), Earle S. Tyler Jr.'s supporting affidavit dated June 28, 2005 hereby impounded, and shall not be available for inspection purposes unless otherwise ordered by the Court. Should Earle S. Tyler Jr. seek reinstatement to the Maine bar, this Affidavit may then be made public without further Order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Hon. Warren M. Silver, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert Levine, Esq.
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Docket No.: GCF-04-381
Issued by: Grievance Commission
Date: October 25, 2005
Respondent: Robert Levine, Esq.
Bar Number: 000347
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment/Adversary Conduct
REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION
On October 25, 2005, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Robert Levine, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on July 21, 2005. Attorney Levine filed an Answer to the Disciplinary Petition on August 26, 2005.
Present at the Disciplinary Hearing were Assistant Bar Counsel Aria eee, representing the Board and Attorney Robert Levine, represented by Karen Kingsley, Esq. The complainant, Steven Dunn was present, represented by Robert Rubin, Esq.
The Panel accepted comments from the parties and reviewed the proposed findings presented by the parties. The Panel then issued the following disposition:
FINDINGS
3.1 Scope and Effect
(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S.A. ? 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.
3.2 Admission, Disclosure and Misconduct
(f) Other Misconduct. A lawyer shall not:
(4) engage in conduct that is prejudicial to the administration of justice.
3.6 Conduct During Representation
(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not
(2) handle a legal matter without preparation adequate In the circumstances; or
3.7 Conduct During Litigation
(e) Adversary Conduct.
(1) In appearing in a professional capacity before a tribunal, a lawyer shall:
(i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth ...
Attorney Levine has taken responsibility for his actions and the subsequent distress it caused Mr. Dunn. At the hearing, Attorney Levine took responsibility for the error and expressed his remorse that it happened.
As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand in this case serves those purposes.
Nearly a year ago, Attorney Levine paid a sum certain to Mr. Dunn to compensate for the illegitimate request for a Writ of Execution. The panel finds that a reprimand is a sufficient sanction because Mr. Levine is remorseful and acknowledges his misconduct.
Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1(e)(3)(c) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction.
These factors are:
(ii) whether the attorney acted intentionally, knowingly, or negligently;
(iii) the amount of actual or potential Injury caused by the attorney's misconduct; and
(iv) the existence of any aggravating or mitigating factors.
The Panel has accordingly considered the foregoing factors and finds that Attorney Levine has violated duties owed to the public and the legal system. He acted knowingly and or negligently and there was actual injury to Mr. Dunn. Attorney Levine's civil settlement serves as a mitigating factor to the current disposition.
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Robert Levine.
For the Grievance Commission
Charles W. Smith, Esq., Chair
Stephen J. Schwartz, Esq.
Joseph R. Reisert, Ph.D.
Board of Overseers of the Bar v. E. Christopher L'Hommedieu, Esq.
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Docket No.: GCF-05-41
Issued by: Grievance Commission
Date: December 15, 2005
Respondent: E. Christopher L'Hommedieu, Esq.
Bar Number: 008299
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Conduct During Representation: Improper Concealment, Statement or Evidence; Adversary Conduct
REPORT OF FINDINGS OF PANEL B OF THE GRIEVANCE COMMISSION
On December 15, 2005, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, E. Christopher L'Hommedieu, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 21, 2005. Attorney L'Hommedieu filed an Answer to the Disciplinary Petition on October 25, 2005.
Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board, and Attorney Jennifer Ferguson, with her client, respondent, E. Christopher L'Hommedieu. The complainant, Cynthia McConnell was also in attendance.
The Panel accepted comments from the parties and Ms. McConnell and reviewed counsel's proposed stipulated findings. The Panel then issued the following disposition:
FINDINGS
A. Violation of M. Bar R. 3.1(a)
Like the previous grievance against Attorney L'Hommedieu, the current violations concern dishonest conduct. By reviewing his actions in total, it is clear that Attorney L'Hommedieu committed "conduct unworthy of an attorney". After Magistrate Oram issued the "Interim Order," Attorney L'Hommedieu was required to comply with that Order.
B. Violation of M. Bar R. 3.2(f)(3)(4)
Attorney L'Hommedieu knew that his client's child support affidavit was due and that Mr. McConnell's income was higher than the District Court or Ms. McConnell had estimated. While competent advocacy is expected of lawyers, overzealous representation can lead, as it did here, to a violation of the Code of Professional Responsibility. Attorney L'Hommedieu went too far in advancing his client's interests.
B. Violation of M. Bar R. 3.7(b); 3.7(e)(1)(i)
By withholding the affidavit and then proposing a settlement offer regarding child support, Attorney L'Hommedieu concealed information and mislead the parties and the District Court. As an officer of the court, Attorney L'Hommedieu was obligated to ensure that the District Court's information was accurate and he is presumed to know that complete candor with the court is the responsibility of every lawyer admitted to practice. See Board of Overseers v. William Fogel BAR 99-7.
CONCLUSION AND SANCTION
As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand serves those purposes.
Therefore the Panel concludes that the following violations occurred:
Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1(e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction.
These factors are:
The Panel has accordingly considered the foregoing factors and finds that Attorney L'Hommedieu has violated duties owed to the client and the legal system. He acted knowingly and purposefully, causing actual injury to the court and to the minor children, whose primary caretaker did not receive the adjusted support amounts in a timely fashion. As an aggravating factor, and as noted above, in December 2001, Attorney L'Hommedieu previously was suspended for engaging in dishonest conduct. As a mitigating factor, Attorney L'Hommedieu is remorseful and acknowledges that his overzealous representation of Mr. McConnell prevented him from complying with his duties to the District Court.
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney E. Christopher L'Hommedieu.
For the Grievance Commission
David R. Weiss, Esq., Chair
John H. Rich III, Esq.
Susannah White
Board of Overseers of the Bar v. Raymond J. DiLucci, Esq.
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Docket No.: BAR-05-06
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 26, 2006
Respondent: Raymond J. DiLucci, Esq.
Bar Number: 007056
Order: Reprimand Reciprocal Discipline
Disposition/Conduct:
ORDER
This Court has received a certified copy of the Order of the New Hampshire Supreme Court dated December 30, 2004, publicly censuring Attorney Raymond J. DiLucci for his violations of the Supreme Court's Rules and the Rules of Professional Conduct. Attorney DiLucci has notified the Court of his consent to the Board of Overseers of the Bar's request for imposition of identical discipline in Maine.
Therefore, by agreement of the parties, this Court hereby ORDERS:
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. J. Michael Huston, Esq.
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Docket No.: BAR-05-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 5, 2006
Respondent: J. Michael Huston, Esq.
Bar Number: 002154
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Actions of Attorney who Assumes Inactive Status
ORDER
This matter was presented to the Court pursuant to information filed by the Board of Overseers of the Bar. The Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria eee. Defendant J. Michael Huston (Huston) was represented by David M. Lipman, Esq. The complainant, Wilfred Giroux, advised the Board in advance of his agreement to the proposed resolution of this grievance matter that is adopted by this order.
Stipulations
The parties have stipulated to the following material facts:
Since March 1999, J. Michael Huston has been registered with the Board of Bar Overseers as an inactive attorney under M. Bar Rule 6(e). That status immediately followed a sixty (60) day suspension agreed to by Huston and imposed by this Court's Order dated December 23, 1998. That order provided as follows:
On or about May 6, 2004 Wilfred Giroux filed a complaint with the Board against Huston. Mr. Giroux referenced a May 6, 2004 Oxford Town Selectman's Meeting that he attended in which Huston stated that " ... he was not practicing on a full-time basis." The Board has both the tape and a transcription of that May 6, 2004 meeting. A review of the tape reveals that Huston did indeed say "I'm not practicing on a full-time basis."
Also on May 6, 2004, Huston, while employed as the Oxford Town Manager, assisted a family friend's son at the South Paris District Court to contest the son's speeding ticket. Although Huston did not then enter an appearance, he did engage in discussions with the prosecutor and assisted the young man in obtaining a "filed" charge from the prosecutor. In those discussions, Huston informed the parties that he was an attorney, but that he was not "representing" the son. Regardless of Huston's intent, his presence and statements either created an ambiguity as to his role or left some observers with the impression that he was providing informal legal assistance. The day after his court attendance, the family friend stopped by Huston's office with a bouquet of flowers for him.
During Bar Counsel's investigation, the Board discovered that Huston was not entirely forthcoming about his activities since his 1998 suspension and 1999 inactive status. Huston's lack of candor constitutes violations of Maine Bar Rules 3.1(a) and 3.2(f)(3). For example, in his initial response to the Board's inquiry, Huston asserted the following: "I have turned down previous clients who have called looking for wills .... or even for me to be the clerk of a corporation". However, the Board obtained from Huston's former employers documents that demonstrate he has served as a corporate clerk (for a corporation in which he owns stock) and has maintained legal documents which he had prepared. With the availability of those documents and their accessibility to municipal employees, emerged the appearance of Huston's continued practice of law, even after he registered as inactive.
Since his change to inactive status, Huston has been employed by a variety of municipalities. The Board alleges that Huston improperly engaged in the practice of law during those municipal employments. While Huston denies the Board's allegation, he agrees that some of his actions may have led to other people's belief that he was improperly practicing law.
Agreed Conclusions
The parties agree, and the Court finds, that Huston's conduct violated Maine Bar Rules 3.1(a) (conduct unworthy of an attorney); 3.2(f)(1) (conduct subverting any provision of the Maine Bar Rules); 3.2(f)(3) (conduct involving dishonesty, fraud, deceit or misrepresentation);; and 7.3(i)(1)(F) (action by disbarred or suspended attorneys or attorneys who assume inactive status under rule 6(c)).
Sanction
Having found these violations of the Maine Bar Rules, and agreeing with the Board and the Defendant that they are serious, the Court must address the sanction recommended by the parties. The Court is mindful that Huston was suspended in 1998 and immediately thereafter registered as inactive. However, by since acknowledging at a municipal meeting that "he wasn't practicing full time" as well as his actions while attending a District Court proceeding, Huston has left the impression that he is still practicing law. Huston's conduct, while perhaps not intentionally designed to violate this Court's previous order, has in fact, led him to be in violation of the Court's 1998 Order suspending him from the practice of law. Therefore, noting that the main purpose of attorney discipline is not punishment, but protection of the public, the Court ORDERS the following sanction in this matter as proposed by the parties:
J. Michael Huston is suspended from the practice of law for 6 months with all but ten (10) days of that suspension being suspended for one year subject to the following terms and conditions:
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen T. Hayes, Esq.
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Docket No.: GCF 06-026
Issued by: Grievance Commission
Date: March 28, 2007
Respondent: Stephen T. Hayes, Esq.
Bar Number: 000065
Order: Reprimand
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment
REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION
On March 26, 2007, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, Stephen T. Hayes, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 20, 2006, alleging misconduct in connection with Respondent's representation of a client, in violation of M. Bar R. 3.1(a), 3.2(f), and 3.6(a).
At the hearing, Assistant Bar Counsel Aria eee represented the Board, and the Respondent was represented by James M. Bowie, Esq. The Board's exhibits marked Board Exh. 1-13 and Board Exh. 15-17, and the Respondent's exhibits marked R-1 through R-4, were admitted without objection. The Panel heard testimony from the Respondent; from his former clients, Mona K. Smith and John Coelho; and from Martin C. Womer, Esq. The material facts were not substantially disputed. Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
FINDINGS
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules.
Ms. Smith and Mr. Coelho engaged Respondent in November 2005 in connection with an estate planning matter involving the disposition of jointly owned real estate in Litchfield, Maine. Ms. Smith and Mr. Coelho were unmarried cohabitants who were registered domestic partners. Ms. Smith was undergoing treatment for cancer. Although the parties' recollections differed as to how fully Respondent was advised of the status of Ms. Smith's illness and treatment, the Panel does not find this discrepancy material to its conclusions.
Following an initial consultation with Ms. Smith and Mr. Coelho on November 1, 2005, Respondent prepared a draft trust document for them, and forwarded it to them on or about December 16. They responded via an e-mail message posing some questions and additional considerations, which Respondent received on December 19.
Respondent did not again communicate with Ms. Smith and Mr. Coelho until January 30, 2006. Although he did not so advise them at the time, the additional considerations raised in their e-mail message created substantial legal issues regarding their ability to protect the assets from creditors. Moreover, this matter arose during a time when the law governing such issues was in a considerable state of flux, due to recent and pending state and federal legislation and rule changes. Although Respondent was actively researching the effect of these changes upon the clients' matter, he testified that it is his practice not to send "empty" communications to clients until such time as he has substantive legal conclusions to impart. Respondent further testified, by way of explanation rather than excuse, that during the time period in question, he had a busy trial schedule and also suffered a spell of bronchitis that temporarily impeded his ability to maintain a full workload.
Mr. Coelho left a voicemail message with Respondent on January 9, and Ms. Smith and Mr. Coelho sent an e-mail message to Respondent on January 11, both of which sought information about the status of their matter. The e-mail message of January 11, in particular, should have put Respondent clearly on notice of his clients' concerns:
If this is the case, please be good enough to so advise by return note so that we may seek the services of another attorney.
Respondent did not respond to this e-mail message. On January 26, Ms.Smith and Mr. Coelho filed a complaint with the Board of Overseers of the Bar; however, Respondent did not receive notice of their complaint until February 2. In the meantime, he concluded his research (including consultation with Mr. Womer, an elder law attorney with expertise in the specific legal issues affecting this matter), and forwarded two separate e-mail messages to his clients on January 30 and February 1, conveying his conclusions. He sent a bill for his services on February 2. On Saturday, February 4, Ms. Smith and Mr. Coelho sent him an e-mail message terminating his representation of them, which he received on Monday, February 6.
CONCLUSIONS AND SANCTIONS
It is clear from the evidence presented in this matter that Respondent did not neglect his clients' legal matter in violation of M. Bar R. 3.6(a)(3), nor engage in any dishonesty, fraud, deceit or misrepresentation in violation of M. Bar R. 3.2(f). The Panel concludes, however, that Respondent violated M. Bar R. 3.6(a), in that Respondent failed to "take reasonable measures to keep the client informed on the status of the client's affairs."
Reasonableness is determined by what a prudent lawyer would have done under like circumstances. Respondent was clearly on notice of his clients' anxiety about the status of the pending matter and their wish for a status report. The responsibility under Rule 3.6(a) to take reasonable measures to keep the client informed rests upon the attorney, and under the circumstances of this case, Respondent did not act as a reasonably prudent attorney should have to communicate with his clients. In this case, notwithstanding Respondent's expressed antipathy to "empty" client communications, the Panel concludes that a simple status message via telephone or e-mail would not have been an "empty" communication; rather, it would have sufficed to meet the Respondent's professional obligation to take reasonable measures to keep his clients informed.
With regard to an appropriate sanction, the Panel has seriously considered, but ultimately rejects, a dismissal with a warning pursuant to M. Bar R. 7.1(e)(3)(B). While Respondent's misconduct was minor and was not due to any neglect nor bad faith and Respondent's misconduct did not cause substantial injury to the clients, the public, the legal system, or the profession, the Panel is unable to conclude that there is little likelihood of a repetition by the attorney, for two reasons. First, the Panel's review of Respondent's past disciplinary history suggests that Respondent has experienced previous difficulties with client communication. Second, the Panel is concerned by Respondent's evidently sincere testimony regarding his aversion to "empty" client communications, and notes that to the extent such communications are necessary to keep clients reasonably informed as to the status of pending matters, or to respond to a client's inquiries as to the status of a pending matter, they are not merely "empty" communications, but rather an affirmative obligation of the attorney under M. Bar R. 3.6(a).
Accordingly, the Panel hereby determines that the appropriate sanction is a reprimand pursuant to M. Bar R. 7.1(e)(3)(C), and Respondent is accordingly so reprimanded.
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
David Nyberg, Ph.D.
William E. Baghdoyan, Esq.
Board of Overseers of the Bar v. Warren C. Shay, Esq.
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Docket No.: GCF 05-098
Issued by: Grievance Commission
Date: Decmeber 18, 2005
Respondent: Warren C. Shay, Esq.
Bar Number: 000190
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conflict of Interest; Simultaneous Representation
REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION
On November 14, 2005, due notice having been properly and seasonably given, Panel C of the Grievance Con1n1ission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds for the issuance of a reprin1and or whether probable cause existed for the filing of an information concerning alleged misconduct by Respondent, Warren C. Shay, Esquire (Shay) as described in the Petition dated September 6, 2005 filed by the Board of Overseers of the Bar (the Board).
Assistant Bar Counsel, Aria eee, Esquire, represented the Board, and S. Peter Mills, Esquire, represented Shay, both counsel and Shay being present at the hearing. The complainant Thomas N. Dube was also in attendance. The Panel incorporates the following stipulations of fact which the parties have entered into which the Panel so finds:
Considering the above facts stipulated to by the parties, together with the testimony and evidence presented, the Panel finds that Attorney Shay had a conflict of interest as defined by Maine Bar Rule 3.4(b)(1) when he entered into the simultaneous representation of Dube as one of the buyers, and Lamont and Davis as the sellers relative to the 27 acre real estate transaction in Monson, Maine on October 9, 2003. Although such simultaneous representation is possible with informed consent, Attorney Shay violated Me. Bar R. 3.4(c)(2)(ii) when he failed to adequately consult with Dube prior to commencement of the representation. Without that consultation, it can not be said that Dube had the benefit of making adequately informed legal decisions pursuant to Me. Bar R. 3.4(c)(2)(ii) or that his consent to the simultaneous representation was informed. In addition, Attorney Shay violated Me. Bar R. 3.4(c)(2)(iii) by failing to terminate his representation of Mr. Lamont once it became dear that Lamont's interests came into direct conflict with the interests of Mr. Dube.
The panel also concludes that Shay violated the spirit of Me. Bar R. 3.4(f)(2)(v) when he drafted and presented Dube with a release which attempted to settle any potential claims Dube may have had against Attorney Shay. Although Dube refused to execute such a release, the panel is troubled by Shay's attempt at obtaining such a release, without advising Dube to obtain independent legal counsel. While not technically a violation of Me. Bar R. 3.4(f)(2)(v), such conduct is unworthy of an attorney pursuant to Me. Bar R. 3.1(a).
In view of the foregoing misconduct, the Panel concludes that the appropriate disposition of this complaint is that Shay be, and he hereby is, reprimanded for violating Me. Bar R. 3.4(b)(1), 3.4(c)(2)(ii), 3.4(c)(2)(iii) and 3.1(a) as established in the findings of fact discussed in this report. The panel has taken into consideration Shay's prior disciplinary record involving, most recently, a dismissal with a warning dated August 21, 2003 for violating the prohibition against simultaneous representation of clients involved in a matter subject to litigation.
For the Grievance Commission
David S. Abramson, Esq., Chair
Valerie Stanfill, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Stephen W. Devine
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Docket No.: BAR-92-14
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 11, 2002
Respondent: Stephen W. Devine
Bar Number: 001824
Order: Amended Order
Disposition/Conduct: N/A
AMENDED ORDER OF REINSTATEMENT
By Order of April 14, 1997, Stephen W. Devine's Petition for Reinstatement was conditionally approved by the Court (Glassman, J.). That Order provided that prior to resumption of practice, several conditions related to proper supervision of Mr. Devine's practice were to be implemented by him in order to protect the public from harm. Mr. Devine was also required to provide the Board with proof that he had secured professional liability insurance in an amount satisfactory to the Board.
None of the required conditions have been met by Mr. Devine, and he has not made any attempt to return to the practice of law.
Accordingly, given the nearly five-year delay that has occurred since that order of conditional reinstatement was issued, by stipulation of the parties;
it is hereby ORDERED that prior to commencing the practice of law in Maine, Stephen W. Devine shall file a renewed Petition for Reinstatement.
For the Court
Hon. Donald G. Alexander, Jr., Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Joseph F. Holman, Esq.
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Docket No.: BAR-02-02
Issued by: Single Justice, Maine Supreme Judicial Court
Date: April 22, 2002
Respondent: Joseph F. Holman, Esq.
Bar Number: 0001767
Order: Resignation
Disposition/Conduct:
DECISION AND ORDER
Attorney Joseph F. Holman, who has been a member of the Maine Bar since 1951, has tendered his resignation from the Bar. Because he is the subject of an investigation under the Maine Bar Rules, the Court must determine whether to accept or reject his resignation. M. Bar R. 7.3(g)(2). The Board of Overseers of the Bar, in a split vote, has recommended that his resignation be rejected.
Holman's letter of resignation is accompanied with the required affidavit in which he admits the truth of the misconduct allegations. See M. Bar R. 7.3(g)(1)(C). At a hearing held on April 10, 2002, Holman addressed the Court and acknowledged his misconduct. He apologized for the misconduct, saying that he is deeply ashamed, and he represented that, if his resignation is accepted, he will never seek reinstatement. Holman is seventy-six years old. The Court has reviewed the medical records that he submitted which indicate that he is suffering from cancer and has undergone recent surgeries. In addition, he is being treated with antidepressant medication.
Holman's misconduct arose from his representation of an elderly friend. Holman drafted the friend's will and trust in which he was named a beneficiary and co-trustee, and Holman purchased property from the trust. So far as is known, no one suffered a loss as the result of his misconduct. The property was purchased at its appraised value, and the sale was approved by the other co-trustee and remaindermen.
This is not the first time that Holman has been the subject of an investigation for misconduct as an attorney. In 1976 he was suspended from the practice of law for one and one-half years as the result of misrepresentations he made to the Bankruptcy Court regarding legal fees.
The Board's position is that the serious nature of Holman's misconduct, in addition to his previous suspension, means that he should be subject to public disciplinary proceedings instead of being allowed to resign privately. The Board is concerned that the private resignation will have no deterrent effect on the rest of the Bar and will not adequately signal the public that such misconduct has serious repercussions.
There is no question that Holman's misconduct was extremely serious. Furthermore, the fact that he was previously suspended from practice, albeit twenty-five years ago, indicates that the public should be protected from his practice of law. However, his resignation and his representation that he will never seek reinstatement will suffice to protect the public because he will never again practice law in Maine.
As to the lack of deterrent effect on other attorneys by Holman's resignation as opposed to public disciplinary proceedings, the public nature of this order should suffice. Although Holman's affidavit is impounded pursuant to M. Bar R. 7.3(g)(3) this order is a matter of public record. Thus, the number of attorneys who will learn about Holman's resignation, made while he was under investigation for misconduct, is likely to be as large as the number of attorneys who would learn about a suspension or disbarment proceeding and will have as much deterrent effect as a suspension or disbarment. Attorneys are well aware that in order to accept a recommendation the Court must have the resigning attorney's admission of misconduct.
In light of the totality of factors in this case, the Court is of the opinion that the resignation should be accepted. Holman's age and health, his remorse, his representation that he will not seek reinstatement to the Bar, and the fact that no one suffered a loss resulting from his misconduct are all factors leading to this decision to accept his resignation.
The court hereby accepts the resignation of John F. Holman from the Maine Bar. Pursuant to M. Bar R. 7.3(g)(3) his affidavit will remain impounded. If Holman should renege on his promise that he will not seek reinstatement, the affidavit will be made public. This order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jeffrey J. Fairbanks
Docket No.: BAR-01-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 25, 2002
Respondent: Jeffrey J. Fairbanks
Bar Number: 008150
Order: Disbarment
Disposition/Conduct: Conduct Unworthy of an Attorney; Admission, Disclosure and Misconduct - Other Misconduct; Conduct During Representation - Standards of Care and Judgment; Registration Requirements
ORDER OF DISBARMENT
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1)(2) by an information filed by the Board of Overseers of the Bar against the Defendant, Jeffrey J. Fairbanks. Fairbanks has been served with a copy of the information and summons. Although he has filed a letter of resignation, Fairbanks has failed to file an answer to the information or to the Board's Motion for Default. The Board opposes his resignation. Fairbanks is hereby defaulted.
Fairbanks is a Maine attorney who practiced in Maine at the time of the Board's allegations and was subject to the Maine Bar Rules. The Board's information charges, inter alia, that Fairbanks violated M. Bar R. 3.1(a) (Conduct Unworthy of an Attorney) 3.2(f)(1)(2)(3)(4) (Admission, Disclosure and Misconduct - Other Misconduct); 3.5(a)(1)(2) (Withdrawal from Employment), 3.6(a)(2)(3) (Conduct During Representation - Standards of Care and Judgment); 3.7(e)(1)(i) (Conduct During Representation); 6(a)(1) (Registration; Required Filings); and 6(c)(1)(2) (Notification of Discontinuance of the Practice of Law and Withdrawal from Maine Practice). Included in his misconduct was Fairbanks' failure to keep a divorce client informed as to the status of his matter and not confirming to that client whether his divorce was actually final or providing a copy of the divorce decree to that client. On another count within the Board's disciplinary information, Fairbanks failed to file the proper documents to seek withdrawal from a guardianship matter before the York County Probate Court. He had assured the court that he would file a Motion for Leave to Withdraw but never filed it, also failed properly seek continuance and then failed to appear for a pretrial conference leaving his client without representation.
Because Fairbanks has not filed an answer to the information, the Court takes the Board's allegations as being admitted by him. Therefore, the Court finds that Fairbanks has violated M. Bar R. 3.1(a); 3.2(f)(1)(2)(3)(4); 3.5(a)(1)(2); 3.6(a)(2)(3); 3.7(e)(1)(i); 6(a)(1)(2); and (6)(c)(1)(2).
Accordingly, it is hereby ORDERED that the Executive Clerk of the Supreme Judicial Court shall enter the Defendant's default pursuant to M. R. Civ. P. 55(a). It is further ORDERED that Jeffrey J. Fairbanks be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. Jeffrey J. Fairbanks shall comply with the notification and reporting requirements of M. Bar R. 7.3(i) within 30 days of this date.
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jennifer R. Raymond, Esq.
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Docket No.: GCF-03-191
Issued by: Grievance Commission
Date: December 2, 2003
Respondent: Jennifer R. Raymond, Esq.
Bar Number: 008540
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct During Representation: Standards of Care and Judgment; Preserving Identity of Funds and Property
REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION
On December 1, 2003, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent, Jennifer R. Raymond, Esq. (Raymond), as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on October 9, 2003. Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and Raymond was pro se, both being present at the hearing.
The complainants, Lloyd and Melanie Gerow (the Gerows) did not attend the hearing. They had, however, been notified and understood that the parties had stipulated to the following facts and agreed upon disposition of this matter by a reprimand, which the Panel now so finds and adopts:
Considering the above facts stipulated to by the parties, the Panel finds that Raymond was not diligent in handling the real estate sign dispute for the Gerows. Her failure to do the work for which she was hired, her misguided efforts to conceal her neglect from her clients and her failure to timely turn over the file to successor counsel were clearly wrong and improper, which Raymond now so acknowledges.
In view of the foregoing misconduct, the Panel concludes, as Raymond admitted during the hearing, that the appropriate disposition of this complaint is that Raymond be, and she hereby is, reprimanded for her violations of the Maine Bar Rules as established in the findings of fact discussed in this report. In reaching this conclusion, the Panel recognizes that Raymond has no disciplinary record.
For the Grievance Commission
Stephen G. Morrell, Esq., Chair
Charles W. Smith, Jr., Esq.
Harriet R. Tobin
Board of Overseers of the Bar v. Richard W. Gerrity, Esq.
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Docket No.: GCF-03-208
Issued by: Grievance Commission
Date: December 2, 2003
Respondent: Richard W. Gerrity, Esq.
Bar Number: 008805
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Directly or Indirectly Violate, Circumvent, or Subvert any Provision of the Maine Bar Rules; Registration Requirements
REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION
On December 1, 2003, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or whether probable cause existed to file an information concerning alleged misconduct by the Respondent, Richard W. Gerrity, Esq., (Gerrity), as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on October 8, 2003. Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and David Q. Whittier, Esq., represented Gerrity, both being present at the hearing.
The complainant did not attend the hearing. She had, however, been notified and understood that the parties had stipulated to the following facts and agreed upon disposition of this matter by a reprimand, which the Panel now so finds and adopts:
The Panel concludes that the appropriate disposition of this case is a reprimand. Although Gerrity?s writing the Department might have been well intentioned and concerned what he perceived was the Department?s alleged inadequate treatment of its inmates, his doing so by holding himself out to the Department as an attorney on active status clearly was wrong, and he now so acknowledges that fact. The Panel concludes, therefore, that Gerrity be and he hereby is reprimanded for his misconduct.
For the Grievance Commission
Stephen G. Morrell, Esq., Chair
Charles W. Smith, Jr., Esq.
Harriet R. Tobin
Footnotes
1Issued by the Professional Ethics Commission on May 6, 1987.
Board of Overseers of the Bar v. Albert Ira Gould
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Docket No.: BAR-03-05
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 27, 2003
Respondent: Albert Ira Gould
Bar Number: 008090
Order: Suspension Reciprocal Discipline
Disposition/Conduct:
M. Bar R. 7.3(h)(3)
Having received a certified copy of the Order of the Supreme Judicial Court of the Commonwealth of Massachusetts dated December 17, 1998, indefinitely suspending the above-named Albert Ira Gould from the practice of law in the Commonwealth of Massachusetts, and having ordered, pursuant to M. Bar R. 7.3(h)(3)(1), that Albert Ira Gould shall, within 30 days from the service of this Order, inform this Court of any claim that the imposition of identical discipline upon him in this State would be unwarranted and the reasons therefore, and Gould having failed to ever answer, respond or otherwise reply to the Board of Overseers of the Bar's Petition for Reciprocal Discipline after having been personally served with a copy of it on September 16, 2003, this Court hereby ORDERS:
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles G. Williams III
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Docket No.: CUM-04-228
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 20, 2005
Respondent: Charles G. Williams III
Bar Number: 008827
Order: Order and Decision
Disposition/Conduct:
Order
Upon motion of appellee to dismiss the appeal,
The above named appeal is hereby DISMISSED for lack of prosecution. Appellant has neither filed his brief nor responded to the motion to dismiss within the time periods established by the Maine Rules of Appellate Procedure and the several procedural orders entered during the courts of this matter.
For the Court
Hon. Leigh I. Saufley, Chief Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Julio V. DeSanctis, Esq.
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Docket No.: BAR-02-04
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 21, 2002
Respondent: Julio V. DeSanctis, Esq.
Bar Number: 001751
Order: Reprimand
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Excessive Fee; Standards of Care and Judgment; Refusal of Complainant to Proceed/Compromise/Restitution
ORDER
This matter came before the Court for a telephonic case management conference on October 18, 2002. The Board of Overseers of the Bar (the Board) was represented by Bar Counsel J. Scott Davis, and Mr. DeSanctis was represented by his attorney, Richard W. Hall, Esq. Mr. Hall stated that Mr. DeSanctis had been consulted, actively involved and agreed with the parties' proposed sanction. The Court was informed by Bar Counsel that the complainant, Barry McSorley, had also been told of and totally agreed with the parties' stipulation and proposed sanction.
Pursuant to M. Bar R. 7.1(e), disciplinary proceedings had occurred before Grievance Commission Panel A on November 6, 2001. As a result of that hearing, that panel found probable cause for these court proceedings to be initiated.
The parties have stipulated to the following material facts:
Mr. DeSanctis was admitted to practice in Maine in 1974 and, until recently, has been practicing law in the Bangor and Orrington area since that time.
On September 6, 2000, Barry McSorley of Sebec consulted Mr. DeSanctis concerning his claim that a truck he had recently purchased was defective and had not been properly repaired by the dealer/seller, Gerry's Used Cars of Corinna, Maine.
Mr. DeSanctis immediately called Gerry's and told them to refund the purchase money or a lawsuit would be filed "on Monday".
Mr. McSorley immediately paid a $200.00 cash retainer fee for Mr. DeSanctis to initiate that lawsuit.
The seller wrote Mr. McSorley a response on September 13, 2000 indicating he would not comply with Mr. DeSanctis' refund demand.
That suit was not ever filed by Mr. DeSanctis and he otherwise failed to move forward on Mr. McSorley's case or respond to his telephone calls and letters requesting case status information.
Due to no suit being filed or other action being taken by Mr. DeSanctis - at least to the knowledge of Mr. McSorley - on his case, Mr. McSorley paid $631.00 to have the truck repaired elsewhere.
Mr. McSorley complained to the Board on November 11, 2000 concerning Mr. DeSanctis' inattention and his $200.00 unearned fee. In the course of Bar Counsel's investigation and contact with Mr. DeSanctis, he failed to take adequate steps to ensure that timely responses were properly communicated to Bar Counsel. He also settled the related fee dispute by accepting Mr. McSorley's suggested settlement request for a refund of the $200.00 attorney fee. Mr. DeSanctis' settlement letter caused Mr. McSorley to incorrectly believe that their monetary settlement also ended his grievance complaint to the Board.
The parties have stipulated and the Court finds that Mr. DeSanctis' conduct was in violation of M. Bar R. 3.2(f)(4) (Conduct Prejudicial to the Administration of Justice); 3.3(a) (Excessive Fee); 3.6(a) (Standards of Care and Judgment)"; and 7.3(b) (Refusal of Complainant to Proceed; Compromise; Restitution).
Mr. DeSanctis has been previously reprimanded for professional misconduct, being publicly reprimanded by the Grievance Commission in 1990 (affirmed by the Court), 1991 and 1995. That disciplinary history could very well support or require a more serious sanction in this instance.
However, given Mr. DeSanctis' recent and continuing suffering with cancer and his having now - for reasons already planned and unrelated to that illness or this grievance matter - moved to New Jersey, and his plans to not practice law in Maine, Bar Counsel Davis proposes and the Court hereby agrees that Julio V. DeSanctis is HEREBY reprimanded for his misconduct in this matter.
For the Court
Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. John N. Whalen, Esq.
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Docket No.: GCF-00-143
Issued by: Grievance Commission
Date: November 8, 2001
Respondent: John N. Whalen, Esq.
Bar Number: 000827
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation; Standards of Care and Judgment: Reasonable Care and Skill
REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION
On November 8, 2001 pursuant to due notice, Panel C1 of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information concerning alleged misconduct by Respondent, John M. Whalen, Esq., (Whalen), as described in the Petition dated July 24, 2001 filed by the Board of Overseers of the Bar (Board).
Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and Jennifer Nichols Ferguson, Esq., represented Whalen, both counsel being present at the hearing. The complainants, Jeffrey S. and Danielle Levasseur as well as Stacy Thornton, having been provided notice and an opportunity to be present, attended the hearing, and made statements to the Panel in opposition to the proposed report.2
Considering the above facts stipulated to by the parties, the Panel finds that Whalen?s acknowledging the three waivers without the affiants personally ever having appeared before him to acknowledge that they had signed the waivers as their free act and deed and later presenting them to the Probate Court violated the Maine Bar Rules cited above. Although the Maine Probate Code and Rules technically did not require the waivers to have acknowledgements and while Whalen ?acknowledged? the waivers without any malicious intent, executing the acknowledgements as he did was wrong and unethical.
The Panel understands that the complainants hold Whalen personally responsible for Hector?s abuse of his conservatorship powers and his depletion of Susan?s estate. Hector?s misconduct, however, occurred only after he discharged Whalen, and the Petitioner and the Respondent agree that no credible evidence exists, which establishes that Whalen improperly conspired with Hector to do anything unlawful.
In view of the foregoing, the Panel concludes, as Whalen so acknowledged at the hearing, that the appropriate disposition of this matter is that Whalen be, and he hereby is, reprimanded for violating Maine Bar Rules 3.1(a); 3.2(f)(3) and 3.6(a) as established in the findings of fact discussed in this report. The misconduct is not minor, and Whalen has a prior disciplinary record for misconduct different from that for which the Panel reprimands him today.
For the Grievance Commission
Alan G. Stone, Chair
Elizabeth A. McCullum, Esq.
Carol Rea
Footnotes 1Elizabeth A. McCullum, Esq., substituted for Barbara L. Raimondi, Esq. 1 By Letters dated October 26 and November 2, 2001 Mr. Welsh disclosed the proposed disposition of this matter to the complainants.
Board of Overseers of the Bar v. Guy P. Seaberg
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Docket No.: BAR-02-1
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 22, 2002
Respondent: Guy P. Seaberg
Bar Number: 001774
Order: Disbarment
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Admission, Disclosure and Misconduct - Other Misconduct; Withdrawal from Employment; Registration Requirements
ORDER OF DISBARMENT
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1)(2) by an information filed by the Board of Overseers of the Bar against the Defendant, Guy P. Seaberg. Seaberg has been served with a copy of the information and summons, but he has failed to file an answer or any responsive pleadings to it or to a Motion for Default. He is therefore hereby defaulted.
Seaberg is a former Maine attorney who practiced in Maine at the time of the Board's allegations and was subject to the Maine Bar Rules. The Board's information charges, inter alia, that Seaberg violated M. Bar R 2(c) (Grounds for Discipline); 3.2(f)(1)(2)(4) (Admission, Disclosure and Misconduct - Other Misconduct); 3.5(Withdrawal from Employment); 3.6(a)(2)(3) (Conduct During Representation - Standards of Care and Judgment) and 6(a) (Registration; Required Filings). Seaberg's egregious misconduct is set forth within the 1994 civil complaint entitled Lori D'Amico v. Guy P. Seaberg filed in the Androscoggin County Superior Court. Seaberg failed to ever submit any substantive response concerning his proven misconduct and gross mishandling of the underlying matter of Lori D'Amico v. John W Childs, 634 A.2d 1271 (Me. 1993).
Because Seaberg has not filed an answer or otherwise responded to the information, the Court takes the Board's allegations as being admitted by him. Therefore, the Court finds that Seaberg has violated M. Bar R. 2(c); 3.2(f)(1)(3)(4); 3.5(a)(1)(2); 3.6(a)(2)(3) and 6(a)(1).
Accordingly, It is hereby ORDERED that the Executive Clerk of the Supreme Judicial Court of Maine enter the Defendant's default pursuant to M. R. Civ. P. 55(a). It is further ORDERED that Guy P. Seaberg be, and he hereby is disbarred from the practice of law in the State of Maine effective the date of this order. Guy P. Seaberg shall comply with the notification and reporting requirements Of M. Bar R. 7.3(i) within 30 days of this date.
For the Court
Hon. Paul L. Rudman, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. David N. Fisher, Jr., Esq.
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Docket No.: GCF-02-60
Issued by: Grievance Commission
Date: August 7, 2003
Respondent: David N. Fisher, Jr., Esq.
Bar Number: 000750
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standands of Care and Judgment; Neglect
REPORT OF FINDINGS OF PANEL C
On August 7, 2003, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, David N. Fisher, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on April l8, 2003.
Assistant Bar Counsel, Nora Sosnoff, represented the Board and Attorney Peter J. DeTroy represented the Respondent, Attorney Fisher, at the hearing. The complainant, Alan S. Carter, was present.
The Panel hereby makes the following findings pursuant to the stipulation of the parties:
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Fisher.
For the Grievance Commission
Barbara L. Raimondi, Esq., Acting Chair
David S. Abramson, Esq.
Nancy Butland
Board of Overseers of the Bar v. James J. MacAdam, Esq.
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Docket No.: GCF-1-178; GCF-01-181, GCF-01-182
Issued by: Grievance Commission
Date: December 1, 2003
Respondent: James J. MacAdam, Esq.
Bar Number: 002484
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Responsibilities Regarding Non-Lawyer Assistants
Report of Findings of Panel B of the Grievance Commission
On December 1, 2003, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, James J. MacAdam, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 9, 2003.
Present at the hearing were Assistant Bar Counsel, Geoffrey S. Welsh, representing the Board; and Attorney James J. MacAdam, represented by Attorney Peter J. DeTroy. The complainants were duly notified of the hearing in accordance with M. Bar R. 7.1(e)(2)(A) and were provided with the parties? proposed Report of Findings more than 30 days prior to the hearing. The Panel hereby makes the following findings pursuant to the stipulation of the parties:
It can be beneficial to both attorneys and their clients for non-lawyer legal assistants to perform appropriate tasks during a lawyer?s representation of a client. However, no attorney should delegate professional responsibilities to the extent that Attorney MacAdam did in the cases described above. When an attorney delegates appropriate tasks to a non-lawyer assistant, there must be corresponding oversight and supervision by the attorney of the non-lawyer assistant. However, in the cases described above, Attorney MacAdam failed to perform the appropriate level of oversight and supervision. The Panel acknowledges that when Attorney MacAdam became alert to his failures in oversight and supervision, and the probable harm caused to clients, he initiated a meeting with Bar Counsel in which he disclosed the circumstances and sought guidance.
Attorney MacAdam engaged in professional misconduct in violation of M. Bar R. 3.13(c)(1), (2) by failing to make reasonable efforts to ensure that the conduct of his legal assistant was compatible with Attorney MacAdam?s professional obligations under the Maine Bar Rules. Attorney MacAdam?s violations of M. Bar R. 3.13(c)(1),(2) constitutes conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney James J. MacAdam.
For the Grievance Commission
David R. Weiss, Esq., Acting Chair
John H. Rich, III, Esq.
Caroline S. Macdonald
Board of Overseers of the Bar v. Philip L. Ingeneri, Esq.
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Docket No.: BAR-03-6
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 17, 2004
Respondent: Philip L. Ingeneri, Esq.
Bar Number: 001443
Order: Suspended Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Inadequate Preparation of a Client's Matter; Neglect of a Client's Matter
ORDER
Defendant Philip L. Ingeneri, Esq. of Bangor is an attorney admitted to practice law in Maine and subject to the Maine Bar Rules.
In early 1999, Richard Parks Anderson had renovation work done at his furniture business in Ellsworth, known as the "Richard Parks Furniture Store." For that purpose he entered into a fixed-price contract with John Wilbur, d/b/a John Wilbur General Contractor. A dispute arose between Anderson and Wilbur. From Anderson's perspective, Wilbur failed to complete the work and had done an inadequate job on the work he had completed.
Wilbur filed a civil complaint against Anderson in the Superior Court (Hancock County) alleging that Anderson owed him money under their construction contract. On Anderson's behalf, Ingeneri filed an answer, a motion to dismiss Wilbur's complaint, and a counterclaim seeking damages for the inadequate and incomplete work.
On or about December 21, 2000, Ingeneri contacted Anderson requesting information and documents. Anderson promptly provided those materials to Ingeneri. Anderson was never told by Ingeneri that any further papers or answers were required.
Commencing in January 2001, Anderson began to telephone Ingeneri for case status updates, and did so at least a dozen times over the next several months. Ingeneri did not respond to those inquiries.
On or about June 7, 2001, Wilbur's filed a motion for sanctions for failure to supply discovery. Ingeneri failed to inform Anderson that this motion for sanctions had been filed, and Ingeneri failed to provide discovery to Wilbur. An order to compel discovery was entered against Anderson. Anderson was not notified.
Subsequently, Ingeneri allowed an order of default to be entered against Anderson. Ingeneri did not inform Anderson that a request for default judgment had been filed, and failed to file any objection to the default being entered.
Ingeneri recognized his own misconduct in his letter to opposing counsel of January 10, 2002, and in his related motion to continue the hearing on damages of that same date. In the January letter, Ingeneri stated that"[t]he failure to provide the [requested] discovery ... was entirely attributed to [Ingeneri's] non-action and not to that of Mr. Anderson." Ingeneri did not send copies of the letter or the motion to Anderson. Anderson continued to be uninformed as to the true status of his case. The damage hearing resulted in a February 25, 2002 judgment being entered against Anderson in the amount of $64,015.36.
Anderson was never informed by Ingeneri of any court judgment being entered against him, and learned of that judgment on or about June 11, 2002, when he was served with a disclosure subpoena in connection with Wilbur v. Anderson. Shortly after being served with the subpoena, Anderson went to Ingeneri's office to obtain his file materials. At that time Ingeneri apologized for his misconduct, had no excuse, acknowledged that it was his fault, and stated he "would not walk away" from it.
Anderson's subsequent attempts to have the judgment vacated were unsuccessful, and he was forced to settle with Wilbur, and to pay Wilbur $50,000. Anderson had to sell his wife's real estate to pay the settlement and he lost his retirement savings and his children's college fund savings.
Anderson sued Ingeneri for malpractice in the Superior Court (Penobscot County) and a default judgment in the amount of $50,000 was subsequently entered.
Anderson complained to the Board of Overseers of the Bar concerning Ingeneri's misconduct. By Bar Counsel's letter of November 13, 2002, Ingeneri was notified and provided with a copy of Anderson's grievance complaint, and directed to respond to Bar Counsel by November 27, 2002. Ingeneri failed to respond despite Bar Counsel's second notice letter of December 2, 2002 sent by certified mail and received on December 4, 2002, by Ingeneri's agent.
Pursuant to M. Bar R. 7.1(d)(e), a Grievance Commission panel disciplinary hearing was held on April 3, 2003. The panel issued its report on the same date, finding probable cause for the suspension or disbarment of Ingeneri, and pursuant to M. Bar R. 7.2(b), directed Bar Counsel to commence this attorney disciplinary action with the Court.
At that April 3 hearing, Ingeneri testified under oath and made the following admissions and/or statements about his misconduct:
Subsequent to the entry of default being entered against him, Ingeneri filed for bankruptcy protection resulting in an automatic stay, that stay remains in place. As a result of that stay, the Superior Court's default judgment in favor of Anderson in the amount of $50,000 was set aside. Anderson has filed a claim in the Bankruptcy Court seeking to collect the $50,000.
The Court finds, and Ingeneri does not challenge the findings, that Ingeneri has violated Bar Rule 2(c), failure to respond to Bar Counsel; Bar Rule 3.1(a), conduct unworthy of an attorney; Bar Rule 3.2(f)(3), conduct involving dishonesty, fraud, deceit, or misrepresentation; Bar Rule 3.2(f)(4), conduct that is prejudicial to the administration of justice; Bar Rule 3.6(a)(2), inadequate preparation of a client's matter; and Bar Rule 3.6(a)(3), neglect of a client's matter.
Attorney Ingeneri has the following significant prior disciplinary record history on file with the Board of Overseers of the Bar:
The Court finds that Ingeneri's misconduct involving Anderson was serious and resulted in significant injury and harm to the client, which has yet to be addressed or rectified by Ingeneri.
There is also a marked similarity between the misconduct which resulted in Ingeneri's suspension in 1981 and the misconduct in the present matter involving Anderson.
The seriousness of Ingeneri's violations of the Bar Rules require that he be suspended from the practice of law. Ingeneri argues that any imposed suspension of his right to practice be suspended, conditioned upon his compliance with certain conditions. Bar Counsel agrees that those conditions should be imposed, but because of Ingeneri s prior disciplinary history and the serious harm suffered by Anderson, urges the Court to impose a suspension from the practice of law for a period of at least six months. Anderson testified, and urged that a serious sanction be imposed based on the harm Ingeneri caused to him.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties.
Ingeneri, in his representation of Anderson, has demonstrated such an inability to properly discharge his professional duties. He has recognized his problem, identified by Fred A. Bloom, M.D., as major depression, an illness that can, as it did in this case, impair his ability to carry out his responsibilities as a practicing attorney. The illness is treatable and Ingeneri is taking steps to address his problem, and is treating with Dr. Bloom. It appears that with sufficient conditions involving monitoring, Ingeneri will be able to meet his professional responsibilities, and resume his practice.
Upon consideration of all the facts and evidence before this Court, the Court, imposes the following sanction: Ingeneri is suspended from the practice of law in the State of Maine for a period of six months, commencing July 1, 2004. All but three months of said suspension are hereby suspended, subject to the following conditions:
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stanley E. Sproul, Esquire
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Docket No.: BAR-05-01
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 1, 2005
Respondent: Stanley E. Sproul, Esquire
Bar Number: 001810
Order: Resignation
Disposition/Conduct:
ORDER
This matter is before the Court to consider Attorney Stanley E. Sproul's voluntary resignation dated April 8, 2005, that has been tendered pursuant to M. Bar R. 7.3(g). Attorney Sproul's letter of resignation is supported by his Affidavit dated April 11, 2005. On April 13, 2005 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Sproul's resignation from the Maine bar.
Therefore, it is hereby ORDERED
Pursuant to M. Bar R. 7.3(g)(3), Stanley E. Sproul's resignation from the Maine bar is accepted. Thirty (30) days from the date of this Order his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Mr. Sproul shall comply with the notification reporting requirenments of M. Bar R. 7.3(i)(1) within thirty (30) days of this date.
As required by M. Bar R. 7.3(g)(3), Stanley Sproul's supporting Affidavit dated April 11, 2005 is hereby impounded, and shall not be available for inspection unless otherwise ordered by the Court. Should Stanley Sproul seek reinstatement to the Maine bar, that Affidavit may then be made public without further Order of the Court
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Hon. Donald G. Alexander, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Lunsford Dole Philips
Docket No.: BAR-04-06
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 27, 2004
Respondent: Lunsford Dole Philips
Bar Number: 003230
Order: Reciprocal Discipline
Disposition/Conduct:
ORDER Me. Bar rule 7.3(h)(3)
Having received a certified copy of the Order of the Supreme Court of the State of Hawaii dated April 15, 2004 suspending the above named Lunsford Dole Phillips from the practice of law in the State of Hawaii for a year and a day, and having ordered, pursuant to M. Bar R. 7.3(h)(3)(1), that Lunsford Dole Phillips shall, within 30 days from the service of this Order, inform this Court of any claim that the imposition of identical discipline upon him in this State would be unwarranted and the reasons therefore, and after Phillips having indicated in correspondence with Bar Counsel and the Court dated April 29 and May 19, 2004 that he did not oppose the Board of Overseers of the Bar's Petition for Reciprocal Discipline, a copy of it having been mailed to him by regular first class, certified mail on May 14, 2004, this Court hereby ORDERS:
For the Court
Hon. Susan Calkins, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Philip Desfosses, Esq.
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Docket No.: GCF #03-349
Issued by: Grievance Commission
Date: April 26, 2005
Respondent: Philip Desfosses, Esq.
Bar Number: 007193
Order: Reprimand
Disposition/Conduct: Inadqueate Preparation; Neglect of a Client's Matter; Responsibilities Regarding Non-Lawyer Assistants
Report of Reprimand M. Bar R. 7.1 (e)(3)
On this date, April 26, 2005, this disciplinary matter came before Panel E of the Grievance Commission at which time the Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis. The Defendant, Attorney Philip Desfosses, was present with his attorney, James M. Bowie. Scott Douglas, the involved client in the underlying matter, was also present at the hearing and had received prior notice from Bar Counsel concerning the parties' agreed proposed stipulated disposition which is now described and adopted by the panel as follows:
Considering the above facts stipulated by the parties, the Panel finds that Desfosses was not properly diligent and did neglect Douglas?s legal action by not complying with the court?s many discovery deadlines. He also failed to properly inform that client of those deadlines and the likely expected dismissal of his litigation if discovery was not properly provided by the date(s) so ordered. He also should have better monitored the client's mailing address actually used by his staff in correspondence sent to Douglas after he had moved to Pennsylvania.
Desfosses?s conduct was in violation of Maine Bar Rules 3.6(a)(2)(3) (inadequate preparation and neglect of a client?s case) and 3.13(c) (responsibilities regarding non-lawyer assistants). In view of this misconduct, the Panel concludes, as Desfosses admitted at the hearing, that the appropriate disposition of this matter is that Attorney Phillip Desfosses be, and he hereby is, reprimanded for these stated violations of the Code of Professional Responsibility.
For the Grievance Commission
Charles W. Smith, Jr., Esq, Acting Chair
Stephen J. Schwartz, Esq.
Joseph R. Reisert Ph.D.
Board of Overseers of the Bar v. Paul K. Marshall, Esq.
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Docket No.: GCF-01-41
Issued by: Grievance Commission
Date: April 22, 2002
Respondent: Paul K. Marshall, Esq.
Bar Number: 002082
Order: Reprimand
Disposition/Conduct: Conflict of Interest: Simultaneous Representation; Conflict of Interest: Fiduciary or Other Legal Obligation to Another; Conflict of Interest: Lawyer's Own Interest
REPORT OF PANEL C
On March 7, 2002, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2) concerning alleged professional misconduct by Respondent, Paul K. Marshall, Esq. as described in a Petition dated January 22, 2002. Petitioner was represented by Geoffrey S. Welsh, Assistant Bar Counsel. Respondent appeared pro se. The record in this matter includes the pleadings, testimony from witnesses, Tina Taylor and Paul K. Marshall, Esq., and exhibits offered and admitted into evidence by both parties.
FINDINGS OF FACT
The land contract was amended on October 1, 1998, reducing the down payment to $4,500 and increasing the principal balance due to $12,500.
CONCLUSIONS:
This matter implicates the conflict provisions of the Maine Bar Rules 3.4(b), (c), (e) and (f). We determine that at the time Mr. Marshall was the attorney for Ms. Taylor regarding her personal injury claim, he was the President, Secretary/Treasurer, Director, past shareholder, and acted as the attorney for Trident in the sale of the land to his client. He prepared the land contract and set forth the terms under which the sale would proceed. Ms. Taylor was not represented by separate counsel at the time. Mr. Marshall did not obtain the informed consent of his client, Ms. Taylor to his representation of Trident, as required by 3.4(c)(2). He also had a fiduciary and other legal obligation to Trident which required that he obtain the informed consent of Ms. Taylor relating to his continued representation of her. See Maine Bar Rule 3.4(e).
For purposes of reviewing the applicability of Maine Bar Rule 3.4(f), we must take into consideration the nature of the relationship between Mr. Marshall and Trident, particularly in view of his stated belief that he had no relationship that created a conflict of interest situation.
Although, at the time of the transaction, Mr. Marshall did not own stock in the corporation (he had transferred his shares to his children), he was, for all intents and purposes, the alter ego of the entity, making all decisions and executing documents on its behalf without consultation with others. These decisions would include whether to agree to return Ms. Taylor?s down payment and cancel the deal, or whether to enforce the terms of the land contract (as he chose to do in this case). He was the President, Secretary/Treasurer and Clerk of this closely held corporation. He was an original shareholder of the corporation, whose sole purpose was real estate investment, and whose sole investment was the land in Franklin County. Ms. Taylor reasonably believed that he owned the land personally, and he never dispelled that understanding through careful explanation. The enforcement and outcome of the land transaction was substantially related to the prosecution and outcome of the personal injury claim. Both the course and outcome of both were controlled to a substantial degree by Mr. Marshall in his dual role as attorney for Ms. Taylor and his close personal and fiduciary relationship to Trident, and its current shareholders (who were his children). Accordingly, we conclude that there was a substantial risk that his financial or significant personal relationship with Trident would materially and adversely affect his representation of Mr. Taylor, requiring informed written consent. Maine Bar Rule 3.4(f)(1). This consent was not obtained. Maine Bar Rule 3.4(f)(2) deals with situations in which an attorney knowingly enters into ?any business relationship with a client.? Although Mr. Marshall was not a shareholder of Trident, as noted previously, he was, for all purposes the alter ego of Trident with regard to the sale of the land to his client. She reasonably believed that he was the owner of the land. As such, he knowingly entered into a business relationship with Ms. Taylor. We believe he also acquired a pecuniary interest adverse to the client by retaining and exercising control over the land in question and her deposit. Rule 3.4(f)(2) prohibits an attorney from knowingly entering into any business transaction with a client (or acquiring a property or pecuniary interest adverse to a client) unless specific provisions of the Rule are complied with.2 Mr. Marshall did not comply with this Rule in several respects. First, he did not fully disclose and transmit to the client the terms of the agreement in a manner which should have reasonably been understood by the client. Indeed a very important term of the agreement ? what happens in the event there is no recovery or insufficient recovery in the underlying personal injury claim ? was not addressed at all. Further we do not believe that the transaction and terms of the land contract were fair and reasonable to the client. The agreement did not conform to statutory requirements regarding land installment agreements, and its terms, and potentially its enforceability, were left uncertain. Ms. Taylor believed that there would be a provision in the agreement addressing return of her deposit if she decided not to pursue the purchase. As noted previously, the agreement did not address at all the possibility of insufficient recovery of the personal injury claim or her changing attorneys to represent her in such claims. These questions were not addressed in the agreement, but were inconclusively left to the future discretion of Mr. Marshall. Finally, it is undisputed that Ms. Taylor did not consent in writing thereto, as required by the Maine Bar Rule 3.4(f)(i)(C).3
For the foregoing reasons, we conclude that Ms. Marshall violated the provisions of Maine Bar Rule 3.4(c)(2), (e) and (f). We do not find that Mr. Marshall?s manner of handling the underlying personal injury claims of Mr. Taylor constituted violations of Maine Bar Rule 3.6.
DISPOSITION:
We cannot, under the circumstances of this case, find the violations to be minor. Mr. Marshall retained the discretion as to whether or not to return his client?s deposit or to enforce the agreement. When she asked for return of her deposit, he did not return it. When she settled the case herself after attempting to retrieve her file from Mr. Marshall, he sent her a notice of default on the land agreement, and unilaterally retained her deposit and sold the land. As a result, Ms. Taylor lost $4,500. Mr. Marshall?s violations resulted in harm to his client. On the other hand, Mr. Marshall has no prior disciplinary history, and we believe he probably was initially motivated by an interest in structuring an arrangement for Ms. Taylor to be able, financially, to purchase property she desired at a fair price. He probably felt that the case would settle for an amount sufficient to enable her to complete the purchase, but did not thoroughly consider or provide in the agreement for the possibilities that it would not, or that his client would seek to change counsel. Therefore we do not believe, as suggested by Bar Counsel, that this matter warrants a finding of probable cause for suspension or disbarment. The most appropriate disposition in this matter is a reprimand.
Accordingly, Mr. Marshall is reprimanded for his violations of Maine Bar Rule 3.4, as set forth above.
For the Grievance Commission
Alan G. Stone, Esq.
Barbara Raimondi, Esq.
Carol M. Rea
Footnotes
1Although titled ?Land Installment Contract,? the land contract did not conform to the provisions of 33 M.R.S.A. Section 481.
2(A) The transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted to the client in manner and terms which should have reasonably been understood by the client.
(B) The client is advised and given a reasonable opportunity to seek independent professional advice of counsel of the client?s choice on the transaction; and
(C) The client consents in writing thereto.
3We are unable to determine whether or not Mr. Marshall in fact advised and gave his client a reasonable opportunity to seek independent professional advice of counsel due to the conflicting testimony in this regard. He said he did. She said he did not. Because Mr. Marshall testified that he believed that he was not entering into a business transaction with a client, and did not believe he had a conflict of interest, it is unclear what his reason was to have done so.
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-04-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 22, 2002
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Disbarment
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Undignified and Discourteous Conduct that is Degrading to the Court; Lack of Preparation
ORDER
This matter came before the Court for hearing on November 8 and 9, 2004. The Board presented evidence of incidents involving the defendant, Richard Slosberg. In each of the incidents, the Board alleges Slosberg violated one or more of the Maine Bar Rules.
The facts presented in support of Count I, involving an incident that occurred on January 22, 2004, in the Cumberland County Superior Court, convince the Court that Slosberg committed conduct unworthy of an attorney in violation of Maine Bar Rule 3.1(a),1 engaged in conduct that is prejudicial to the administration of justice in violation of Rule 3.2(f)(4),2 and engaged in undignified and discourteous conduct that is degrading to the Superior Court in violation of Rule 3.7(e)(2)(vi).3
On that date, Slosberg was representing Sally Morse in a criminal matter before the Superior Court4 for the call of the docket to schedule trials for the following week. Slosberg expected the court to formally appoint him as the attorney for Ms. Morse. Ms. Morse, however, had not been before a financial screener, and had not filled out the requisite paper work concerning her ability to pay for an attorney, and thus the court could not review her indigency status. When the court declined to appoint Slosberg as attorney for Ms. Morse, Slosberg told the court that he found the procedure "very offensive," and that" [t]hey have screwed me many times with the same problem," and stated, "I don't like to be screwed" and "I don't like the defendant to be screwed."
When the trial justice told Slosberg that he did not want to argue with him, Slosberg responded, "Well, I want to argue about it, do you understand? I want, I want it on the record." He also said to the court, "What do you think you are?" and "Don't tell me where to go. I will tell you where to go." Additionally, Slosberg threatened to report the presiding justice to the Committee on Judicial Responsibility, and had to be calmed down and directed out of the courtroom by a court officer. His inappropriate conduct continued in the hallway outside the courtroom and down to the clerk's office. Such conduct by Slosberg is very serious, inappropriate, disrespectful of the court, and constitutes violations of Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(e)(2)(vi).
The facts presented in support of Count II concern an incident that occurred on January 24, 2003. Slosberg, representing Robert Machado, a defendant charged with two felony thefts, appeared before the Superior Court in Cumberland County in a proceeding conducted pursuant to M.R. Crim. P. 11A. It appeared that a plea agreement, including an agreement as to sentencing, had been reached between the State, represented by the Deputy District Attorney, and Machado, represented by Slosberg. When the court made inquiry, however, as to the terms of the agreement, it became apparent that Slosberg had failed to understand the agreement being proposed by the State, which involved consecutive sentences for the two separate charges. Machado had agreed to plead guilty based on his understanding that the sentences were to be concurrent, yet Slosberg had not informed Machado that the sentences were consecutive. The court was required to remove Slosberg from the case, and the case had to be continued for a new attorney to be appointed. The Court finds that in the Rule 11A proceeding, Slosberg violated Maine Bar Rules 3.1(a) and 3.6(a)(2)5 and that he handled the matter without preparation adequate in the circumstances.
Count III of the Information alleges that Slosberg acted improperly at the Springvale District Court on April 21, 2004. The evidence disclosed that Slosberg represented a client against whom a temporary protection for abuse order had been entered, and that the matter was scheduled for hearing on the request for a permanent order. Slosberg had been requested by the court to discuss the case with the plaintiff, the person who brought the petition for protection from abuse. Slosberg was in the hall outside the courtroom and was told by the plaintiff or her companion that they did not want to discuss settlement of the matter. Slosberg persisted in trying to discuss the case, and the Court Security Officer, Jennifer Escoto, had to instruct Slosberg to stop talking to the other party because it was apparent the other party did not want to discuss the case. Slosberg replied in a loud voice that he would talk to them if he wanted to and that Escoto could not tell him what to do. He also waved his cane in the air and threatened to "whack" the person accompanying the plaintiff with his cane. Although Slosberg was standing a substantial distance from that person when those words were spoken, the conduct nevertheless constitutes a violation of Maine Bar Rules 3.1(a), 3.2(f)(4), and 3.7(e)(2)(vi).
M. Bar R. 2(a) provides in part: "The purpose of [these] proceeding[s] is not punishment but the protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties."
The violations committed by Slosberg this case are serious. Moreover, Slosberg has an extensive history of violations of the Code of Professional Conduct. Slosberg has been subject to Bar disciplinary proceedings on several occasions, beginning in 1992. See Bar-92-13, Bar-93-3, Bar-93-10, Bar-95-9, Bar-96-16, Bar-99-1, and Bar-02-7. Some of the violations in these prior cases are similar to the violations found to have occurred in Counts I and II in this case. See Bar-92-13, Order dated November 25, 1992; Bar-93-3, Order dated July 8, 1993; Bar-95-9, Order dated March 21, 1996; and Bar-02-7, Order dated November 21, 2002.
The Court accepts as credible the testimony of Shawn Willson, M.D., a Board certified psychiatrist who testified at the hearing. Dr. Willson has treated Slosberg, and has diagnosed him as Bipolar I and as suffering from depression. Slosberg is irrational and is prone to rages, and he has not followed recommended dosages of prescription drugs. Moreover, Mr. Slosberg has difficulty appreciating the inappropriateness of his conduct, such as his conduct in the Sally Morse matter and his conduct in the Springvale District Court on April 21, 2004. Mr. Slosberg does not have the capacity to look at himself insightfully.
Because of the long history that Slosberg has with Bar Discipline proceedings, and his refusal to acknowledge either the wrongfulness or inappropriateness of his conduct, the Court concludes that Attorney Slosberg must be disbarred. See Standards for Imposing Lawyer Sanctions, American Bar Association, Standard 9.2 (1991 Edition).
In view of Slosberg's diagnosis of bipolar and depression, he will be entitled to petition for reinstatement after eighteen months from the effective date of this Order. See M Bar R. 7.3(j)(1).
It is ORDERED that Richard B. Slosberg is hereby disbarred from the practice of law in the State of Maine. Because Slosberg is currently serving an indefinite suspension, the disbarment is effective as of the date of this Order. Slosberg shall comply with M. Bar R. 7.3(i)(1).
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court
Footnotes
1M. Bar R. 3.1(a) provides:
(a)This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct ?unworthy of an attorney" for purposes of 4 M.R. S.A. ? 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law' relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.
2M. Bar R. 3.2(f)(4) provides:
(f) Other Misconduct. A lawyer shall not:
. . . .
(4) engage in conduct that is prejudicial to the administration of justice.
3M. Bar R. 3.7(e)(2)(vi) provides:
. . . .
(e) Adversary Conduct.
. . . .
(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(vi) Engage in undignified or discourteous conduct that is degrading to a tribunal.
4The Superior Court Justice presiding at the time was Thomas E. Delahanty II. Justice Delahanty appeared as a witness in this bar discipline proceeding as to the allegations in Count I. Justice Delahanty is the son of the first cousin of Justice Clifford, the single justice sitting on this case. Justice Clifford disclosed the relationship and offered to recuse from participation as a single justice in the case. Mr. Slosberg and the Board waived any objection to Justice Clifford sitting in this case. The entire courtroom proceedings in the Sally Morse incident were transcribed and available to the Court. The Court finds Justice Delahanty's testimony to be credible. Moreover all of the witnesses to the incident, including Bruce Bitteng, Megan Elam, and Justice Delahanty testified consistently with the transcript. The inappropriateness of Attorney Slosberg's conduct is apparent on the face of the record from the transcript alone.
Additionally, Mr. Slosberg attacks the credibility of all of the witnesses called the Board on the ground that they are employed by the State or the County. The Court is aware of that cause of witness bias, but nevertheless finds the testimony of each of those witnesses to be credible.
5M. Bar R. 3.6(a)(2) provides:
3.6 Conduct During Representation
. . . .
(2) handle a legal matter without the preparation adequate in the circumstances provided that, with respect to the provision on limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of limited representation?.
Board of Overseers of the Bar v. Thomas J. Peterson, Esq.
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Docket No.: GCF-03-266
Issued by: Grievance Commission
Date: January 10, 2005
Respondent: Thomas J. Peterson, Esq.
Bar Number: 000860
Order: Reprimand
Disposition/Conduct: Conflict of Interest: Successive Representation, Interests of Former Clients; Withdrawal from Employment
REPORT OF FINDINGS
On January 10, 2005 Panel C of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information concerning alleged misconduct by Respondent, Thomas J. Peterson, Esq. (Peterson), as described in the Petition dated October 28, 2004 filed by the Board of Overseers of the Bar (the Board).
Bar Counsel, J. Scott Davis, Esq., represented the Board, and Peterson was pro se, both counsel being present at the hearing. The complainant, David G. Moores, Sr., died while this matter was pending, and his two adult children, David G. Moores, Jr., and Sandra Stevens, pursued their father's complaint against Peterson. Bruce A. McGlauflin, Esq., represented both Ms. Stevens and Mr. Moores, and he had been notified and given an opportunity to be present at the hearing.
On November 2, 2004 Peterson acknowledged the Board?s service of its Petition and related exhibits upon him by regular first class U.S. Mail, but he neither answered nor otherwise responded to it. Consistent with M. Bar R. 7.1(e)(1), therefore, the allegations contained in the Petition are deemed admitted, and the Panel heard Peterson only upon the question of sanctions. Accordingly, the Panel now finds and adopts the following facts:
By representing Winifred in September, 1999 and helping her to break the joint tenancy with David in the Johnson Property, Peterson engaged in an improper former client conflict of interest. While Peterson himself might have believed that he merely was "rectifying a wrong" as he saw it, his later representation of Winifred in 1999 was improper because the Johnson Property transactions of 1996 and 1999 were substantially related, the second one clearly being adverse to David. See M. Bar R. 3.4(d)(1). Instead, Peterson should have declined to represent Winifred under M. Bar R. 3.5(b)(2)(ii), and sent her to another attorney who ethically could have done for Winifred what Peterson did. We note for the record Peterson's lack of any prior disciplinary record.
In view of the foregoing, the Panel hereby reprimands Peterson for his professional misconduct.
For the Grievance Commission
David S. Abramson, Esq.
Anne M. Courtney, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Neal L. Weinstein
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Docket No.: GCF-03-252
Issued by: Grievance Commission
Date: July 30, 2004
Respondent: Neal L. Weinstein
Bar Number: 002230
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standards of Care and Judgment; Conduct During Litigation: Improper Legal Action
REPORT OF FINDINGS
This matter came before Panel E1 of the Grievance Commission on a Disciplinary Petition of Bar Counsel alleging Respondent Neal L. Weinstein of Old Orchard Beach, Maine violated the following Maine Bar Rules in connection with his representation of Pamela C. Hawk:
§3.1(a) - conduct ?unworthy of an attorney?
§3.2(f)(2) - illegal conduct that adversely reflects on the attorney?s fitness as a lawyer
§3.2(f)(4) - conduct prejudicial to the administration of justice
§3.6(a) - failure to exercise reasonable care and skill and apply the lawyer?s best judgment in the performance of professional services
§3.6(c) - threatening prosecution of criminal charges solely to obtain an advantage in a civil matter
§3.6(f) - communicating with adverse party
§3.7(a) - asserting a position or taking other action on behalf of the client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another (added by Bar Counsel without objection at the commencement of the hearing).
A public hearing was conducted on July 6, 2004 in Portland, Maine to determine whether a Bar Rule violation had occurred and whether probable cause exists for filing an information pursuant to Maine Bar Rule 7.2(b).
The Board of Overseers of the Bar (?the Board?) was represented by Geoffrey S. Welsh, Esq.; Respondent Neal L. Weinstein was represented by James M. Bowie, Esq. No objection was made to the composition of the Panel. At the hearing the Panel admitted Board Exhibits 1 - 4, 6 - 9, 10 (Sgt. Deluca?s seven page narrative only), 11 - 14, 14A, 14B, and Respondent?s Exhibits 16 and 17, all without objection. Board Exhibit 15 (an approximately two foot length of rebar) was admitted over objection of Respondent?s counsel, but only for the limited purpose of illustrating what a conventional landscaping rebar resembles. The Panel also heard testimony of Nancy McBride, the Respondent Neal L. Weinstein, Pamela C. Hawk, Robert Morton, Adam LaBreque, Sgt. Timothy B. Deluca and Richard J. Abbondanza, Esq. On the basis of this evidence, Panel E finds that Respondent Neal L. Weinstein did violate Maine Bar Rules 3.1(a), 3.2(f)(4), 3.6(a) and 3.7(a). For the reasons stated below, the Panel reprimands Neal L. Weinstein for his violation of the Bar Rules discussed below.
In June 2003, Pamela Hawk retained the Respondent Neal L. Weinstein (hereafter ?Mr. Weinstein?) after her abutter Nancy McBride claimed ownership of approximately eight inches of what Ms. Hawk believed to be her property. Ms. Hawk and Ms. McBride own abutting residential lots located at 8 and 10, respectively, on Colby Avenue in Old Orchard Beach, Maine. Mr. Weinstein wrote a letter to Ms. McBride on June 20, 2003 (Board Exhibit 1) in which he 1) asserted his client?s ownership of the disputed eight inch strip under the principles of adverse possession, boundary by acquiescence and boundary by parole agreement, 2) suggested Ms. McBride would end up paying, among other things, his client?s attorneys fees, 3) invited a call to discuss the matter, and 4) requested removal of a recently-planted small tree. The parties disagree on whether Ms. McBride?s counsel, Attorney Richard J. Abbondanza, contacted Mr. Weinstein shortly thereafter to alert him to his representation of Ms. McBride, although everyone agrees that the lawyers spoke shortly after the incidents which are the subject of the complaint.
Apparently relying on a February 2002 Mortgage Loan Inspection sketch of her property (Board Exhibit 2) and assurances from others to establish her boundary, Ms. McBride engaged a landscape contractor to construct a low retaining wall which would effectively run along what she asserted was the common boundary line with Ms. Hawk?s lot. On July 2, 2003, the contractor?s crew began work by stringing a grade line in the precise location of the intended wall, laying out lengths of 4x4 pressure treated landscaping timbers, and scraping a shallow trench to bury the first course of timbers. Not unexpectedly, Ms. Hawk called Mr. Weinstein to complain and to see what could be done to stop the work. At approximately 9:00 AM, Mr. Weinstein arrived at the work site. Although Mr. Weinstein insists no aggressive or otherwise offensive conduct followed, other credible testimony from the landscaping crew and Ms. McBride suggests at least the following events occurred. Mr. Weinstein began by threatening the workers with criminal trespass and assuring them and Ms. McBride that any work they did he would ?destroy with my bare hands.? Because she found Mr. Weinstein?s statement so incredulous, Ms. McBride asked him to repeat it. He did. Mr. Weinstein then pulled out both grade stakes and line. When told she would call the police, Mr. Weinstein?s immediate response was ?Bring it on.? In due course, the Old Orchard Police arrived to quiet the participants, and succeeded in getting an understanding that the dispute was a civil matter, that a Court would need to clarify who owned what property, and that if the landscaping continued, it was at Ms. McBride?s risk and should allow Ms. Hawk to be able to continue to enter her driveway located immediately next to the proposed low wall. In Sgt. Deluca?s mind, everyone had agreed to his proposed compromise, although only Ms. Hawk?s daughter, Sarah, was present for this conciliation because Ms. Hawk had to leave for an appointment.
Once both the police officers and Mr. Weinstein left, the landscapers repaired what had been upset and renewed their effort to get the wall built that day. Ms. Hawk did not observe the continued work until her return at approximately noon. She admitted she called Mr. Weinstein ?in a panic? since she felt the wall made her driveway parking area much less viable than she had become accustomed to historically. Mr. Weinstein reappeared and immediately confronted the crew in what was described by all observers as violent or enraged demeanor and saturated with obscenities. As previously promised, Mr. Weinstein began tearing out the landscaping timbers, bare-handed. The perplexed landscapers then stood on their work in an effort to save it, but were asked to back down by Ms. McBride when she recognized the confrontation was escalating to something potentially more physical. One landscaper remembers confronting Mr. Weinstein with the caution ?Dude, don?t do that; you?ll get arrested.? Mr. Weinstein?s reply was ?The only way anyone is going to get arrested is if you hit me. Go ahead, hit me.? The same worker attempted to replace a grade stake, only to have Mr. Weinstein grip the other end in a tug-of-war from close quarters. When Mr. Weinstein began brandishing a piece of rebar, all of the crew retreated reluctantly to watch Mr. Weinstein remove all of their morning?s work. Virtually all of the placed timbers and rebars were thrown back on to Ms. McBride?s property. The landscape company owner estimated the value of the lost work between $600 and $800.
Mr. Weinstein?s client, Ms. Hawk, admits to retreating into her porch during the second confrontation because, in her words, ?it was tense.? She confirmed she had not authorized her lawyer?s actions or outbursts in any way. Ms. McBride returned to her phone to call the Old Orchard Beach Police Department and asked Mr. Weinstein to stay to discuss his behavior. He declined, responding ?They know where to find me.? Before leaving however, he reassured everyone once more that he would come back as often as necessary to rip out any landscaping work. Ms. McBride also then reached her counsel by phone, who made contact with Mr. Weinstein later that afternoon to ask what he thought he was doing. Mr. Weinstein?s only comprehensible response was ?McBride?s from Massachusetts,? a curious observation in view of the fact that Messrs. Abbondanza and Weinstein grew up together in the same Massachusetts community. Mr. Weinstein?s counsel suggests the observation was only a joke, but Mr. Weinstein furnished no other justification for the day?s events in their phone call.
The landscapers would not restore their work that day without further assurance they would not face a repeat performance by Mr. Weinstein. Mr. Weinstein in fact did return to the site a third time that day, later in the evening. We can only speculate what would have occurred had the wall installation been complete when he returned, but since no further demolition could occur he used the visit to reassure his client that ?It?s not how I do business.? Mr. Weinstein testified further that he had no idea what he would do when he visited the work site the first two times on July 2nd. He merely states ?I had to see it to believe it.?
Although Mr. Weinstein denies touching any stakes, throwing any objects, threatening any criminal action and using any obscenities, and asserts he only moved a timber to remove it from touching his client?s motor vehicle tire, the other eye witness testimony is both extensive and consistent, and all contrary to Mr. Weinstein?s version of the events.
Neal L. Weinstein is alleged to have violated numerous Maine Bar Rules for his actions towards the landscapers and his behavior generally. After agreeing not to press certain alleged violations, Bar Counsel?s remaining alleged misconduct focused on:
§3.1(a) - conduct ?unworthy of an attorney? §3.2(f)(4) - conduct prejudicial to the administration of justice §3.6(a) - failure to exercise reasonable care and skill and apply the lawyer?s best judgment in the performance of professional services §3.7(a) - asserting a position or taking other action on behalf of the client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another
Bar Counsel concedes that visiting the work site and speaking with the landscapers in a professional manner, viewed alone, would not be misconduct.
Of course, this Panel cannot and will not rule on the merits of the adverse possession and trespass claims which spurred these neighbors? disagreement. Those matters are now the subject of a civil suit between Ms. Hawk and Ms. McBride. But irrespective of the strength or weakness of Ms. Hawk?s legal position on July 2, 2003, this Panel is obliged to rule on Mr. Weinstein?s behavior that day. Attorney behavior, particularly in the context of representation of a client, must be worthy of our profession. We must conduct ourselves ?in the office of an attorney ... with all good fidelity.? Title 4 MRSA §806 (Attorney?s Oath). What is considered ?unworthy? is, by definition, spelled out in our Maine Bar Rules. Maine Bar Rule 3.1(a). In Board of Overseers of the Bar v. Richard B. Slosberg, BAR 92-13, 93-3 and 95-9, (3-21-1996) (verbal abuse of a representative of an adversary?s employer), Justice Roberts observed ?any verbal abuse of an adversary is unworthy of an attorney regardless of the circumstances.? ?The zeal employed by an attorney in guarding the interests of his clients must always be tempered so as to not inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities.? Office of Disciplinary Counsel v. Jackson, 84 Ohio St. 3d 386, 387-388; 704 N.E. 2d 246 (1999). Based on the evidence presented, the Panel finds Mr. Weinstein?s July 2, 2003 conduct to have been inappropriate, unprofessional and unworthy of an attorney.
Perhaps Mr. Weinstein?s initial, early morning confrontation could be characterized as zealous representation, although it was still far too immoderate in the language and actions needed to convey his message that the proposed wall was on disputed land. Nevertheless, this Panel finds the afternoon?s events were of such an extreme nature to call into question Mr. Weinstein?s professional judgment. Nothing positive can ever be achieved through a threatening, enraged confrontation, particularly with individuals who are largely unaware of the underlying dispute. Any reasonable lawyer appreciates, or should appreciate, the explosive nature of a confrontation with a work crew and the likely effect destruction of their labors would produce. Mr. Weinstein is a seasoned lawyer, presumably well aware of the judicial relief available to resolve a boundary dispute. It is difficult to imagine how an attorney?s self-help to discourage an adversary from utilizing the disputed property (in this instance a mere eight-inch strip) would ever be fruitful.
Specifically, we find that Mr. Weinstein?s self-help approach was conduct prejudicial to the administration of justice, a dramatic failure to exercise reasonable care and skill, and a grievous shortage of ?lawyer?s best judgment? in the performance of professional services. In addition, his verbal and physical confrontation with the landscapers appears to be action on behalf of the client which the lawyer knows, or should know, would merely serve to harass or maliciously injure another.
In the event the Panel concludes lawyer misconduct subject to sanction under the Maine Bar Rules has occurred, Maine Bar Rule 7.1(e)(3) requires this Panel either to issue a dismissal with a warning or to issue a public reprimand or a finding of probable cause for suspension or disbarment and direct Bar Counsel to commence an attorney disciplinary action by filing an information pursuant to Maine Bar Rule 7.2(b). In determining an appropriate sanction, this Panel took into account our finding that the Respondent acted intentionally or recklessly, that actual injury was caused by the misconduct, and that a prior record of misconduct exists. Accordingly, we believe the appropriate sanction is that Neal L. Weinstein be and hereby is issued a public reprimand for violation of Maine Bar Rules 3.1(a), 3.2(f)(4), 3.6(a) and 3.7(a).
For the Grievance Commission
David R. Weiss, Acting Chair
John H. Rich III
Harriet R. Tobin
Board of Overseers of the Bar v. Christopher J. Whalley, Esq.
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Docket No.: BAR-03-3
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 5, 2003
Respondent: Christopher J. Whalley, Esq.
Bar Number: 007370
Order: Suspension Suspended Suspension
Disposition/Conduct: Neglect; Failure to Communicate; Conflict of Interest; Improper Handling of Client Trust Funds; Lack of Proper Adherence to the Rules of Civil Procedure and Court Protocol
ORDER
This matter came before this court pursuant to an Information filed on April 9, 2003 (BAR-03-3). Assistant Bar Counsel Geoffrey S. Welsh, Esq. represented the Board of Overseers of the Bar (the Board) and Rosemarie Giosia, Esq., represented Christopher J. Whalley, Esq. The factual allegations contained in the six counts of the Information generally are admitted by the Respondent. Additionally, he self reported on two other matters after the filing of the Information, and collectively, all of his ethical violations can be summarized as follows:
Although not all of the incidents would warrant the imposition of a significant sanction, taken together, they warrant serious concern and consideration by the Court, which can summarize the source of Mr. Whalley's difficulties as follows:
The purpose of bar discipline is not punishment, but "protection of the public and the Courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties." M. Bar R. 3.1(a). Mr. Whalley's explanation for his behavior, while not completely exculpatory, suggests that he is capable of reform, and the recommendations of both his counsel and Bar Counsel recognize as much,
Accordingly, it is ORDERED that Christopher J. Whalley be suspended from the practice of law for three months, but that suspension itself shall be suspended for a period of one year under the following terms and conditions:
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Frank B. Walker, Esq.
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Docket No.: GCF-02-159
Issued by: Grievance Commission
Date: July 11, 2003
Respondent: Frank B. Walker, Esq.
Bar Number: 000058
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Neglect of a Client's Matter
REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION
On July 11, 2003 pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Frank B. Walker, Esq. of Ellsworth, Maine. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on May 27, 2003.
Assistant Bar Counsel, Nora Sosnoff, represented the Board and Attorney Nathan Dane III, Esq. represented the Respondent, Attorney Frank B. Walker, of Ellsworth at that hearing. Attorneys Dane and Walker participated by speaker phone, at their request. The complainant, Mr. Alton L. Cook of Virginia Beach, Virginia, received advance notice of the proceeding and the proposed disposition from Assistant Bar Counsel. He also participated by speaker phone.
The Panel hereby makes the following findings pursuant to the stipulation of the parties:
The Panel concludes therefore that in his representation of Mr. Cook regarding an action to quiet title to real estate, Attorney Frank B. Walker of Ellsworth engaged in professional misconduct in violation of Maine Bar Rules 3.1(a) and 3.6(a)(3) by reason of inattention and inaction, leading to the entry of judgment with prejudice against Mr. Cook.
The past misconduct cannot be excused. Future incidents of similar misconduct must be prevented. The Panel is satisfied that the specific plan for prevention is made in good faith and currently is effective, that plan being: (i) Walker is receiving effective professional attention for his personal and health difficulties; (ii) Walker has chosen permanently to limit the scope of his law practice to one area of law, transactional real estate; (iii) Walker does not, and will not, undertake any litigation at any time in the future; and (iv) Walker has established a close relationship with another Ellsworth law firm that offers him back up coverage, consultation on substantive areas of law, and accepts referrals from him for matters that he is unable to handle. Any failure by Walker to adhere to this plan for prevention shall be grounds for further review of this matter by a panel of the Grievance Commission.
The appropriate disposition of this case is a public reprimand to Attorney Frank B. Walker of Ellsworth, and it is hereby imposed.
For the Grievance Commission
Patricia Ender, Esq., Chair
Theodore Hoch, Esq.
David Nyberg, Ph.D.
Board of Overseers of the Bar v. Christopher J. Whalley
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Docket No.: BAR-04-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 19, 2005
Respondent: Christopher J. Whalley
Bar Number: 007370
Order: Reprimand
Disposition/Conduct: Conflict of Interest: Successive Representation; Confidentiality of Information
DECISION AND ORDER
This matter is before the Court pursuant to M. Bar R. 7.2(b)(1) and (2) on an information filed by the Board of Overseers of the Bar against Christopher J. Whalley, Esq. The Board alleges that Whalley violated provisions of the Maine Bar Rules regarding his duties to former clients and a disclosure of confidential information, Assistant Bar Counsel Geoffrey S. Welsh, Esq., initially represented the Board; he has since been replaced in this matter by Bar Counsel J. Scott Davis. Rosemarie Giosa, Esq., represents Whalley.
In July 2002, the Ellsworth District Court appointed Whalley to represent a mother who was facing a child protective proceeding instituted by the Department of Human Services. In the course of this representation Whalley obtained information about certain conduct of the mother, including allegations of substance abuse. The mother left the State for awhile after the case commenced, and the children eventually were permanently placed with their biological father. After advising her of what she could do if she desired to obtain custody of the children in the future, Whalley closed his case file on the matter by February 2003.
In August 2002, Whalley commenced representation of Jessica Huck. Huck sought Whalley's help because she believed her ex-husband, was not complying with the terms of their divorce judgment. At the time Whalley commenced representing Huck, he had no reason to know of any potential conflict of interest.
In July 2003, while the post-divorce matters were still pending, Huck became concerned about her ex-husband's girlfriend having contact with her child during visitation. After speaking by telephone with one of Whalley's assistants, Huck and her current husband obtained a temporary protection order to prevent her ex-husband from allowing his girlfriend to have contact with Huck's child. After obtaining the temporary order, Huck visited Whalley to further discuss this matter. During this visit, Whalley was informed for the first time that the ex-husband's girlfriend was, in fact, the former client Whalley represented in the DHS proceeding.
Whalley advised the Hucks that he could only handle the matter if it did not proceed to a hearing. Whalley told the Hucks that he could not cross-examine his former client, but if the matter could be settled without an adversarial proceeding, he could handle the matter. Whalley stated that he knew the attorney representing Huck?s ex-husband and that he was optimistic that the matter could be settled with a consent order. Whalley neither sought nor obtained the permission of his former client to represent the Hucks in this matter. The Hucks eventually did negotiate a consent order that was accepted by the court without a contested hearing on August 4, 2003. The permanent protective order entered that day provided that there would be no contact between Huck's child and Whalley?s former client.
On October 14, 2003, Whalley wrote a letter to the counsel for Huck's ex-husband. The letter indicated that Huck had recently learned that her ex-husband planned to marry Whalley's former client, who was now pregnant. In his letter, Whalley disclosed that he was involved in the former client?s DHS matter, and that he expected that DHS would not allow the woman to keep an infant child. Whalley informed the attorney for Huck's ex-husband that Huck was suspending his visitation with their child until arrangement could be made to ensure that the child would not come into contact with Whalley's former client. Again, it appears the parties ultimately settled this matter on terms similar to those agreed to in the August 4 consent order.
Whalley's former client filed a complaint with the Board of Overseers of the Bar alleging that the letter sent by Whal1ey to the attorney for Huck?s ex-husband violated her expectation of confidentiality and revealed a conflict of interest. Although bar counsel recommended that the matter be dismissed, the Grievance Commission found probable cause to believe Whalley engaged in misconduct.
This proceeding followed, during which the parties submitted a number of exhibits, the live testimony of several witnesses, and written closing arguments.
The Board first charges that Whalley violated Bar. R. 3.4(d)(l), which provides in relevant part:
M. Bar. R. 3.4(d)(1). Although Whalley suggests that his representation was not adverse to his former client because she was not a named party in Huck's action against her ex-husband, Huck was seeking to limit the former client's right to have contact with Huck's child. This not only affected the former client?s ability to be around her boyfriend's child, it also threatened her ability to maintain that relationship. The Court is satisfied that Huck?s action was adverse to Whalley's former client.
In determining whether an attorney's representation is substantially related to the subject matter of a previous representation, Maine has adopted the three-part analysis set out in Novo Therapeustik Lab. A/S v. Baxter Travenol Lab., 607 F.2d 186, 195 (7th Cir. 1979):
Adam v. MacDonald Page & Co., 644 A.2d 461, 463 (Me. 1994) (citations omitted).
Whalley represented his former client in a DHS proceeding that challenged her parental rights. He testified that he would have gathered information about the former client?s parenting, and her alleged substance abuse problem. The information he obtained from his client would have been directly relevant to the issues presented in Huck?s protective order: whether or not a child could responsibly be left in the care of the former client. Accordingly, the Court finds that the representation of Huck was substantially related to the previous matter.
The Board also charges that the letter Whalley sent to counsel for Huck's ex-husband violated M. Bar. R. 3.6(h), which provides, inter alia:
As used herein, "confidence? refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.
Whalley?s principal defense to the Board's charge is to point out that the former client brought a third party with her when she met with Whalley and discussed the facts of her case, and that the Hucks obtained their information about his former client from material given to them by parties other than Whalley. While these facts may be sufficient to call into question any assertion by the former client that the material was subject to the attorney-client privilege, M. Bar R. 3.6(h) specifically covers more than privileged information. It also covers information obtained in the course of representation that would be "embarrassing or detrimental to the client." M. Bar R. 3.6(h)(5). Whalley's assertion in the letter that he was involved in the DHS proceeding and that he expected DHS would not allow his former client to retain custody of her child was embarrassing and detrimental to the client. The most logical purpose of such a statement was to advantage the Hucks by discouraging any further negotiation on the pending motion to modify the divorce judgment.
Although Whalley offers a number of explanations and defenses for his decision to proceed with the representation, the Court is satisfied that the Board has met its burden of proof that the rules were violated.1 When an attorney believes that there is serious doubt as to whether representation is permissible, the Maine Bar Rules provide a solution: obtaining the permission of the former client. Unfortunately, Whalley chose not to pursue this option.
Having determined that Whalley's conduct violated the Bar Rules, the Court must determine what sanction is appropriate. The primary purpose of attorney discipline is not to impose punishment, but to protect the public. The Court is satisfied that in this case, Whalley acted with the sincere belief that his conduct was ethically responsible. Whalley did inform the Hucks that if the matter could not be settled before trial, he could not ethically continue to represent them. Although Whalley made a mistake about the location of the boundaries drawn by the Bar Rules, the Court does not expect perfection from all those who practice law. The correct decision in this case was not obvious, a fact reflected in Bar Counsel's initial recommendation that this matter be dismissed by the Grievance Commission. Because the evidence supports a finding that Whalley made the wrong decision in a close call, the Court believes that a reprimand is sufficient to ensure further compliance with the letter and spirit of the Bar Rules.
It is therefore ORDERED that Christopher J. Whalley is hereby reprimanded for his violation of M. Bar. R. 3.4(d)(1) and 3.6(h)(1).
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Footnote
1Although the information filed by the Board also charged that Whalley's conduct violated M. Bar R. 3.5, which governs the mandatory withdrawal of a lawyer. Bar Counsel did not address the violation in its closing argument. In light of the findings contained in its order, the Court does not find it necessary to address this issue.
Board of Overseers of the Bar v. James J. MacAdam, Esq.
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Docket No.: GCF-03-320
Issued by: Grievance Commission
Date: November 18, 2004
Respondent: James J. MacAdam, Esq.
Bar Number: 002484
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Responsibilities Regarding Non-Lawyer Assistants; Neglect of a Client's Matter; Conduct During Representation: Standards of Care and Judgment
Report of Findings of Panel B of the Grievance Commission
On November 18, 2004, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, James J. MacAdam, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 9, 2003.
Present at the hearing were Assistant Bar Counsel, Nora Sosnoff, representing the Board; Attorney James J. MacAdam, represented by Attorney Peter J. DeTroy; and both complainants, Joan Mooney and James P. Mooney, Jr.
The Panel heard testimony from Attorney MacAdam and James P. Mooney Jr. pursuant to questioning by Assistant Bar Counsel and Attorney DeTroy. Having heard that testimony and having reviewed the proposed findings presented by the parties, the Panel makes the following disposition:
Second, Attorney MacAdam failed to articulate in writing to the Mooneys that their personal injury complaint had been dismissed with prejudice by the Cumberland County Superior Court on August 30, 2000. Whether, as Attorney MacAdam claims, he called the Mooneys and orally advised them in the summer of 2002 about the dismissal from three (3) years earlier, or whether, as the Mooneys adamantly assert, they only learned of the order of dismissal with prejudice because Mr. Mooney went to the courthouse and examined the court file in the fall of 2003, Attorney MacAdam was responsible for the fact that the dismissal occurred. Additionally, Attorney MacAdam was obligated to clearly communicate that development in writing to his clients, so there was a clear record for him and the clients to rely on.
As we articulated in the previous public reprimand this Panel issued to Attorney MacAdam, and as we have occasion to repeat concerning the Mooneys? grievance, it is beneficial to both attorneys and their clients for non-lawyer assistants to perform appropriate tasks during a lawyer?s representation of a client. However, no attorney should delegate professional responsibilities to the extent that Attorney MacAdam did with a particular assistant.
We add in this case, the observation that the problems in the representation of the Mooneys could not have evolved as they did, had Attorney MacAdam not isolated himself from managing calendars and case materials, as well as the interpersonal communications associated with the representation of the clients. Attorney MacAdam was the first attorney the Mooneys had ever hired in their lives and their distress over what occurred is thoroughly understandable.
Therefore the Panel concludes that the following violations occurred:
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney James J. MacAdam.
For the Grievance Commission
David R. Weiss, Esq., Chair
John H. Rich, III, Esq.
Caroline S. Macdonald
Board of Overseers of the Bar v. Richard L. Rhoda, Esq.
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Docket No.: GCF-98-40
Issued by: Grievance Commission
Date: June 19, 2003
Respondent: Richard L. Rhoda, Esq.
Bar Number: 000124
Order: Reprimand
Disposition/Conduct:
REPORT OF PROCEEDINGS, FINDINGS, CONCLUSIONS AND DISPOSITION
On April 1, 2003, pursuant to notice, Panel A of the Grievance Commission1 conducted a public disciplinary hearing in the Probate Courtroom, Penobscot County Courthouse in Bangor, Maine. Assistant Bar Counsel Geoffrey S. Welsh appeared on behalf of the Board and Kevin M. Cuddy appeared for the Respondent, Richard L. Rhoda. There was no objection to the composition of the Panel.
The pleadings consisted of a Petition filed by the Board and a Response filed by Respondent. In the course of the proceedings, the Board offered Exhibits 1 through 10 inclusive; Exhibits 13 and 14 and Exhibits 19 through 21 inclusive, all of which were admitted without objection. Board Exhibits 11, 12, 15, 16, 17 and 18 were admitted over objection. Respondent offered Exhibits 1 through 6, all of which were admitted without objection. Mary Gregor testified as did Respondent.
Mary Gregor and her husband Francis began working together as real estate investors in 1978 and developed a ?procedure? which was typically used in their real estate transactions.2 That procedure is summarized as follows:
Oftentimes the original parcel was a large parcel which Mary would contract to buy from a record owner. Mary would then divide the large parcel into smaller parcels, selling the smaller lots in the same fashion as outlined above.
Mary and Francis began using the services of Respondent (Rhoda) in 1986 on a routine basis,7primarily for Mary?s real estate transactions, although Rhoda also helped Francis with his tax lien problems and other civil litigation. Mary and Francis continued to use Rhoda?s services until early 1993. During this time period (1986-1993) Mary and Francis encouraged buyers not to use the services of any attorney or in the alternative to use ?their? attorney. As such, Rhoda oftentimes conducted title searches for Mary?s buyers and handled the simultaneous closings, billing Mary?s buyers for his services.8 Rhoda did not begin informing these persons of his simultaneous representation of Mary (and subsequently Pine Grove Trust as described below) until January, 1991. He considers himself an experienced real estate attorney.
During this time period, (1986-1993) Mary and Francis told Rhoda to eliminate the title source in deeds he drafted on Mary?s behalf to her purchasers.9 Rhoda knew the better practice was to include title sources in deeds and he asked Mary why she wanted the title sources eliminated. She told him the reasoning was to prevent the purchasers from attempting to cut her ?out of the deal? by purchasing the property directly from the record owner for a lower price.10 Rhoda indicates Mary?s reason made sense to him and so he complied. Mary?s reasoning may have made sense at the beginning of his representation of the Gregors, but by 1990 Rhoda was well aware of the Gregors? dire financial situation and his motive for continuing to eliminate title sources from Mary?s (and Pine Grove Trusts?) deeds becomes suspect.
Mary?s apparent financial problems began in 1990, the year she and Francis began building what she describes as a ?million dollar? home in Aroostook County, which they furnished with expensive antiques and other valuable personal property. Rhoda was aware of the construction of this home. The home was financed in part by a real estate mortgage, but the costs associated with its construction began to overwhelm Mary and Francis and they began experiencing serious financial difficulties.
Unable to afford the mortgage and other expenses associated with this home, Mary began to divert funds she received as the ?deposits? from purchasers involved in her real estate transactions for her personal use. Mary would make false ?excuses?11 to delay or extend closings.
In 1990 Mary began running in arrears regarding payment of attorney fees to Rhoda.12 On August 1, 1990, Rhoda made his first loan to Mary in the amount of $14,001.00. That same day, Rhoda took a blanket mortgage on all real estate Mary owned as recorded in the Southern Aroostook Registry of Deeds. Mary signed a promissory note. Although no evidence suggests Rhoda informed Mary that she should seek advice from independent counsel prior to signing the mortgage and note, Mary states that she felt informed and it wouldn?t have mattered anyway, because she was ?desperate? for those funds. The loan was necessary because of problems which arose during a closing for Mary handled by Rhoda. Rhoda accepted a personal check from Mary, rather than a bank check, and forwarded it to the Seller. It bounced, the seller became irate, and because Mary was not around, Rhoda covered the check with his own funds. Rhoda?s knowledge of Mary?s attorney fees arrearage, coupled with his actions in obtaining a blanket mortgage over all of Mary?s real estate holdings in Southern Aroostook County confirm his knowledge of her serious financial troubles.
Mary?s financial situation worsened, and in February, 1991, she and Rhoda found themselves the subject of a lawsuit involving People?s Heritage Bank, Norman Stimson, et al., (Stimson) Cynthia Jusseaume and John Worsley, et al (Worsleys).13 The facts behind this loan are as follows:
Mary acquired a large tract of land in Perham, Maine, which she mortgaged to Peoples Heritage Bank. She divided it into smaller lots. Rhoda did the title work for Mary and knew of the Peoples Heritage Bank mortgage. In 1988 Mary deeded one of these lots to Stimson; in 1988 she deeded another to Jusseaume; and on February 22, 1990 deeded a lot to Worsleys. All these deeds were warranty deeds prepared by Rhoda. They were recorded without Rhoda or Mary obtaining partial releases of the Peoples Heritage mortgage, of which these purchasers remained unaware. According to both Mary and Rhoda, these three deeds were recorded without Rhoda?s knowledge.14 According to his office billings15 however, Rhoda represented all 3 of these parties, closed each of their transactions, prepared warranty deeds for each and did title work for Stimson and Jusseaume. He failed to notify these purchasers of his simultaneous representation of Mary. He admits that the following spring, when he first learned that the warranty deeds had been recorded, he still failed to notify any of these purchasers that their respective properties remained encumbered by the People?s Heritage mortgage and that he had failed to secure partial releases of that mortgage prior to closing.
When Mary failed to keep her payments current to People?s Heritage, it began foreclosure proceedings, naming Rhoda as a party in interest (because of his blanket mortgage on Mary?s property), and naming the Stimsons, Jusseaume and Worsleys as parties in interest. This was apparently the first time these 3 buyers learned the mortgage had not been released against their respective properties. The Stimsons counterclaimed and sued Rhoda for failing to notify them of the mortgage and failing to acquire the partial release. In order to ?resolve? the issue of the lack of partial releases and the lawsuit against her, Mary needed money she did not have. Again, Rhoda helped her out (and himself) by lending her $9,500.00 on August 15, 1991. As a result, the action was dismissed against them.16 But by then, Mary owed Rhoda $38,294.7717 for her first mortgage, interest and legal fees, so he took a security interest (in the form of a Chattel Mortgage he drafted) on antiques and considerable other valuable personal property owned by Mary.18
Both Mary and Rhoda agree that Mary never disclosed to Rhoda her ongoing diversion of funds for her own personal use; nor she says, was she forthcoming about her financial difficulties. But by August 15, 1991 it should have been abundantly clear to Rhoda that Mary?s finances were in complete disarray. He admits he should have withdrawn from further representation of Mary at this time, but did not.
No evidence was presented indicating Rhoda loaned funds to Mary on January 29, 1993 as alleged in paragraph 16(c)(3) of the Board?s Petition. However, it appears from Board Exhibit #4 that a second personal property mortgage was taken by Rhoda securing personal property on August 15, 1991.
Federal and State Tax liens were filed against Francis Gregor and in October, 1991, Rhoda began negotiating with the State for discharges of same. A notice of foreclosure dated November 12, 1991 was filed against Mary regarding a mortgage on other property she owned. In May and October of 1992, Federal tax liens were filed against Mary.
In order to avoid the May tax lien from affecting her real estate business, (by alerting prospective purchasers of her woeful financial problems) Mary asked Rhoda to draft a real estate trust agreement.19 He did so in June of 1992, knowing full well of the existence of the recorded tax lien against Mary, the Notice of Foreclosure and the desperate financial straits of both Mary and Francis. Rhoda admits the Trust instrument was created specifically to avoid purchasers from learning of the recorded lien filed against Mary. Nothing in the trust instrument disclosed the Gregors? names. The trust settlor was Mary?s mother, Marion Boyce. Thereafter, Rhoda drafted warranty deeds using the Trust.20 It can be assumed that it would have been extremely detrimental to Rhoda should Mary?s real estate business collapse, because, she owed him as of January 17, 1992, the sum of $45,675.34,21 as principal and interest for his loans and fees.
In August, 1991, Mary contracted with Haynes to buy several lots. She then divided the lots and contracted to sell 2 of the smaller lots to Gaddis and Langlais. Gaddis and Langlais paid Mary, but Mary didn?t pay Haynes so no closings occurred between Mary/Gaddis and Mary/Langlais. Rhoda handled the Haynes to Gregor portion of the transaction and drafted the warranty deeds to Gaddis and Langlais. Langlais complained to Rhoda because she had paid for her parcel of land but had not received title. Eventually, Mary was able to convey title to Langlais by paying Haynes for the Langlais lot. She used Rhoda?s services to close the deal with both herself and Haynes and herself and Langlais.
Mary never conveyed the Haynes lot to the Gaddis?, despite the fact she took their money. She does not ?remember? if she spoke with Rhoda about making the Gaddis? whole, but Rhoda, knowing of the Langlais? problem, should have known or at the very least inquired of Mary about the Gaddis? title, whereafter he had a duty to notify the Gaddis?.
On August 11, 1992, Pine Grove Trust (with Mary acting as Trustee) contracted with Callahan to purchase property and then advertised the lot for sale. Baggar contracted to buy the property from Pine Grove Trust. Callahan executed a warranty deed to Pine Grove Trust, which was held by Rhoda. In the meantime, according to Rhoda, a pre-judgment attachment lien was filed against Pine Grove Trust. Knowing the Trust could not give good title to Baggar, Mary decided to use a ?straw deed? to avoid the lien attaching to the Baggar conveyance. Rhoda concurred with Mary that a strawman would be necessary to avoid the lien and ?came up? with Faulkner as the strawman. He thereafter drafted deeds from Callahan to Faulkner and Faulkner to Baggar. The financial arrangement as regards payment to Callahan and payments made to Pine Grove Trust by Baggar, if any, is unclear from the evidence. Rhoda admits it ?bothered? him to use a strawman specifically to avoid a known lien, but he also knew the reason Pine Grove Trust was created in the first place (to avoid the Gregors? liens).22
Rhoda who represented Baggar at the same time he represented Pine Grove Trust did not disclose his fiduciary relationship with the Trust (and Mary) prior to his representation of Baggar. Despite Baggar?s specific instructions not to record the deed he received from Faulkner, Rhoda did so, signing the necessary transfer tax form as Baggar?s agent (in 1994) even when he knew Baggar did not want the deed recorded. Rhoda did so because he ?panicked? when his office was the subject of a search warrant from the U.S. Postal Service. Rhoda didn?t tell Baggar he had recorded this deed until he wrote him January 15, 1996.23
On August, 31, 1992, (At the same time the Callahan transaction was developing) Pine Grove Trust (with Mary acting as Trustee) contracted with Massaro to purchase 40 acres. Pine Grove Trust24 divided it and sold one lot to McDonalds, who paid the Trust and one lot to Barnett, who paid the Trust; however, Pine Grove Trust did not pay Massaro and consequently, the Trust did not have title to convey to McDonald or Barnett. Rhoda had prepared the deeds for McDonald and Barnett and had billed at least the McDonalds for closing costs. The McDonalds thought Rhoda was their lawyer. Despite his assertions that he began sending simultaneous representation letters to his clients in January, 1991, he sent no such letter to the McDonalds. When the McDonalds complained to Rhoda about having paid in full for a lot Pine Grove Trust didn?t own, Rhoda eventually resolved the issue by obtaining funds from the Trust (Mary) and returning the purchase price, together with interest and attorney fees and an additional sum of $500.00 to the McDonalds. It is unclear what happened to the Barnetts. Mary states ?Barnett was one of many? who did not get good title in August of 1992.
This single transaction was the source of a Grievance Hearing held before Panel A of the Grievance Commission on November 11, 1994 resulting in a reprimand to this same Respondent.25 Respondent urges this Panel to omit evidence of this transaction from this hearing on the basis of the Doctrine of Res Judicata. This panel declines to do so and considers the relevance of this transaction in the context of Respondent?s pattern of behavior during this same time period.
Ultimately, Mary Gregor declared bankruptcy and in 1996, she was convicted for mail and wire fraud stemming from her various real estate transactions.
Initially, the Panel declines to find either the equitable doctrine of laches or the doctrine of res judicata applicable to the current proceeding. Laches does not bar prosecution of attorney discipline cases in Maine. 26 Res judicata does not bar prosecution of the current proceedings because these proceedings do not arise from the same set of operative facts giving rise to Rhoda?s prior disciplinary proceeding, although that prior disciplinary proceeding necessarily involved some of the same facts giving rise to this current action.
Rhoda?s actions must be examined with reference to the time frame in which they occurred. In doing so, it becomes clear that if not directly a partner in Mary?s real estate activities, Rhoda?s relationship with her was so intertwined financially that it becomes difficult to separate the two.
Rhoda created the Pine Grove real estate trust; used straw deeds, regularly eliminated title sources from all deeds drafted for Mary and the Trust, regularly represented Mary?s buyers, did their title work and billed them, without informing those same buyers of his simultaneous representation of Mary and the Trust-- all during a time period in which Rhoda knew of the Gregors? appalling financial situation. Rhoda?s cumulative actions constitute a pattern of deceit, aimed at Mary?s purchasers and lien holders and designed to keep Mary?s business afloat. And keeping Mary?s business afloat was as much a priority for Rhoda, as it was for Mary, because during this time period she owed him many thousands of dollars.
Rhoda?s conduct in omitting deed references, creating Pine Grove Trust and using a ?straw man?, was a violation of Maine Bar Rules 3.2(f)(3) which prevents a lawyer from engaging ?in conduct involving dishonesty, fraud, deceit or misrepresentation.? The Panel recognizes the accepted use of real estate trusts as well as straw deeds, in the practice of real estate law; however, Rhoda?s knowledge of Mary?s financial situation as well as his own financial stake in her enterprise leads to the conclusion his aforementioned conduct was based on his desire to keep Mary afloat by keeping her financial troubles hidden from potential buyers as well as her creditors. Mary?s various buyers, who were represented by Rhoda while he was representing Mary (or the Trust) were victims of this pattern of behavior, as well as Mary?s various creditors.
Rhoda?s blanket mortgage over Mary?s real estate holdings during a time she owed him significant attorney fees, as well as Rhoda?s ?loan? to Mary in order to resolve a lawsuit in which he and Mary were named Defendants violated Maine Bar rule 3.4(f)(1)(2). A substantial risk existed that both his significant financial and personal relationship with Mary would materially and adversely affect his representation of her. He failed to fully disclose to Mary the repercussions of these various loans and he did not obtain her written consent. Precisely because Mary was ?desperate? for the money Rhoda lent her, it was incumbent upon him to ensure compliance with Bar Rule 3.4(f)(1)(2). He did not do so.
Rhoda?s simultaneous representation of purchasers involved with Mary and the Trust violated Maine Bar Rule 3.4(c)(d). He routinely failed to obtain the required informed consent and at no time advised these various purchasers of the effect that a multiple representation might have. Nor did he apprise these persons of his own close financial relationship with Mary.
Finally, Rhoda violated Maine Bar Rule 3.5(b)(2)(ii) by failing to withdraw from his representation of Mary and the Trust. Rhoda continued to represent both her and the Trust after he learned that Mary had engaged in misrepresentations to Stimson, Jusseaume and Worsleys regarding the People?s Heritage Mortgage. At this point, he certainly knew Mary had perpetrated a fraud.
Based upon the evidence and the record before it, Panel A determines that the appropriate disposition of this Petition is that the Respondent should and hereby is reprimanded.
For the Grievance Commission
Rebecca A. Irving, Esq., Chair
Raymond Cota
Marvin Glazier, Esq.
Footnotes
1Marvin Glazier replaced Donald Fowler as a lawyer member of the Panel.
2 This procedure was used, according to Mary, in 500 to 600 transactions.
3Usually Aroostook County
4Oftentimes these parcels would be encumbered by mortgages or other liens.
5At some point between 1986 and early 1993 the Gregors decided to put all of their real estate holdings, as well as any personal property of value in Mary?s name in order to avoid Federal and State tax liens which had been filed against Francis.
6Often the ?deposit? consisted of the entire purchase price of the parcel.
7Although Rhoda had done some work for them in 1981 and 1982. Rhoda began practicing law in 1972 and began a private practice in 1977.
8However, Rhoda continued to simultaneously represent and bill, at least one of Mary?s ?purchasers? until 1996 (Ben Baggar). See Board Exhibits #7 and #18, as examples.
9See: Board Exhibit #3.
10However, if Rhoda were in fact conducting title searches for Mary?s purchasers, the record owner of the land should have been disclosed to the purchasers.
11Citing health problems, for example, Mary and Rhoda both claim Rhoda knew nothing of Mary?s diversion of these funds.
12Although because of his bookkeeping methods and office staffing problems, he did not know how much.
13See Board Exhibit #6
14 Mary recorded the Stimson and Jusseaume deeds in 1988. But on May 3, 1989, Rhoda wrote Stimson and sent him a bill, which included title work and asked him to pay it. The Worsley deed wasn?t executed until 1990. If Rhoda had conducted title work on this property he should have known the partial releases had not been obtained or recorded.
15See Board Exhibit #7
16It can be argued Rhoda benefitted as much as Mary by the dismissal of this action, so that this $9,500.00 was not an appropriate charge to his client.
17See: Board Exhibit #4
18According to Rhoda, Francis had no interest, equitable or otherwise, in Mary?s real estate or in the personal property.
19See Board Exhibit #1
20See: Board Exhibit #8
21See Board Exhibit #4.
22As was the case with Langlais, Rhoda was also personally involved in selling real estate to Baggar. See Board Exhibit 18, letter to Baggar dated 7/5/94.
23See: Board Exhibit #18.
24Pine Grove Trust handled real estate transactions in the exact same fashion as Mary had previously. Rhoda continued representing Pine Grove Trust in the same fashion he represented Mary individually.
25See: Board Exhibit #21
26See: Board of Overseers of the Bar vs. Brian Olson, Docket No. 87-19 (1988)
Board of Overseers of the Bar v. Richard B. Slosberg, Esq.
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Docket No.: BAR-02-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 21, 2002
Respondent: Richard B. Slosberg, Esq.
Bar Number: 003446
Order: Suspended Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Litigation: Adversary Conduct; Conduct During Representation: Standards of Care and Judgment
ORDER
These matters are before the Court on an information filed by the Board of Overseers of the Bar, pursuant to Maine Bar Rules 7.2(b) (1) & (2), and the Court's order of June 18, 2002, which authorized the Board to file such an information without the necessity of any further review or hearing by the Grievance Commission under Maine Bar Rules 7.1(d),(e). The Court's order of June 18 resulted from a stipulated waiver of grievance commission review and hearing signed by the parties.
The parties have stipulated to the following material facts:
A. COUNT I
B. COUNT II
C. COUNT III
D. COUNT IV
Considering the above facts stipulated to by the parties, the Court finds that Slosberg violated several provisions of the Maine Bar Rules. His verbal abuse of Staffieri, in the courthouse and in close proximity to the courtroom itself, violated Maine Bar Rules 3.2(f)(4) and 3.7(e)(2)(vi), it being degrading to the court, and having no purpose other than to intimidate and harass Staffieri from testifying and presenting his case. Similarly, Slosberg's failure to promptly obey the orders of the officers to leave Shaw's Supermarket violated Maine Bar Rules 3.2(f)(2) & (4) because it interfered with the officers in their law enforcement duties, and adversely reflected on Slosberg's fitness as a lawyer by demonstrating his disregard of an attorney's basic obligation to obey the law. Additionally, Slosberg's failure to reply to Rameau's inquiries concerning waiver of the fees, and his failure to timely respond to filing deadlines in the Ahmady/Apria federal litigation violated Maine Bar Rule 3.6(a) (failure to use reasonable care and skill, neglect of a legal matter, and failure to keep the client informed on the status of the client' s affairs). Moreover, all of this conduct by Slosberg is in violation of Maine Bar Rule 3.1(a) (conduct unworthy of an attorney).
The Court is aware of Slosberg's significant disciplinary record. His most recent sanction is a one month suspension imposed by this Court on May 1, 1998 for client trust accounting irregularities.1 Since then, Slosberg has engaged in very little practice of law. The after effects of his June 10, 1998 stroke have left him with physical infirmities. Slosberg's misconduct, while serious, is not recent, and the Court is mindful of the deleterious effects his stroke has had on his law practice.
Accordingly, it is ORDERED that Richard B. Slosberg is suspended from the practice of law in Maine for a period of three months. It is further ordered that all of the suspension itself shall be suspended, on the condition that for a period of one year from the date of this order, Slosberg commits no violation of the Maine Bar Rules. Bar Counsel may file an information directly with the Court concerning any new complaints of professional misconduct by Slosberg without any Grievance Commission review or hearing.
For the Court
Hon. Robert W. Clifford, Associate Justice - Maine Supreme Judicial Court
Footnotes
1The Court found that Slosberg filed to use proper trust accounting procedures, not any fraud or defalcation.
Board of Overseers of the Bar v. William J. Smith, Esq.
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Docket No.: BAR-04-8
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 5, 2004
Respondent: William J. Smith, Esq.
Bar Number: 000893
Order: Order
Disposition/Conduct: Order vacating 5/14/2004 Report of Findings issued by Grievance Commission
ORDER
William J. Smith has petitioned the Court, pursuant to M. Bar R. 7.2(a) to review actions taken by a Grievance Panel of the Board of Overseers of the Bar. Mr. Smith is represented by Kevin M. Cuddy, Esq. and the Board by Assistant Bar Counsel Nora Sosnoff, Esq. The Panel found that Mr. Smith violated M. Bar R. 3.2(f)(4)1 and M. Bar R. 3.6(a)2 and concluded that Smith be reprimanded.
The Panel's findings can be summarized as follows:
By virtue of a separation agreement incorporated into a divorce decree Rodney L. Devost was ordered to pay the installments due on a debt secured by a mortgage on real property owned by Rodney and his former wife, Rebecca A. Devost. Subsequent to the entry of the divorce decree, Smith was appointed Conservator of the Estate of Rodney L. Devost. In June 2000 Smith learned that Rodney's Veteran's Administration benefits had been substantially reduced retroactively to April 1, 2000. Beginning in October 2002 Smith stopped making the mortgage payments resulting in the foreclosure of the mortgage securing the Devost debt. Smith's decision to stop making the mortgage payments was based upon his conclusion as a Conservator that he was first obligated to contribute to Devost's comfortable maintenance and support, rather than to satisfy Devost's obligations under the divorce decree.
M. Bar R. 7.2(a)(4) provides that the review of a decision by a Grievance Commission disciplinary panel to impose a public reprimand shall be based upon the record of proceedings before the Panel. The Court reviews a Panel decision to determine whether the Panel exceeded the bounds of its discretion in deciding upon a public reprimand.
The rule authorizes the Court to affirm, vacate, or modify the decision of the Panel and provides that any findings of the Grievance Commission disciplinary panel shall not be set aside unless clearly erroneous.
The ultimate findings of the Panel are contained in paragraph 10 of the Panel's report, which provided:
The Panel posits that Smith in his capacity as Conservator had an obligation to seek a modification of the District Court Order or take any other action other than to ignore such court order. The Order in question incorporates the language of the separation agreement:
The obligation as to the distribution of Rodney's VA pension was an obligation, which Rodney owed to Rebecca. Smith did not assume this obligation when he became Conservator. As Conservator, Smith could only use the funds he was provided. It is conceded that after the reduction in the VA pension, there were insufficient funds available to pay both the installments due on the debt and for the support of Rodney. Smith testified that his failure to seek a modification of the divorce decree was based on his understanding that such action would have been a needless expenditure of the ward's funds. The record would support a conclusion that the funds generated from the reduced pension were insufficient to support Devost and fulfill Smith's obligation to pay the mortgage obligation of Devost and his former wife.
The Panel exceeded the bounds of its discretion when, on the basis of this record, it concluded that Smith engaged in conduct that is prejudicial to the administration of justice.
The Panel concluded that Smith violated M. Bar R. 3.6(a) in that by failing to seek an amendment to the divorce decree he failed to employ reasonable care and skill and to apply his best judgment and prompt performance of his professional services as a lawyer in his capacity as Conservator of the Estate of Rodney. (Emphasis added). The record is, however, devoid of any evidence that Smith failed to employ reasonable care and skill and to apply his best judgment and prompt performance of his professional services as a lawyer. Smith was a Conservator duly appointed by the Aroostook County Probate Court and obligated by virtue of 18-A M.R.S.A. ? 5-425(a)(2)
Smith was neither the complainant's lawyer3 nor the ward's lawyer. The evidence is clear that Smith's action as a Conservator were fully in accord with the statute. Though a lawyer, Smith was not acting as a lawyer, but a Conservator. The finding of the Panel that Smith failed to fulfill his obligations as a lawyer is clearly erroneous.
The entry is:
For the Court
Hon. Paul L. Rudman, Associate Justice - Maine Supreme Judicial Court
Footnotes
1M. Bar R. 3.2(f)(4) provides:
. . . .
(4) engage in conduct that is prejudicial to the administration of justice.
2M. Bar R. 3.6(a) provides:
(a)Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the clients' affairs.
3The complaint against Smith was brought by Rodney Devost's ex-wife, Rebecca Devost, now Rebecca Cyr.
Board of Overseers of the Bar v. Allan W. Hanson, Esq.
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Docket No.: GCF 04-161
Issued by: Grievance Commission
Date: December 7, 2004
Respondent: Allan W. Hanson, Esq.
Bar Number: 006814
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Misrepresentation and Conduct Prejudicial to the Administration of Justice; Failure to use Reasonable Care and Skill and Neglect of Legal Matters
REPORT OF FINDINGS OF PANEL A OF THE GRIEVANCE COMMISSION
On December 7, 2004, pursuant to due notice, Panel A1 of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information concerning alleged misconduct by Respondent, Allan W. Hanson, Esq., (Hanson), as described in the Petition dated October 7, 2004 filed by the Board of Overseers of the Bar (the Board).
Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and James M. Bowie, Esq., represented Hanson, both counsel and Hanson being present at the hearing. Dana F. Strout, Esq., represented the complainant, Brenda M. Stubbs (Stubbs), and he had been provided notice and given an opportunity to be present, but did not attend the hearing. 2 He understood, however, that the parties had stipulated to the following facts, which the Panel now so finds and adopts:
Considering the above facts stipulated to by the parties, the Panel finds that Hanson was not sufficiently diligent in handling Stubbs? and Munn?s claims in violation of M. Bar R. 3.1(a) (conduct unworthy of an attorney), 3.2(f)(3), (4) (misrepresentation and conduct prejudicial to the administration of justice) and 3.6(a) (failure to use reasonable care and skill and neglect of legal matters).
In view of the foregoing misconduct, however, the Panel concludes, as Hanson so acknowledged at the hearing, that the appropriate disposition of this complaint is that Hanson be, and he hereby is, reprimanded for violating M. Bar R. 3.1(a), 3.2(f)(3),(4) and 3.6(a) as established in the findings of fact discussed in this report. The panel notes that Hanson has no disciplinary record.
For the Grievance Commission
Donald A. Fowler, Jr., Chair
John A. Mitchell, Esq.
Raymond J. Cota
Footnotes
1John A. Mitchell, Esq., substituted for Harold L. Stewart II, Esq.
2Mr. Strout also represented Brenda Munn whose cases Mr. Hanson also mishandled. See paragraph No. 5 below. Ms. Munn, however, never complained to the Board about Hanson.
Board of Overseers of the Bar v. Peter D. Faulkner, Esq.
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Docket No.: GCF-02-03
Issued by: Grievance Commission
Date: December 3, 2 002
Respondent: Peter D. Faulkner, Esq.
Bar Number: 007770
Order: Reprimand
Disposition/Conduct: Neglectof a Client's Matters; Preserving Identity of Funds and Property
REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION
On December 3, 2002, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning alleged misconduct by the Respondent, Peter D. Faulkner, Esq., as described in a disciplinary petition dated and filed by the Board of Overseers of the Bar on October 15, 2002.
Bar Counsel J. Scott Davis represented the Board and Theodore H. Kirchner, Esq. represented Peter D. Faulkner, Esq. at that hearing. The complainant, Mousam Valley Orthopaedics (Orthopaedics), through its employee, Katharyn Lineweber, had been notified of the proceeding and the proposed disposition. Ms. Lineweber was not present, but indicated through Bar Counsel that she agreed with the proposed disposition. Accordingly, the Panel now adopts the factual stipulations of counsel as set forth below and hereby finds that a reprimand is the appropriate sanction for Mr. Faulkner?s misconduct.
Respondent Peter D. Faulkner, Esq. of Sanford, County of York, State of Maine is and was at all times relevant hereto an attorney admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. He has been practicing in Maine since 1993.
This matter was initiated when the Board received on January 2, 2002, a Grievance Complaint dated December 27, 2001, from Katharyn Lineweber (?Lineweber?), on behalf of Mousam Valley Orthopaedics (Orthopaedics).
In January 2001 Orthopaedics approached Faulkner relative to approximately 300 overdue patient accounts. Faulkner agreed to review those accounts and accepted a $1000.00 retainer. He agreed to take additional fees on a contingency basis.* Orthopaedics then delivered those 300 files to Faulkner. Between January 2001 and September 2001, Faulkner directly contacted 38 of 300 debtors.
Orthopaedics believed Faulkner promised to give it monthly reports, but that in any event it reasonably was entitled to regular reports regarding Faulkner?s collection efforts, funds expended and funds received. Faulkner provided one accounting to Orthopaedics during the course of representation, doing so in March 2001 for the period from January 16, 2001 to March 20, 2001.
Faulkner failed to regularly inform Orthopaedics of the status of its collection accounts between March 14, 2001 and Orthopaedics? termination of his representation on September 25, 2001. During this time, Lineweber, on Orthopaedics? behalf, made several requests to Faulkner seeking information on the status of the accounts. Faulkner failed to respond timely to those requests.
On September 25, 2001, Orthopaedics dismissed Faulkner and retained Attorney Edwin R. Daggett (Daggett) to replace him and handle its collections accounts, including all accounts for which it had previously retained Faulkner.
On September 25, 2001, Orthopaedics sent a letter to Faulkner advising him that it had retained Daggett, and requesting that he transfer all Orthopaedics? collection files to Daggett?s law firm, Daggett & Parker.
On October 25, 2001, Orthopaedics sent a copy of the same letter to Faulkner, with an additional notation of ?SECOND REQUEST.?
Orthopaedics also requested that Daggett try to get a response from Faulkner. Between September 25, 2001 and October 26, 2001 Daggett?s firm made several unsuccessful attempts to contact Faulkner by telephone. On October 26, 2001 Daggett wrote to Faulkner asking him to transfer the files.
On November 2, 2001, Orthopaedics wrote to Faulkner and demanded an immediate response to its request of September 25, 2001 that Faulkner transfer the files to Daggett. Orthopaedics also requested that Faulkner provide an accounting and a refund of Orthopaedics? retainer.
On November 30, 2001, having had no response to its prior correspondence and understanding Faulkner had likewise not answered Daggett?s requests, Orthopaedics sent Faulkner a letter by certified mail with the same demands.
On December 13, 2001, Orthopaedics learned that Faulkner refused to accept and sign for its certified mail. As a result, Orthopaedics then sent Faulkner a facsimile (?fax?) of its November 30, 2001 letter.
Faulkner then called Orthopaedics and spoke with Lineweber. During that conversation, Faulkner promised her that he would deliver the files to Daggett the next day, December 14, 2001.
On December 14, 2001, Faulkner failed to deliver the files. On December 19, 2001, Faulkner delivered to Daggett?s office the bulk of the collection files.
On June 4, 2002, a panel of the Grievance Commission reviewed Faulkner?s conduct in this matter. That panel found probable cause to believe that Faulkner had engaged in misconduct subject to sanction under the Maine Bar Rules for which discipline should be imposed. That Panel authorized Bar Counsel to prepare and present a formal petition for disciplinary action before another Grievance Commission panel.
Faulkner?s failure to provide adequate client information to Orthopaedics, either as to the small number of the 300 collection accounts he actually attempted to contact or the factual details of the status of all accounts constituted neglect of a client?s matter in violation of Bar Rule 3.6(a)(3). His repeated failures to timely respond to either Daggett or Orthopaedics to turn over the files constituted misconduct in violation of Bar Rule 3.6(e)(2)(iv). Likewise, his failure after March 2001 to ever provide any further financial accounting as requested by the client violated Bar Rule 3.6(e)(2)iii).
Faulkner has admitted his misconduct and agrees that he should be reprimanded for violation of the Maine Code of Professional Responsibility. He has no prior disciplinary record on file with the Board of Overseers of the Bar.
As a result, the panel having found that Attorney Faulkner engaged in violations of Maine Bar Rules 3.6(a)(3); and 3.6(e)(2)(iii),(iv), the panel further concludes that the appropriate sanction is that Attorney Peter D. Faulkner be and hereby is reprimanded.
For the Grievance Commission
Stephen G. Morrell, Esq., Chair
Charles W. Smith, Jr., Esq.
Harriet Tobin
Board of Overseers of the Bar v. Peter E. Rodway, Esq.
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Docket No.: GCF-02-185
Issued by: Grievance Commission
Date: December 1, 2003
Respondent: Peter E. Rodway, Esq.
Bar Number: 007105
Order: Reprimand
Disposition/Conduct: Neglect of a CLient's Matter
REPORT OF FINDINGS OF PANEL B OF THE GRIEVANCE COMMISSION
On December 1, 2003, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent, Peter E. Rodway, Esq. (Rodway), as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on August 27, 2003. Assistant Bar Counsel, Geoffrey S. Welsh, Esq., represented the Board, and Peter J. DeTroy, III, Esq., represented Rodway, both counsel being present at the hearing.
The complainants, Scott E. and Brenda L. Spearrin (the Spearrins) did not attend the hearing. They had, however, been notified and understood that the parties had stipulated to the following facts and agreed upon disposition of this matter by a reprimand, which the Panel now so finds and adopts:
Considering the above facts stipulated to by the parties, the Panel finds that Rodway was not diligent in pursing the motion to vacate the default judgment for Brenda. While his reliance on her to provide him with the small claims hearing date so that he could calendar the matter for trial is understandable, his failure to file the motion to vacate is not, and it constituted neglect.
In view of the foregoing misconduct, the Panel concludes, as Rodway admitted during the hearing, that the appropriate disposition of this complaint is that Rodway be, and he hereby is, reprimanded for his violations of the Maine Bar Rule as established in the findings of fact discussed in this report. In reaching this conclusion, the Panel recognizes that Rodway has not previously been disciplined.
For the Grievance Commission
David R. Weiss, Esq., Chair
John H. Rich, III, Esq.
Caroline S. Macdonald
MEMORANDUM
To: Members, Panel B of the Grievance Commission
From: Geoffrey S. Welsh, Assistant Bar Counsel
Re: Board of Overseers of the Bar v. Pete E. Rodway, Esq., GCF# 02-185
Date: January 6, 2004
Enclosed for the Panel?s review and consideration is a copy of the proposed Report of Findings of Panel B of the Grievance Commission regarding the above captioned matter scheduled for a disciplinary hearing on Monday, December 1, 2003 @ 9:30 a.m. at the Maine District Court, 205 Newbury Street, 2nd Floor ? Courtroom #10, Portland, Maine, 04112.
As indicated in the proposed Report, both parties have agreed that the appropriate disposition of this disciplinary matter is by a reprimand. Assuming that Report is acceptable to the Panel, we are prepared to proceed with the normal abbreviated format in such matters, whereupon the parties and counsel appear and the Panel accepts and signs the Report at that time. Please notify the Grievance Commission Clerk or me if for any reason that procedure will be unacceptable to the Panel.
Because of the tentative disposition of this case agreed upon by Mr. DeTroy and me, I shall not be proceeding with witnesses, etc., if the Panel rejects the proposed disposition. Consequently, I have agreed with him that this case then would be reassigned to another Grievance Commission Panel for a full evidentiary hearing.
Thank you.
Enclosure
C: Peter J. DeTroy, III, Esq.,
(With enclosure)
Board of Overseers of the Bar v. In Re Jeffrey Pickering
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Docket No.: BAR-87-1
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 25, 2002
Respondent: Jeffrey Pickering
Bar Number: 001644
Order: Reinstatement
Disposition/Conduct:
STIPULATION AND ORDER
This matter is before the Court on Mr. Pickering's Petition for Reinstatement filed pursuant to Maine Bar Rule 7.3(j). Bar Counsel J. Scott Davis, Esquire, represents the Board of Overseers of the Bar ("the Board") and Malcolm L. Lyons, Esquire represents the Petitioner, Mr. Pickering. The parties, by and through their counsel, have entered into the Stipulation set out below, and based on that Stipulation, this Court grants Petitioner Pickering's Petition on the conditions and terms set forth herein.
The parties stipulate to the following:
Based on the recommendation of the Board of Overseers of the Bar that Petitioner Mr. Pickering be reinstated to the Bar and be admitted to practice law in the State of Maine, this Court orders, adjudges and decrees as follows:
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen T. Hayes, Esq.
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Docket No.: GCF#03-305
Issued by: Grievance Commission
Date: July 23, 2004
Respondent: Stephen T. Hayes, Esq.
Bar Number: 000065
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Conduct During Representation: Standands of Care and Judgment; Neglect of a Client's Matters
REPORT OF PROCEEDINGS FINDINGS, CONCLUSION AND DISPOSITION
In view of the foregoing misconduct, the Panel concludes that the appropriate disposition of this complaint is that Mr. Hayes be, and he hereby is, reprimanded for violating Bar Rules 3.1, 3.2(f)(4), 3.6(a), and 3.6(a)(3).
For the Grievance Commission
Patricia M. Ender, Panel D Chair
David Nyberg, Ph.D.
Stephen Schwartz, Esq.
Footnotes
1Mr. Card had assisted with his aunt?s dairy operation, but did not own or profit from her business; he had ceased work on a saw-mill operation several years before his death.
Board of Overseers of the Bar v. John P. Frankenfield
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Docket No.: BAR-04-1
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 2, 2004
Respondent: John P. Frankenfield
Bar Number: 008176
Order: Disbarment
Disposition/Conduct:
DECISION AND ORDER
The Board of Overseers of the Bar filed an Information against Respondent setting forth numerous factual averments and alleging violations of Maine Bar Rules 2(c), 3.1(a), 3.2(f)(2)-(4), 3.3(a), 3.5(b)(2), 3.6(a), 3.6(e)(1)-(3), and 3.7(a)(b)1. In his answer, Respondent admitted many of the factual averments.
While this matter was pending, the Board moved to amend its information to add a third count alleging additional violations of Maine Bar Rules 3.1(a), 3.2(f)(1)-(4), 3.5(b)(2)(ii), 3.6(a), and 3.7(a).2 The Court granted that motion. In light of his admissions and stipulations entered on the record, the parties agreed that it was unnecessary to conduct an evidentiary hearing before the Court on the charges filed by the Board. The averments and stipulations reveal the following:
Frankenfield advised the Court that had it proceeded with an evidentiary hearing in this matter he would have invoked his privilege against self-incrimination. Although Frankenfield is entitled constitutionally to invoke the privilege, the court can draw adverse inferences against Frankenfield on the basis of that invocation. As we stated in State v. Horton, 561 A.2d 488,491 (Me. 1989):
See also Board o/Overseers of the Bar v. Charles Kadish, Docket No. BAR-96-17.
In light of the Court's findings of fact, Frankenfield's promised invocation of his privilege against self-incrimination, and the money that remains unaccounted for from the funds of his grandfather's estate and the McCarthy/Jones escrow account, the Court concludes that Frankenfield has taken substantial funds for his own use. He has thus engaged "in illegal conduct that adversely reflects on a lawyer's honesty, trustworthiness, or fitness as a lawyer ..." in violation of Maine Bar Rule 3.2(f)(2) and has engaged "in conduct involving dishonesty, fraud, deceit or misrepresentation" in violation of Maine Bar Rule 3.2(f)(3).
Respondent is disbarred from the practice of law in the State of Maine. Such disbarment is to take effect as of 5:00 P.M., Friday, September 3, 2004 and is subject to the requirements of Maine Bar Rule 7.3(1) and (j).
For the Court
Hon. Howard H. Dana, Jr., Associate Justice - Maine Supreme Judicial Court
Footnotes
1The text of the Rules cited is as follows:
2 Purpose of Rules
(c) Grounds for Discipline. Each act or omission by an attorney, individually or in concert with any other person or persons, which violates any of these rules shall constitute misconduct and shall be grounds for appropriate discipline notwithstanding that the act or omission did not occur in the course of an attorney-client relationship or in connection with proceedings in court. The failure without good cause to comply with any rule, regulation or order of the Board or the Grievance Commission or to respond to any inquiry by the Board, the Grievance Commission or Bar Counsel shall constitute misconduct and shall be grounds for appropriate discipline.
3.1 Scope and Effect
(a) This Code shall be binding upon attorneys as provided in Rule l(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S.A. Section 851 and Rule 7(e)(6)(A). Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not be interpreted as an approval of conduct not specifically mentioned.
3.2 Admission. Disclosure and Misconduct
(f) Other misconduct. A lawyer shall not:
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice.
3.3 Fees: Fee Arbitration; Fee Division
(a) Excessive Fees. A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The responsibility assumed, the amount involved, and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer performing the services;
(8) Whether the fee is fixed or contingent; and
(9) The informed written consent of the client as to the fee agreement.
3.5 Withdrawal from Employment
(b) Mandatory Withdrawal.
(ii) The lawyer knows, or should know, that the lawyer's continued employment will result in violation of these Rules;
3.6 Conduct During Representation
(a) Standards of Care and Judgment. A lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not
(2) Handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation; or
(3) Neglect a legal matter entrusted to the lawyer.
(e) Preserving Identity of Funds and Property.
(1) All funds of clients paid to a lawyer or law firm, other than retainers and advances for costs and expenses, shall be deposited in one or more identifiable accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state. No funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(ii) Funds belonging in part to a client and in part presently or potentially to a lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client; in that event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(ii) Identify and label securities and properties of a client promptly upon receipt and place them in a safe-deposit box or other place of safekeeping as soon as practicable;
(iii) Maintain complete records of all funds, securities and other properties of a client coming into possession of the lawyer and render prompt and appropriate accounts to the client regarding them; and
(iv) Promptly payor deliver to the client, as requested by the client, the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.
(ii) A pooled, .insured, interest-bearing account with subaccounting by the financial institution or the lawyer or law firm, which will provide for computation of the interest earned by each client's funds and the payment or crediting of each client?s net interest to the client.
3.7 Conduct During Litigation
(a) Improper Legal Action. A lawyer shall not file a suit, assert a position, delay a trial, or take other action on behalf of a client when the lawyer knows, or should know, that such action would merely serve to harass or maliciously injure another.
(b) Improper Concealment, Statement or Evidence. A lawyer shall not knowingly make a false statement, conceal information legally required to be revealed, or participate in the creation or preservation of false evidence.
2 The text of these rules appears in Footnote 1 with the exception of Rule 3.2(f)(1):
(f) Other Misconduct. A lawyer shall not:
Board of Overseers of the Bar v. Jennifer R. Raymond, Esq.
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Docket No.: GCF-04-270
Issued by: Grievance Commission
Date: June 28, 2005
Respondent: Jennifer R. Raymond, Esq.
Bar Number: 008540
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Representation: Standards of Care and Judgment; Neglect of a Client's Matter; Conduct Involving Ddishonesty, Fraud, Deceit, or Misrepresentation;Preserving Identity of Funds and Property
REPORT OF FINDINGS OF PANEL E OF THE GRIEVANCE COMMISSION
On June 28, 2005, pursuant to due notice, Panel E of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning misconduct by the Respondent, Jennifer R. Raymond, Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on March 11, 2005.
Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board and Attorney Jennifer Raymond, pro se. The complainant, Jean Rancourt had notice of the hearing and declined to be present. After discussion with Assistant Bar Counsel, Ms. Rancourt reviewed this proposal in advance and offered no comments. The Panel heard testimony from Attorney Raymond pursuant to questioning by Assistant Bar Counsel. Having heard that testimony and having reviewed the proposed findings presented by the parties, the Panel makes the following disposition:
Like the previous grievance against Attorney Raymond, the current violations concern standards of care and judgment. By reviewing her actions in total, it is clear that Attorney Raymond committed "conduct unworthy of an attorney". After meeting with Ms. Rancourt at the commencement of her representation, Attorney Raymond performed virtually no work on the?case.
Attorney Raymond also failed to meet the standard requiring a Maine attorney to "take reasonable measures to keep the client informed on the status of the client's affairs." Attorney Raymond failed to articulate to Ms. Rancourt the correct status of her legal matter. In fact, Ms. Rancourt only learned of the actual status because she went to the courthouse and inquired about it. Once there, she learned that there was no case. Attorney Raymond was responsible for the fact that there was no case. Additionally, Attorney Raymond should have communicated that fact to her client, so there was a clear record for her and the client to rely on. See M. Bar R. 3.6(a).
Attorney Raymond was not experienced in the area of law that this case required. She did not prepare to take this legal matter on and she neglected what was entrusted to her by Ms. Rancourt. As a result, Ms. Rancourt suffered damages in excess of $7000.00 and her property was foreclosed.
As noted in the previous public reprimand the Panel issued to Attorney Raymond, it is evident that Attorney Raymond had no significant experience in real estate. In both cases, she neglected a legal matter of a client and misrepresented to each client the final outcome. While the two cases occurred during the same time period in 2000-2002, Ms. Rancourt's complaint was filed in 2004. Attorney Raymond has taken full responsibility for her actions and - the subsequent distress it caused Ms. Rancourt. At the hearing, Attorney Raymond was remorseful and apologized to Ms. Rancourt.
As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties. It appears that a reprimand serves those purposes. Attorney Raymond's status in Maine is an inactive attorney. She received reciprocal discipline in Massachusetts due to the 2003 Public Reprimand in Maine. The panel finds that a reprimand is a sufficient sanction because Ms. Raymond is genuinely remorseful and she is voluntarily no longer practicing law.
Therefore the Panel concludes that the following violations occurred:
Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1 (e)(3)(c) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction. These factors are:
The Panel has accordingly considered the foregoing factors and finds that Attorney Raymond has violated duties owed to the client and the legal system. She acted knowingly and negligently and there was actual injury to her client. Ms. Raymond's decision to go inactive in Maine as well as totally cease the practice of law serve as mitigating factors to the current disposition. By her decision not to practice, the public is protected from further misconduct; and since she is an inactive attorney, it is unlikely that such conduct will be repeated. Furthermore, if and when Attorney Raymond decides to request reinstatement in Maine, she must comply with the obligations under M. Bar R. 6(c)(3) and therefore 7.3 (j)(5).
The Panel concludes that the appropriate disposition of this case is a public reprimand to Attorney Jennifer Raymond.
For the Grievance Commission
Charles W. Smith, Esq., Chair
Ann M. Courtney, Esq.
Joseph R. Reisert, Ph.D
Board of Overseers of the Bar v. Marsha Weeks Traill, Esq.
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Docket No.: GCF-07-155
Issued by: Grievance Commission
Date: February 17, 2009
Respondent: Marsha Weeks Traill, Esq.
Bar Number: 002509
Order: Reprimand Decision Appealed
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation;Conduct Prejudicial to the Administration of Justice
NOTE: Public Reprimand Appealed - See Single Justice Decision 10/16/09
REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION M.Bar R. 7.1(e)(4)
On December 8, 2008, with due notice, Panel C of the Grievance Commission conducted a public hearing pursuant to Maine Bar Rule 7.1(c)(4). This disciplinary proceeding was commenced by the filing of a Disciplinary Petition on July 8, 2008.
At the hearing, the Board was represented by Assistant Bar Counsel Aria eee and the Respondent was present and represented by James M. Bowie, Esq. The Complainant, Mr. J,1 also was present during the December 8, 2008 hearing.
After due consideration or the testimony of the witnesses and the evidence presented, the Panel makes the following disposition:
Mr. and Mrs. J were involved in the litigation of a divorce action in the Maine District Court in Biddeford, Maine, commencing in 2004. Mr. J was represented at all relevant times herein by Ray R. Pallas, Esq. of Westbrook, Maine and Mrs. J was represented at all relevant times here in by the Respondent, Marsha Weeks Traill, Esq. of Gorham, Maine.
Mr. J filed a Grievance Complaint on May 25, 2007 which alleged that Attorney Traill deliberately misrepresented the mental health of her client immediately prior to and on the date that the parties placed their entire settlement agreement on the record, April 12, 2006. Over the course of this divorce action, it is undisputed that the mental health of Mrs. J was at issue.2
On April 12,2006, Mr. and Mrs. J, through counsel, placed a comprehensive agreement for the resolution of their divorce action on the record in the Maine District Court in Biddeford. On April 7, 2006, five (5) days prior to the initially scheduled contested hearing, Mrs. J was admitted to the Spring Harbor mental health facility in South Portland, Maine where she remained until discharged on April 11, 2006 due to what has been described as imbalances in her medication regimen. Attorney Traill testified that she first became aware of her client's admission on April 10, 2006 by members of her church, and that Attorney Tram, thereafter, was instructed by her client not to disclose her hospitalization to Attorney Pallas.
Attorney Traill testified that her client's mental health had been a significant issue for Mr. J during the divorce proceedings. She anticipated a conversation with Attorney Pallas prior to the final hearing and was certainly conflicted by how she would answer Attorney Pallas' anticipated questions about her client's mental health. Attorney Traill recalls both the conversation she had with Attorney Pallas on the day of the scheduled hearing, April 12, 2006, and an additional telephone conversation with Attorney Pallas on April 10, 2006. Her recollection of the latter was that Attorney Pallas asked about the children who were unavailable for a scheduled weekend visit. When asked by Attorney Pallas if he had anything to be concerned about, Attorney Traill understood why Attorney Pallas was making the inquiry. Her stated recollection of her response to the question about whether Attorney Pallas had anything to be concerned about was, "Not that I am aware of or something of that nature". Attorney Pallas testified that he made a similar inquiry on the date of the contested hearing, April 12, 2006. Based on the representations Attorney Traill made, Attorney Pallas advised his client to move forward with an agreed upon judgment which provided, in part, for shared parental rights and responsibilities of the parties' two minor children and a sharing of the children's primary residence.
The Panel credits Attorney Traill with accepting a contentious divorce case on a pro bono basis. The Panel also recognizes that Attorney Traill found herself in a difficult situation. She was part of a church community that was actively involved in assisting her client. Attorney Tram's daughter also babysat for her client's children on occasion. In addition, in the days before the hearing, the church community was apparently involved in an elaborate plan to keep Mr. J from knowing about her client's hospitalization and the whereabouts of his children. This personal connection to Mrs. J as well as their mutual church community no doubt played a role in Attorney Tram's decision to simply accept her client's request for secrecy without discussing the pros and cons of such an approach. It also apparently contributed to the poor judgment she displayed when she responded to Attorney Pallas' inquiries. She knew she would be speaking with Attorney Pallas prior to the April 12, 2006 hearing and that to the extent she disclosed her client's hospitalization, the parties would be moving forward with a contentious final hearing where the primary residence of the children would be squarely at issue.
Attorney Traill asks the Panel to consider her obligations to keep the information about her client's hospitalization confidential in accordance with Maine Bar Rule 3.6(h)(i). Attorney Traill was asked a question by Attorney Pallas that she knew was directed at the mental health of her client. She did not refuse to answer the question, but rather answered in a fashion that was deceitful at the very least.
Maine Bar Rule 3.2(f)(3) prohibits a lawyer from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation." Black's Law Dictionary defines "deceit" as a "fraudulent and deceptive misrepresentation, artifice or device, used by one ... to deceive and trick another who is ignorant of the true facts, to the prejudice and damage of the party imposed upon. To constitute "deceit," a statement must be untrue, made with knowledge of its falsity or with reckless and conscious ignorance thereof ... in a manner apparently fitted to induce [one] to act thereon ... "
A determination of whether an attorney has fulfilled the obligations set forth in Rule 3.2(f)(3) should not depend on the parsing of words or a strained interpretation of precisely what was said. Attorney Traill knew that Mr. J would not go forward with the settlement agreement if he learned about his wife's hospitalization. While Attorney Traill may not have personally believed that the hospitalization was significant, she knew that her client's husband would have found it to be fundamentally important. By answering Attorney Pallas' question the way she did on April 12, 2006, Attorney Traill knew or should have known that she had provided Attorney Pallas and his client with a false sense of security which resulted in them moving forward with the settlement agreement without further inquiry.
Therefore, this Panel finds that Attorney Traill's actions violated Maine Bar Rule 3.2(f)(3) and that her conduct was prejudicial to the administration of justice in violation of Maine Bar Rule 3.2(f)(4) and as such, was conduct unworthy of an attorney in violation of Maine Bar Rule 3.1(a).
Based upon Attorney Traill's misconduct and for the reasons expressed in this Decision, the Panel finds that the appropriate disposition and sanction of this case is a public reprimand to Marsha Weeks Traill, Esq. as provided by Maine Bar Rule 7.1(e)(3)(C) which is now imposed upon her effective this date.
For the Grievance Commission
David S. Abramson, Esq., Chair
Martha Gaythwaite, Esq.
Christine Holden, Ph.D.
Footnotes
1The names of the Complainant and his former wife have been deleted to protect their privacy interests.
2Mrs. J suffers from bipolar and borderline personality disorders which were controlled with appropriate prescription medications.
Board of Overseers of the Bar v. William J. Smith, Esq.
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Docket No.: GCF-03-02
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 14, 2004
Respondent: William J. Smith, Esq.
Bar Number: 000893
Order: Report of Findings
Disposition/Conduct: (Vacated by 8/5/2004 Court Order)
NOTE: Public Reprimand Appealed - See Single Justice Decision 8/5/2004
REPORT OF FINDINGS OF PANEL A OF THE GRIEVANCE COMMISSION
On May 4, 2004, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), to determine whether there were grounds to issue a reprimand or if probable cause existed to file an information concerning alleged misconduct by the Respondent, William J. Smith, Esq. (Smith), of Van Buren, County of Aroostook and State of Maine, as described in a Petition dated and filed by the Board of Overseers of the Bar (the Board) on January 23, 2004. Assistant Bar Counsel, Nora Sosnoff, Esq., represented the Board, and Smith was represented by Kevin M. Cuddy, Esq. The Complainant, Rebecca Cyr (Complainant), and Smith attended and testified at the hearing.
The Panel finds and adopts the following:
In viewing of the foregoing misconduct, the Panel concludes that the appropriate disposition of this complaint is that Smith be, and he hereby is, reprimanded for his violations of the Maine Bar Rules as established in the findings of fact discussed in this report.
For the Grievance Commission
Donald A. Fowler, Jr., Esq, Chair
Harold L. Stewart, II, Esq.
Raymond J. Cota, Jr.
Board of Overseers of the Bar v. Rebecca St. Laurent
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Docket No.: GCF# 09-018
Issued by: Grievance Commission
Date: March 9, 2010
Respondent: Rebecca St. Laurent
Bar Number: 004123
Order: Reprimand
Disposition/Conduct: Failure to comply with affidavit requirements
Stipulated Report of Findings and Order of Panel C of the Grievance Commission
On February 8, 2010, with due notice, Panel C of the Grievance Commission conducted a disciplinary hearing concerning misconduct by the Respondent, Rebecca St. Laurent. This disciplinary proceeding had commenced on October 30, 2009 through the Board of Overseers of the Bar?s filing of a Disciplinary Petition. The February 8, 2010 hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(2)(E).
At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Aria Eee and Ms. St. Laurent appeared telephonically, pro se. Prior to the hearing date, the parties submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as stipulated and presented by the parties, the Panel makes the following disposition:
Respondent Rebecca St. Laurent (St. Laurent) of Washington, DC had been at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine. As such, Ms. St. Laurent, a 2006 admittee to the Maine Bar, has been subject to the Maine Bar Rules. She is currently a suspended Maine attorney (see below) and she does not plan to seek reinstatement to practice law.
On October 16, 2008 Ms. St. Laurent was administratively suspended by the Board due to her CLE deficiencies and her failure to register and pay the necessary fees as required by the Maine Bar Rules. On February 2, 2009, Bar Counsel docketed a sua sponte grievance complaint against St. Laurent related to her failure to comply with the affidavit requirements of Maine Bar Rules 3.2(f)(1) and 7.3(i)(2)(A),(B).
After Bar Counsel?s filing of this disciplinary action, Ms. St. Laurent did eventually file a response and an affidavit in this matter. In that response, Ms. St. Laurent verified her lack of any clients and actual law practice in Maine. Similarly, Ms. St. Laurent emphasized her desire not to become a Maine practitioner. Given that intention, Ms. St. Laurent does not contest this proceeding and agrees that her conduct, though not intentional, resulted in violations of the Maine Bar Rules.
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Ms. St. Laurent?s above-outlined failures, the Maine Bar Rules were violated and as a consequence of her administrative suspension, she is no longer able to serve as a member of the Maine Bar.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Ms. St. Laurent agrees that she did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Ms. St. Laurent?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Rebecca St. Laurent which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C), (4). Bar Counsel shall deliver that Reprimand to Ms. St. Laurent by U.S. Mail and email on this date.
For the Parties
Aria Eee, Assistant Bar Counsel
Rebecca St. Laurent, Esq.
For the Grievance Commission
David S. Abramson, Esq., Chair
Martha C. Gaythwaite, Esq.
Christine Holden, Ph.D
Board of Overseers of the Bar v. Laurie Anne Miller, Esq.
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Docket No.: BAR-03-08
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 23, 2004
Respondent: Laurie Anne Miller, Esq.
Bar Number: 003231
Order: Suspended Suspension
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Neglect of a Client's Matter; Inadquate Preparation; Competency; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Conduct Prejudicial to the Administration of Justice
ORDER
This matter came before the Court on May 24, 2004 pursuant to a disciplinary information filed by the Board of Overseers of the Bar on December 1, 2003. Bar Counsel J. Scott Davis, Esq. represented the Board, and Defendant Laurie Anne Miller, Esq. of Bangor, an attorney admitted to practice law in Maine and subject to the Maine Bar Rules appeared pro se.
Based on the testimony of Katherine A. Violette and Attorney Miller, coupled with facts and ethical violations alleged in the disciplinary information which were admitted by Miller, the Court finds as follows:
On or about January 7, 1997, Katherine A. Violette was injured on a Bangor Housing Property sidewalk and suffered multiple injuries. Shortly thereafter Violette hired legal counsel at Downeast Law Associates, P.A. from Orrington to pursue a civil action against Bangor Housing Authority. Violette's matter was initially handled by Attorney Julio DeSanctis who then referred the matter to Miller at Downeast Law Associates.
On or about January 7, 1999, two (2) years after Violette's injuries had occurred, a civil complaint was filed in the Penobscot County Superior Court by Miller on Violette's behalf against Bangor Housing Authority. Miller misled Violette by telling her that her case had been filed in court earlier than it had been, and later further misled Violette by telling her that the case was still pending and taking a long time in Superior Court because civil cases such as Violette's action had to wait for the preferential scheduling treatment normally given to criminal cases on the court's docket. In fact, Miller failed to arrange for service of the summons and complaint, and thereafter failed to take any action in the case.
Miller subsequently failed to respond to the Superior Court's Order of August 1, 2001 to show cause why Violette's case should not be dismissed pursuant to M. R. Civ. P. 41(b)(1), On October 25, 2001 Penobscot County Superior Court Justice Jeffrey Hjelm ordered Violette's case - Violette vs. The Bangor Housing Authority - dismissed with prejudice. The Penobscot County Superior Court Clerk's office provided Miller with a copy of Justice Hjelm's dismissal order of October 25, 2001. Miller never informed Violette of the dismissal when it occurred or anytime thereafter. She also failed to inform Violette that her law office had moved to a new location in Bangor.
Furthermore, as late as February 2003 when Violette telephoned Miller to inquire about the status of the case, Miller misrepresented facts to Violette by stating she was still waiting for a court date in Violette's lawsuit. When Violette then responded by telling Miller that by her own recent inquiry of the Penobscot County Superior Court Clerk, she was told that her case had in fact been dismissed by the court on October 25, 2001, Miller promised to check and confirm that the dismissal had occurred. However, Miller failed to do as promised, and never had any further contact with Violette.
On May 20, 2003, Violette complained to the Board. When Miller responded to Bar Counsel about Violette's grievance complaint, she provided no details as to the actual reason for her failure to inform Violette that her lawsuit had been dismissed for lack of prosecution, but did admit that Violette's "court complaint was dismissed due to an error that (Miller) made." Miller also acknowledged that she had received many calls and inquiries from Violette, but never reviewed the file during those conversations, and instead only explained to Violette what to expect in the normal course of civil litigation. At the hearing before this Court, Miller testified that the "mistake" she committed was her failure to have the defendant (Bangor Housing Authority) served. She also admitted that she never informed Violette of her failure to make service.
Miller claimed in her response to Violette's grievance that she never saw or knew of any dismissal of the civil action until it had been "brought to (her) attention by Ms. Violette this year." At the hearing, however, Miller admitted that she did know or certainly should have known from the long delay of any action, that Violette's litigation had been dismissed, and that she erred by not taking any action to prevent the dismissal, and by failing to correctly and truthfully inform Violette of the dismissal.
By her failure to pursue Violette's personal injury matter and by her further failure to respond to the court's request and/or demand for her to show cause why the matter should not be dismissed under M.R. Civ. P. 41(b), Miller engaged in violations of M. Bar R. 3.6(a)(1)(2)(3).
In addition, by her failure to be diligent and thorough in her maintenance or review of Violette's case file when Violette would call and inquire, or at any other necessary times, Miller again violated M. Bar R. 3.6(a)(1)(2)(3). The Court is particularly concerned that Miller further engaged in flagrant misrepresentations to Violette well after a year from the date the matter had been dismissed with prejudice by stating that the case was still on the court's docket. These misrepresentations are clear and serious violations of M. Bar R. 3.2(f)(3)(4). Standing alone, such egregious deceit of this client concerning Miller's own failure to properly pursue the litigation, and her failure to take any steps to prevent the court's dismissal of the litigation for lack of prosecution, is serious misconduct warranting significant disciplinary sanction.
Attorney Miller has the following similar prior disciplinary record history on file with the Board of Overseers of the Bar:
Based on the Panel's Report imposing that earlier reprimand, the Court finds that there is similarity between the misconduct involved in Miller's reprimand in 1998 and the misconduct in the present matter involving her neglect of and misrepresentations about the court's dismissal of Violette's lawsuit.
The seriousness of Miller's violations of the Bar Rules requires that she be suspended from the practice of law. Given the similarity between this current misconduct and that of the 1998 reprimand, Bar Counsel contends that at least some period of "actual served" suspension must be imposed. Miller asks that she receive only a "suspended suspension," with a court-ordered attorney/monitor arrangement being put in place to supervise her practice for a specific period of time. Bar Counsel does not object to such a supervisory arrangement as long as some period of real suspension from the practice of law is also imposed upon Miller.
M. Bar R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, demonstrate an inability to properly discharge their professional duties to clients, the legal system, the profession or the courts.
Miller's serious misconduct violated duties to her client as well as to the legal system and the profession. At the outset she acted in a grossly negligent fashion by not paying proper and appropriate attention to Violette's case, but she then greatly aggravated her misconduct by intentionally and knowingly deceiving Violette as to the true status of her case, including never informing Violette that the case had been dismissed by the court because of her neglect of it. Although Miller was relatively candid and contrite at the disciplinary hearing before this Court, she was not completely candid as to the nature, extent or seriousness of the misconduct she committed in Violette's matter in her response to Bar Counsel's initial inquiry concerning the grievance.
It is also significant that Violette has been injured and harmed by Miller's misconduct, both emotionally and financially. The statute of limitations for any action she might have had against the Bangor Housing Authority has now run so she has no legal ability to pursue any claim for her Injuries or to help pay any related outstanding medical expenses.
All of the above aggravating factors support the suspension of Miller from the practice of law. Therefore, in consideration of all of the facts and evidence before this Court, the Court imposes the following sanction:
Attorney Laurie Anne Miller is suspended from the practice of law in the State of Maine for a period of six (6) months, commencing October 1, 2004. All but two (2) months, specifically October 1 to November 30, 2004, of that suspension is hereby suspended, subject to the following conditions being met:
For the Court
Hon. Jon D. Levy, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Patrick Hunt
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Docket No.: BAR-09-12
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 12, 2010
Respondent: Patrick Hunt
Bar Number: 002707
Order: Suspension Suspended Suspension
Disposition/Conduct: Failure to exercise reasonable care
Order
On January 29, 2010, this court found that the Defendant Patrick Hunt violated Maine Bar Rule 3.6(a), failure to exercise reasonable care and skill. This court found and concluded that the Defendant failed to exercise reasonable care and skill by (1) not knowing the law applicable to the case he was handling; (2) not properly preparing a complaint filed in court against another person; (3) not taking the necessary steps to amicably resolve a pending legal matter where all the parties agreed to the final resolution; and (4) waiting too long to resolve the pending matter. For these reasons and reasons stated on the record this court finds that the Defendant violated Maine Bar Rule 3.6(f).
On March 1, 2010, this court heard argument of counsel regarding what sanctions if any should be imposed for the aforementioned violations. Plaintiff's exhibit 1 was admitted into evidence without objection. This exhibit sets out prior actions taken against the Defendant by the Board of Overseers of the Bar. Over objection by the Defendant, the court admitted Plaintiff's Exhibit 2, a statement from a person affected by the actions of the Defendant. Plaintiff's Exhibit 3 was admitted without objection. This exhibit contained the expenses incurred by the Board in conjunction with the case.
This court must consider the appropriate sanction in light of the violations found. The court's determination must be based on the Maine Bar Rules' directive that the purpose of this disciplinary action is not the punishment of the Defendant but the protection of clients, the public, and the interest of fair administration of justice.
For reasons stated on the record, the court hereby ORDERS that the Defendant's right to practice law in the State of Maine shall be suspended for a period of six months commencing April 1, 2010. All but thirty days of this suspension shall be suspended. The Defendant shall be monitored for a period of one year. During this time he shall take 2 CLE courses dealing with litigation and probate matters. If he has taken these types of courses during this past year, he may receive credit for them. It is further ordered that he pay to the Board of Overseers two thirds of the expenses associated with this case-three thousand six hundred and nineteen dollars ($3619).
It is further ordered that the Defendant withdraw as counsel in all matters involving the Department of Health and Human Services and the Estate of Eldora Bourgeois.
For the Court
Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Paul L. Letourneau, Esq.
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Docket No.: BAR-09-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 25, 2010
Respondent: Paul L. Letourneau, Esq.
Bar Number: 009544
Order: Suspended Suspension
Disposition/Conduct: Conduct during representation; Responsibilities regarding Non-Lawyer Assistants.
Order
On February 9, 2010, the Board of Overseers of the Bar (the Board) commenced the above attorney disciplinary action by the filing of an Information. Based upon the Board's previous filing, this Court issued an Order temporarily suspending Attorney Paul L. Letourneau with conditions upon his continued practice of law in Maine. That September 25, 2009 Decision and Order scheduled the final hearing on this matter for March 25, 2010.
At the March 25, 2010 hearing, Attorney Letourneau was represented by Timothy E. Zerillo, Esq. and the Board of Overseers was represented by Assistant Bar Counsel Aria eee. Also in attendance at the hearing was Richard Afuma, a former client of Attorney Letourneau, who had previously complained to the Board about his representation. Attorney Joseph Mekonis, Letourneau's Monitor and Maine Assistance Program (MAP) Director, William Nugent were also in attendance.
Attorney Letourneau was admitted to the Maine Bar in December 2003. Since his admission, he has primarily worked as a solo practitioner with a concentration on criminal defense and family law. In the course of this proceeding, it has become apparent to the Court that Attorney Letourneau proved unable to properly manage his busy law office. Following the September 2009 Decision and Order, this Court directed that Attorney Letourneau's practice be restricted solely to criminal cases and closely monitored by another attorney. With those provisions, Attorney Letourneau's continued practice has not generated further client complaints, but on two occasions has resulted in referrals from District Attorney's office to the Monitor and to the Board. The Court understands that those two concerns have been resolved without warranting any intervention from the Board or the Court, and no new incidents have since been reported.
As a result of the previous client complaint filings and the stipulations reached for this proceeding, the Court finds that over the course of his time as a solo practitioner, Attorney Letourneau engaged in violations of then applicable Maine Bar Rules 3.6(a) and 3.13(c). Specifically, Attorney Letourneau's failure to adequately communicate with his clients and properly monitor their legal matters led to a general neglect of those nine (9) clients who complained to the Board. Letourneau's failure to supervise and subsequently take action against his former legal assistant exacerbated the existing problems related to client communication, neglect of legal matters, and managing of his law practice.[1]
Attorney Letourneau was previously ordered to issue apology letters to the complainants in the matters against him. While Attorney Letourneau did not complete those apologies within the time frame originally ordered, by March 17, 2010, Attorney Letourneau did deliver individual, written apology letters to Ryan Byther, Nicholas Wentworth, Richard Afuma, Joe Thayer, Dominique Smith, Louis Doyon, Thomas Cyr, Amy Boothby and Robert Boardman.
Keeping in mind that the purpose of bar discipline proceedings is not punishment but rather protection of the public, the Court must fashion an Order that addresses the problems associated with Attorney Letourneau's practice but does not unnecessarily interfere with his livelihood. In that regard, the Court imposes upon Attorney Letourneau a six (6) month suspension, but suspends all of that period. As referenced herein, Attorney Letourneau's practice remains restricted to criminal defense, and Attorney Letourneau shall not undertake additional employment outside his law practice without prior approval from both his Monitor and the MAP Director, William Nugent.
Additionally, Attorney Letourneau shall undergo bi-weekly monitoring by Joseph Mekonis, Esq. who shall serve in that capacity until March 25, 2011, or until further order of the Court. The specific terms of Attorney Mekonis's monitoring shall be outlined by separate Order of the Court and are incorporated into this Order by reference.
After a term of four (4) months without new complaints or referrals, and with prior notice to the Court and Bar Counsel, the Monitor may assist Attorney Letourneau with adding an additional practice area to his law practice. In that regard, new complaints or referrals in which the underlying facts are alleged to have occurred before the date of this Order will not be an automatic bar to expansion of Attorney Letourneau's practice areas, but may be presented to the Court for consideration.[2]
Attorney Letourneau shall remain in contact with the Director of the Maine Assistance Program (MAP) to determine what, if any, services he should undertake in order to improve his ability to manage his law practice. If requested by MAP, Attorney Letourneau shall enter into a contract for services to be administered and monitored through the MAP program.
Finally, during the period of monitoring and for two years thereafter, Bar Counsel may elect to file an Information directly with the Court without any Grievance Commission review or hearing concerning any new complaints of professional misconduct allegedly committed by Attorney Letourneau and received by the Board after the date of this Order.
Accordingly, it is hereby ORDERED and ADJUDGED that Paul L. Letourneau, Esq. is suspended for a period of six (6) months for his violations of then applicable Maine Bar Rules 3.6(a) and 3.13. However, all of this suspension is hereby suspended provided Attorney Letourneau complies with the above-outlined conditions and engages in no further misconduct. A failure to abide by any of these conditions may result in a finding of contempt by the Court and further post-judgment proceedings. See M. Bar R. 7.3(i)(1)(F).
For the Court
Hon. Ellen A. Gorman, Associate Justice - Maine Supreme Judicial Court
Footnotes
[1] Letourneau was not aware of many actions taken by his former assistant, James Bowes, as Letourneau failed to establish proper supervision of Bowes. As a result, Bowes's failures relating to office management and client contact went unnoticed by Letourneau for months. In addition, there is evidence showing that Bowes actively deceived some of Letourneau's clients, and answered several of the bar complaints without Letourneau's knowledge. One client, Nicholas Wentworth, a complainant in this proceeding, submitted an Affidavit to the Board attempting to withdraw his complaint against Letourneau, based upon his realization of Bowes's deception. Letourneau acknowledges, however, that the failures of his assistant are his responsibility, and that his failure to appropriately monitor and control Bowes warrant imposition of the discipline imposed by this Order.
[2] This distinction is due to Mr. Wentworth's recent complaint against Letourneau concerning representation during the time of Bowes's employment. Any new complaint/referral related to that time period may be considered by the Court.
Board of Overseers of the Bar v. Brian Aromando
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Docket No.: BAR-10-4
Issued by: Single Justice, Maine Supeme Judicial Court
Date: March 23, 2010
Respondent: Brian Aromando
Bar Number: 009897
Order: Temporary Suspension
Disposition/Conduct:
Order of Suspension
By documents dated February 26, 2010, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order temporarily suspending Brian Aromando from the practice of law in the State of Maine. Included with the Board's Petition were related exhibits and an Affidavit of Bar Counsel. The Court notes that in October 2009 Mr. Aromando was administratively suspended from the practice of law in Maine for his failure to maintain his continuing legal education requirements, failure to either renew his annual registration for his law license or pay the required annual fee.
Upon consideration of the Board's Petition and Affidavit it is hereby ORDERED:
For good cause shown by the Board that Brian Aromando appears to have committed numerous violations of the Code of Professional Responsibility and/or Maine Rules of Professional Conduct, thereby serving as a threat to clients, the public and to the administration of justice, this Court hereby orders that he be temporarily suspended from the practice of law in Maine until the conclusion and resulting disposition of all disciplinary matters now pending before the Grievance Commission or the Court, including his full payment of the duly ordered refund amount of $1500.00 to James Moe, or until such other time as the Court may direct.
For the Court
Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Miklos M. Pongratz
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Docket No.: BAR-09-14
Issued by: Maine Supreme Judicial Court
Date: April 8, 2010
Respondent: Miklos M. Pongratz, Esq.
Bar Number: 009563
Order: Findings of Fact and Conclusions of Law
Disposition/Conduct: Standards of Care and Judgment; Interest in Litigation
Findings of Fact and Conclusions of Law
The evidentiary hearing on the information filed by the Board of Overseers of the Bar was held on February 26, 2010. The Board was represented by Jacqueline L.L. Gomes, Esq., and the respondent, Miklos M. Pongratz, Esq., was represented by Peter J. DeTroy, Esq. The Court has carefully considered the testimony of the witnesses and exhibits received in evidence and makes the following findings of fact and conclusions of law.
Attorney Pongratz was admitted to the Maine Bar in 2004 and has since maintained a solo law practice in Raymond. In August 2007, Pongratz was retained by Darcie Bolduc to represent her in connection with a family matter filed in the Bridgton District Court by the father of Ms. Bolduc?s young son. The father was largely uninvolved with the son, but his complaint sought to establish expanded rights of parent/child contact.
During the course of the representation, Pongratz and Bolduc participated in two court-sponsored mediation sessions at the Bridgton courthouse. The second was held on November 5, 2007, a Monday, and began at 9 a.m. Following the mediation session, Pongratz invited Bolduc to join him for breakfast, and the two then met at a diner in Bridgton. At the conclusion of breakfast, Pongratz invited Bolduc to join him for a beer that afternoon. She agreed. They returned to Raymond in their separate vehicles and subsequently left together in Pongratz?s truck to travel to a bar in Gray. They were together at the bar for approximately 1.5 to 2 hours, and then returned to Raymond in Pongratz?s truck.
In their testimony, Pongratz and Bolduc offer widely different accounts of what occurred during their time together after the mediation session. The Court resolves those conflicts in the factual findings that follow.
During their breakfast together at the diner in Bridgton, Pongratz and Bolduc discussed her case and matters unrelated to her case. Pongratz told Bolduc that he was attracted to her. At one point, he put his hand on her thigh. These actions made Bolduc feel uncomfortable, but she thought that Pongratz was kidding and she made light of his behavior.
Once at the bar in Gray, Pongratz and Bolduc each consumed two beers and discussed her case and matters unrelated to her case. While there, Pongratz took a photograph of Bolduc?s buttocks with his cell phone when Bolduc was turned around and not facing him. He showed her the photograph and told her that she ?had a nice ass.? Bolduc objected to the photograph having been taken and insisted that Pongratz delete it, which he did.
During the ride from Gray to Raymond, Pongratz again expressed to Bolduc that he was attracted to her, and he proposed that they go to his home to have sex. Pongratz told Bolduc that if she wanted to have sex with him, ?that would be fine.? She responded, ?You?re my lawyer, you?re not supposed to talk like this.? Having refused Pongratz?s invitation, Bolduc left for home in her own car as soon as they arrived in Raymond. The day?s events left Bolduc confused and shaken.
Following November 5, Bolduc discussed events related to her case by telephone with Pongratz?s legal assistant and, on at least one occasion, by telephone with Pongratz.1 On December 4, 2007, Bolduc called Pongratz?s legal assistant to inform her that she had retained Thomas Bell as her new attorney. Attorney Bell called Pongratz?s legal assistant later that day and expressed his desire to pick up Bolduc?s client file at Pongratz?s office. Later that day, Pongratz, or his legal assistant, called Bolduc and told her that she would be required to appear in person to pick up her file and to sign a payment agreement for her outstanding fees.
On December 6, Bolduc and her mother appeared at Pongratz?s office to pick up her file. Upon meeting with Bolduc and her mother, and before providing Bolduc her client file, Pongratz had his legal assistant prepare a document captioned ?Termination of Services and Acknowledgement of Fees Owed,? which memorialized that Bolduc owed Pongratz $2204.25, and that she agreed to pay the balance at the rate of $50 per month with interest accruing at the rate of twelve percent per annum. Based on what Pongratz stated, Bolduc understood that she was required to sign the document as a condition to receiving her file. Pongratz gave Bolduc her client file after she signed the agreement.
Bolduc was advised by Attorney Bell of her right to file a grievance complaint regarding Pongratz?s actions with the Board of Overseers of the Bar. Bolduc completed a handwritten complaint on March 17, 2008, and the allegations in the complaint resulted in a hearing before a panel of the Grievance Commission on August 25, 2009. By a decision dated August 26, 2009, the hearing panel found probable cause for Pongratz?s suspension or disbarment from practice and directed Bar Counsel to file a disciplinary information with the Maine Supreme Judicial Court pursuant to Maine Bar Rule 7.2(b).2
The Court rejects Pongratz?s suggestion that Bolduc?s claims regarding his professional misconduct are a complete fabrication motivated by her dissatisfaction with the outcome of the mediation held on November 5th and her desire to avoid paying the money she owes for his services.3 In all but one respect that is addressed below, the Court finds that the inconsistencies between Bolduc?s report of the events of November 5th in her handwritten complaint, her testimony before the Board, and her testimony before the Court, are largely the product of her lack of experience with the legal process and in providing testimony, the fact that she had not reread her handwritten complaint after she submitted it in March 2008, and the passage of time.4
There is one significant aspect of the Board?s allegations against Pongratz that the Court concludes has not been established by a preponderance of the evidence. Bolduc?s handwritten complaint asserted that Pongratz first expressed his interest in having sex with Bolduc when they were in the parking lot of the diner, and that he told her that if she agreed to have sex, she would not have to pay her outstanding legal fees. Bolduc did not repeat this specific allegation in her testimony before the Court. She testified that at the diner ?he said a few inappropriate things? that made her feel uncomfortable, but further testified, ?I don?t really remember? the inappropriate things he said.
Pongratz?s proposal of a quid pro quo of sex in exchange for the forgiveness of legal fees is the most serious professional misconduct alleged by the Board. Although a factual finding that Pongratz proposed a quid pro quo at the diner could be based on the handwritten complaint itself (which was marked as an exhibit and received in evidence), the Court declines to do so. The most probative and reliable evidence regarding this critical fact is Bolduc?s testimony, under oath, that she could recall what Pongratz said at the diner. The Court concludes that the allegation of a quid pro quo has not been proven by a preponderance of the evidence.
Based on the preceding findings of fact, the Court concludes as a matter of law that:
The parties are directed to file written memoranda on or before April 23, 2010, setting forth their positions regarding the disciplinary sanction that should be imposed based on the Court?s findings of fact and conclusions of law.
For the Court
Hon. Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
Footnotes
1 Consistent with Bolduc?s testimony and contrary to Pongratz?s evidence, the Court finds that Bolduc and Pongratz did not meet in person at his office on November 19, 2007.
2 The Board of Overseers of the Bar alleged that Pongratz violated M. Bar R. 3.1(a); 3.4(f)(1), 2(i), 2(v); 3.6(a); and 3.7(c)(1).
3 For example, although Pongratz admits that he took a photograph of Bolduc?s buttocks while the two were at the bar, he testified that he did so at her insistence and against his better judgment. The court does not accept this explanation.
4 Bolduc?s claim that Pongratz propositioned her during the course of their time together on November 5th is consistent with the undisputed facts that it was Pongratz who pursued time alone with Bolduc by initiating their breakfast meeting and then proposing that the two meet later in the day to go to a bar. Further, her testimony is consistent with that of her mother, who explained that when Bolduc returned home the afternoon of November 5th, she was in a state of disbelief and was very upset. Bolduc?s testimony is also corroborated by her actions in finding and retaining a new attorney and terminating Pongratz soon after November 5th. The Court?s credibility assessments also rest on the Court?s observation and evaluation of each witness?s demeanor in open court.
5 The Maine Bar Rules were abrogated and superceded by the Maine Rules of Professional Conduct effective August 1, 2009.
Board of Overseers of the Bar v. Andrews B. Campbell
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Docket No.: GCF-08-280
Issued by: Grievance Commission
Date: 04-13-2010
Respondent: Andrews B. Campbell, Esq.
Bar Number: 001344
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Preserving Identity of Funds and Property; Identify and Label Securities and Properties of a Client
Stipulated Report of Findings and Order of Panel C of the Grievance Commission
On March 8, 2010, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Andrews B. Campbell, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on October 22, 2009.
At the hearing, Attorney Campbell (Campbell) was represented by William B. Cote, Esq. and the Board was represented by Assistant Bar Counsel, Jacqueline L.L. Gomes. The complainant, John Allen, was not present but participated in the disciplinary hearing telephonically. Prior to the hearing, the parties had submitted a proposed, Stipulated Report of Findings and Order for this Grievance Commission Panel?s review and consideration.
Having reviewed the proposed Report as presented by counsel, the Panel makes the following disposition:
FINDINGS
Respondent Andrews B. Campbell (Campbell) of Bowdoinham, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Campbell was admitted to the Maine bar in 1972, but was suspended and then disbarred from practice from 1987-1999. He was conditionally reinstated to practice in 1999 and opened his law office in Waldoboro. Upon his full compliance with those conditions in 2001, the Court (Saufley, J.) found that he had successfully returned to the practice of law and therefore ordered the removal of all remaining reinstatement conditions.
On July 22, 2008, Mr. John Allen (Allen) filed a grievance complaint against Attorney Campbell. The complaint alleged multiple violations of the Code of Professional Responsibility by Attorney Campbell. On or about September 4, 2008 Attorney Campbell, through his attorney, filed a response with the Board, providing information regarding his representation of Mr. Allen. By way of background, Mr. Allen hired Attorney Campbell to represent him in multiple criminal matters and a potential lawsuit for wrongful death, arising from a fatal accident caused by Mr. Allen which occurred on May 24, 2006.
Attorney Campbell drafted a fee agreement letter specifying an initial retainer of $15,000.00 with attorney time to be billed hourly at $150.00. The fee agreement also contained a provision for a mortgage in the amount of $100,000.00 to be placed on Mr. Allen?s home in order to secure legal fees for both the criminal and civil cases. The mortgage was recorded at the Sagadahoc County Registry of Deeds on May 30, 2006.
On June 14, 2006, Mr. Allen was arrested on felony drug charges and was held at the Cumberland County Jail. An associate of Attorney Campbell met with Mr. Allen at the jail. Attorney Campbell had directed the associate to inquire whether Mr. Allen had any cash or other liquid assets to pay for his criminal defense. Mr. Allen confided that he had some jewelry and replica watches at his home along with $10,000 cash, which he explained was hidden inside his house. Mr. Allen guaranteed that the money and property were not drug related and gave his permission for the money and proceeds of the personal property to be used for attorneys? fees. Mr. Allen gave the associate permission to obtain a key to enter his locked home to collect the money and personal property and transfer them to Attorney Campbell.
Before June 18, 2006, the Bath Police Department executed a search warrant covering Mr. Allen?s residence. On June 19, 2006, Mr. Allen was arraigned on the new charges. Mr. Allen met with his attorneys prior to his court appearance and signed further paperwork brought by Attorney Campbell regarding the mortgage on his home. Mr. Allen?s bail was revoked and he was then held at the York County Jail while his criminal cases were pending. After the court appearance, Attorney Campbell?s associate obtained the money and personal property from Mr. Allen?s home.
Attorney Campbell made no inventory or other contemporaneous record of the personal property removed on June 19, 2006 from Mr. Allen?s home. Campbell directed the associate to deposit $9,500 of Mr. Allen?s $10,000 into a business checking account belonging to Andrews Bruce Campbell, P.A. Unbeknownst to the associate, that account was not an IOLTA. Attorney Campbell obtained a certified bank check for $9,500 the following day and then deposited it into his IOLTA account.
Attorney Campbell instructed his associate to keep $500.00 of the money as compensation. Due to an oversight, Attorney Campbell did not give Mr. Allen credit on his accrued legal fees for the $500.00 which went to Attorney Campbell?s associate. Sometime thereafter, the jewelry, watches, and cell phone were transferred to Attorney Campbell. On June 21, 2006, pursuant to instructions from Mr. Allen, the associate obtained Allen?s wallet and contents from the York County Jail. The wallet and contents were transferred to Attorney Campbell. On June 25, 2006, Attorney Campbell, pursuant to instructions from Mr. Allen, inspected the Allen home and secured it against unauthorized persons. While Attorney Campbell did not make a complete inventory of the personal property contained in Mr. Allen?s home or of any property removed from the home for safekeeping, he did create a contemporaneous record of most of the personal property in photographs.
On June 27, 2006 Attorney Campbell advised Mr. Allen to sell most of his personal property and his residence given the estimated length of time Mr. Allen would be incarcerated. He further advised Mr. Allen to place the resulting proceeds in trust with any remaining balance after the deduction of attorney fees and costs to be remitted to Mr. Allen post-incarceration. On June 28, 2006 Mr. Allen signed a durable power of attorney in favor of Attorney Campbell. The power of attorney allowed Attorney Campbell and/or his paralegal to handle disposition of the personal property and the residence as well as Mr. Allen?s financial affairs. The power of attorney was revised and signed again by Mr. Allen on July 5, 2006 and July 13, 2006.
On July 11, 2006, an appraisal of Mr. Allen?s personal property was conducted. In August 2006, Mr. Allen?s cousin Traci Plummer told Attorney Campbell that, at the direction of Mr. Allen, she had taken some items of Mr. Allen?s personal property for storage and that various belongings of Mr. Allen?s were missing. She refused to make a list of the missing possessions.
On August 6, 2006, Attorney Campbell advised Mr. Allen in writing that he could not be responsible for any lost property if there was no way to verify what property was missing. On August 27, 2006, Attorney Campbell caused the contents remaining in Mr. Allen?s home to be auctioned off pursuant to Mr. Allen?s directions. Attorney Campbell provided Mr. Allen with a copy of the accounting from the sale of the personal property on September 12, 2006.
On September 14, 2006, Mr. Allen communicated to Attorney Campbell that he was discharged. Attorney Campbell notified Mr. Allen in a letter that he would need to seek permission of the Court to withdraw. Campbell then sent a Motion to Withdraw for Mr. Allen?s signature and informed Allen that he was obligated to continue the representation until the Motion to Withdraw was granted.
Based on the facts above, Attorney Andrews B. Campbell engaged in violations of the then-applicable M. Bar R. 3.1(a); 3.6(e)(1)(ii) and 3.6(e)(2)(iii).
CONCLUSION AND SANCTION
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Campbell?s above-outlined failures, his client?s interests were not adequately protected.
The Panel notes that Attorney Campbell has taken responsibility for his misconduct. During this hearing, Attorney Campbell expressed remorse for his serious violations of the Code of Professional Responsibility. Attorney Campbell indicated that a refund of the overlooked Five Hundred Dollars ($500.00) will be remitted to Mr. Allen.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Attorney Campbell agrees, and the evidence supports a finding that he did in fact violate Rules 3.1(a); 3.6(e)(1) and 3.6(e)(2)(iii) of the then-applicable Code of Professional Responsibility. Specifically, the Panel finds that Attorney Campbell:
(2) failed to maintain complete and accurate records of the personal property he and his associate removed from Mr. Allen?s home.
Therefore, the Panel finds that a public reprimand serves the purposes of M. Bar R. 2(a).
The Panel accepts the agreement of the parties, including Attorney Campbell?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Andrews B. Campbell, Esq. which is now hereby issued and imposed pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Parties
Jacqueline L. L. Gomes, Assistant Bar Counsel
William B. Cote, Esq.
For the Grievance Commission
David S. Abramson, Esq., Chair
Ann M. Courtney, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Paul B. Fitzgerald
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Docket No.: SJC-54.1
Issued by: Supreme Judicial Court
Date: April 13, 1979
Respondent: Paul B. Fitzgerald
Bar Number: 002114
Order: Temporary Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Philip E. Chapman, Jr.
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Docket No.: SJC-53.10
Issued by: Supreme Judicial Court
Date: October 3, 1980
Respondent: Philip F. Chapman, Jr.
Bar Number: 002151
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. James H. Dineen
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Docket No.: SJC-53.5
Issued by: Supreme Judicial Court
Date: April 9, 1980
Respondent: James H. Dineen
Bar Number: 001426
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Freddie F. Lee
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Docket No.: SJC-53.6
Issued by: Supreme Judicial Court
Date: May 29, 1980
Respondent: Freddie F. Lee
Bar Number: 002835
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Lawrence P. Mahoney
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Docket No.: SJC 53.13 & 53.14
Issued by: Supreme Judicial Court
Date: November 10, 1980
Respondent: Lawrence P. Mahoney
Bar Number: 001493
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Emmet J. O'Gara
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Docket No.: SJC 53.7
Issued by: Supreme Judicial Court
Date: August 26, 1980
Respondent: Emmet J. O'Gara
Bar Number: 001830
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Philip L. Ingeneri
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Docket No.: BAR-81-57
Issued by: Supreme Judicial Court
Date: November 30, 1981
Respondent: Philip L. Ingeneri
Bar Number: 001443
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Robert W. Reece
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Docket No.: 53-12
Issued by: Supreme Judicial Court
Date: July 31, 1981
Respondent: Robert W. Reece
Bar Number: 001806
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Richard G. Sawyer
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Docket No.: BAR-81-9
Issued by: Supreme Judicial Court
Date: April 6, 1986
Respondent: Richard G. Sawyer
Bar Number: 000820
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Charles F. Washburn
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Docket No.: SJC-53.15
Issued by: Supreme Judicial Court
Date: January 2, 1981
Respondent: Charles F. Washburn
Bar Number: 000613
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Philip S. Bird
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Docket No.: BAR-82-30
Issued by: Supreme Judicial Court
Date: October 18, 1982
Respondent: Philip S. Bird
Bar Number: 001693
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. David Downing
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Docket No.: BAR-81-23
Issued by: Supreme Judicial Court
Date: June 1, 1982
Respondent: David Downing
Bar Number: 001517
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. John Evans Harrington, Jr.
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Docket No.: BAR-82-22
Issued by: Maine Supreme Judicial Court
Date: July 15, 1982
Respondent: John Evans Harrington, Jr.
Bar Number: 001737
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Bertha E. Rideout
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Docket No.: Bar-81-10 & Bar-81-58
Issued by: Supreme Judicial Court
Date: January 7, 1982
Respondent: Bertha E. Rideout
Bar Number: 001831
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Oscar Walker
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Docket No.: BAR-81-59
Issued by: Maine Supreme Judicial Court
Date: February 23, 1982
Respondent: Oscar Walker
Bar Number: 001585
Order: Suspension
Disposition/Conduct:
Opinion and Order
In May of 1979 the Law Court upheld a District Court judgment against Maurice Galen in favor of his former wife. Ireland v. Galen, Me., 401 A.2d 1002 (1979). This bar discipline proceeding arises out of the defendant's representation of Mr. Galen in that case. The Board of Overseers alleges that Oscar Walker, a member of the Bar of this state, (1) neglected his duty to his client in failing to respond to a request for production of documents by Ireland; (2) violated his ethical obligations to his client in failing to reveal a settlement offer to Galen and in advising successive appeals to the Superior Court and the Law Court; and (3) initiated an improper legal action against Bar Counsel and others in retaliation for their actions in this matter. Since this Court is satisfied that the Board has sustained its burden of proving that the defendant did violate his professional responsibilities under M. Bar R. 3, disciplinary sanctions must be imposed herein.1
The procedural history of post-judgment motion proceedings in the Galen divorce case is quite complex. The Law Court opinion in Ireland v. Galen amply describes the District Court judgment which was entered as a sanction against Galen for failing to respond to Ireland's request for production of documents. The records of the District Court and Superior Court are in evidence. There is no need to recite these undisputed details except as appropriate to the discussion of controverted allegations.
In late 1975 Ireland, through Attorney Michael Griffin, relied upon a 1969 divorce judgment which ordered Galen to pay ten dollars per week for child support to demand payment from Galen of $1,355 in arrearage. The demand letter (Plaintiff's Exhibit #1) sought proof of any payment made from Galen to Ireland "so that we can locate the discrepancy." A year later, in October, 1976, Ireland filed and served a post-judgment motion seeking summary enforcement of Galen's support obligation. Galen and his new wife, Eleanor, engaged the professional services of the defendant, Oscar Walker, to represent Galen on Ireland's motion and to initiate a cross-motion for change of custody. Galen acknowledged the existence of some support arrearage, but his estimate was in the vicinity of $800. Walker advised him that he could deduct ten dollars for each week the child visited Galen even though the court order contained no such provision.
The custody issue was ultimately resolved by agreement in March of 1977. Appropriate professional conduct would suggest similar consultation with Griffin and a review of payment records in an attempt to reach agreement on the amount of arrearage. Walker, however, embarked upon a different, and unprofessional, course with regard to Ireland's motion. That course was not in Galen's best interests and, indeed, operated to his detriment. Walker sought to defeat Ireland's motion on the grounds that the return of service indicated that an unattested copy of the motion and court order was served, and that the hearing was scheduled before the time for production of requested documents had expired. The hearing was postponed and new service accomplished. While this procedural maneuvering was taking place, Galen traveled to Bangor with his records of payments in order that they might be inspected as requested. Despite his client's willingness to have opposing counsel inspect the records, Walker failed to offer Griffin an opportunity to inspect them. As a result, Griffin sought and obtained a jugment for $1,715 arrearage as a sanction for Galen's failure to produce.
Once again, on the motion for sanctions, Walker sought to interpose technical and unsuccessful defenses instead of producing the records and attempting to settle the dispute. At all relevant times Galen was willing, indeed anxious, to produce his records. The defendant's client still does not understand why he has never had an opportunity to show them. Throughout the proceedings relating to the production of Galen's financial records Walker persisted in a course of action best described as "stonewalling". Such conduct is not required of an attorney even if requested by the client. Here the client neither knew of nor agreed to such conduct. Moreover, in this case such conduct was directly contrary to the client's interests, and resulted in judgment being rendered against the defendants client.
As the Court records reflect, Walker continued to argue unsuccesfully to the Superior Court and then to the Law Court that the second service of the motion constituted a separate proceeding as to which a new request for production of documents had to be made. Even if correct, such dilatory tactics are hardly commendable. When patently incorrect, as well as damaging to a client's interest,2 they constitute a violation of the standards of car and judgment required of an attorney under M. Bar R. 3.6.
The Board also alleges that Walker knew or should have known the appeals were without merit, that he generated work that resulted in excessive fees, and that he failed to reveal a settlement offer from Ireland that was obviously in Galen's best interest. This Court is satisfied that Walker recognized the lack of merit in the appeals, that notwithstanding this recognition he pursued a course of appeal which generated unneccesary and excessive work and that he failed to reveal a settlement offer from Ireland that was obviously in Galen's best interest to accept.
Prior to the Law Court appeal, Walker resorted to the unusual procedure of asking Galen to sign a lengthy agreement which purports to place all responsibility for an appeal upon the client despite Walker's strong urging not to appeal. (Plaintiff's Exhibit #11 discussed further below.) An Attorney cannot escape the duty to exercise his best professional judgment by agreement with his client. Furthermore, a person of Galen's background could not be expected to understand the confusing and misleading recitals contained in the agreement. In addition, this Court is satisfied that those recitals did not reflect the true state of affairs. Even at the hearing before this Court Walker could not decide whether ultimately he had advised Galen of probable success or probable failure on appeal to the Law Court. The agreement between Walker and his client provides this court not only with evidence that Walker was aware of the lack of merit to the appeals, but also with direct evidence of Walker's attempt to limit any subsequent liability on his part in contravention of M. Bar R. 3.6(b).
Regarding the settlement offer, the testimony of various witnesses is conflicting as to events occurring on June 28, 1978 in the course of settlement negotiations. Galen claims to have produced $1,000 for settlement. Walker claims that offer was refused and that Galen became irate and insisted on the appeal. The Board alleges that the matter could have been settled for $1,000, but that Walker tricked Galen into paying for an appeal instead.2 Having in mind the Board's burden of proof, this Court is not satisfied that a settlement agreement could have been achieved on June 28, 1978. Given the original $800 offer and a counter-demand of $1,000 plus resolution of visitation disputes, it is likely that no agreement could be reached on June 28, 1978. Walker, however, was derelict when he subsequently failed to pursue any further settlement negotiations. Indeed, by a letter from Griffin, dated August 29, 1978, Ireland abandoned all side issues and agreed to accept $1,000 in settlement. (Plaintiff's Exhibit #17). Walker failed to communicate this offer to Galen.
The five-page agreement signed by Galen on June 28, 1978 (Plaintiff's Exhibit #11) is challenged by Galen. As indicated above, the document appears to be a transparent attempt by Walker to avoid responsibility for unprofessional conduct. See M. Bar R. 3.6(b). Recognizing the seriousness of Galen's challenge this Court is not persuaded that the document was prepared after Galen signed a blank page (as he contends) or that three pages were added after its execution (as Mr. Galen contends). It is more likely that Mr. and Mrs. Galen simply did not recognize the significance of a document prepared by their own lawyer. The authenticity of the agreement need not be finally resolved in this proceeding, however, because this Court is satisfied that Walker did generate unnecessary work and fail to communicate the advantageous August 29 settlement offer in violation of M. Bar R. 3.2 and 3.3
After the adverse decision of the Law Court, Galen obtained a new attorney, Andrew Mead. In December of 1979 Mead made a demand upon Walker to compensate Galen for the loss he had sustained. Walker's response was to complain about the demand to the Board which resulted in a reprimand to Walker. Thereafter, when the Board commenced an investigation of the Galen case Walker caused an action for defamation to be filed against Galen, Mead, Bar Counsel and, later, attempted to include the Chairman of the Grievance Commission as a party defendant. This Court is satisfied that Walker's action violates M. Bar R. 3.7 in that the suit is patently without merit and clearly intends to harras or intimidate those who complain against him or are charged with the investigation of such complaints.
While it is true that Walker's lawsuit has not been finally resolved as to all defendants, that fact does not preclude this Court's finding of a violation. Similarly, the fact that a pending third-party action in the District Court is unresolved does not affect this Court's evaluation of the evidence. The final disposition of those matters is not essential to this adjudication. Although the pretrial order herein specifically granted leave to submit evidence of the result of District Court proceedings prior to decision herein, there is no necessity to leave the record open for that purpose. M. Bar R. 7(h)(2).3
This Court recognizes fully that responsibility for the determination of appropriate disciplinary action is the Court's alone. Sanctions must not be imposed as punishment, but rather this Court must act for the "protection of the public and the Courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties." M. Bar R. 2(a). The recommendation of the Board for a six month suspension is not binding upon this Court and does not establish any limitation upon the judgment herein.
Perhaps the most disturbing aspect of this case is the continued refusal of Walker to recognize his responsibility for the plight of his former client. That refusal suggests that he will in the future be "unable to discharge properly [his] professional duties." Disbarment, however, would be too severe a sanction for Walker's conduct. He has practiced law for 46 years without record before this Court of prior disciplinary action other than the reprimand which arose out of the Galen case. There has been no allegation of criminal misconduct. Disbarment, as the ultimate professional sanction, is rejected in this instance.
M. Bar R. 7(e)(6)(D) does not expressly authorize a judgment to be conditional in whole or in part. The Maine Bar Rules, however, are merely an aid to this Court in the exercise of its constitutional responsibilities. See Board of Overseers v. Lee, Me., 422 A.2d 998 (1980). This Court has the authority to frame its ultimate judgment in such terms as will best accomplish the purpose of those proceedings. Cf. Board of Oversers v. Ingeneri, Me., A.2d (1982) (period of suspension conditioned upon continued medical treatment).
Because this Court considers the conduct of the defendant as well as his continued intransigence to be a serious violation of the Maine Bar Rules, a suspension of one year is warranted. Because this Court seeks to require the defendant to discharge properly his professional duties without undue personal impact, a conditional reduction of that period of suspension appears appropriate. The conditions of such a reduction are designed to accomplish the aforementioned purposes of disciplinary proceedings.
Accordingly, it is ORDERED AND ADJUDGED that defendant Oscar Walker be, and he is hereby suspended from the practice of law for one year in accordance with M. Bar R. 7(e)(6)(D); and
It is FURTHER ORDERED that such suspension be reduced to a period of three months upon the following conditions:
(1) That Oscar Walker comply with the Maine Bar Rules in all future conduct, including without limitation the requirements of M. Bar R. 7(n);
(2) That Oscar Walker within 60 days of the date hereof make partial resitution to Maurice Galen in the amount of $3000.00 (such payment to be credited toward any liability to Maurice Galen, but not to constitute full settlement thereof and further such payment shall not be used to prejudice Maurice Galen's pursuit of any other legal remedy);
(3) That without the necessity of formal proceedings before the Board, Oscar Walker may be suspended for the balance of nine months, or any portion thereof, on motion of Bar Counsel for violation of condition (1) or (2) at any time within two years of the date hereof;
(4) That the Court may order extension of said two-year period for cause shown.
It is FURTHER ORDERED that both parties shall have an opportunity to seek modification or clarification of the conditions attached to the reduction of suspension provided herein by motion filed within 15 days of the date hereof and that for that purpose this judgment shall not become final until 30 days from the date hereof. The period provided under M. Bar R. 7(n)(1) shall commence on that date 30 days hence.
For the Court
David G. Roberts, Associate Justice - Maine Supreme Judicial Court
FOOTNOTES
1 The term "defendant" is consistent with the civil rules generally, although the bar rules use the term "respondent." See M. Bar R. 7(e)(6).
2 Galen has expended in legal fees to Walker more than the amount claimed in Ireland's motion and remains liable for the District Court judgment plus interest and additional costs.
2 Although Galen paid Walker a total of $1,875, this Court is unable to assess the appropriateness of the fees in relation to work actually performed. Walker's estimates of time (Defendant's Exhibit #41) are unpersuasive as his testimony relating to their preparation, but the Board has not established that the fees are excessive except to the extent that work was unnecessary, improper and caused by Walker's fault. In this connection the Court notes that Walker justifies his fees in part upon a charge of $65 each for preparation and service of vexation warrants upon several people pursuant to 17 M.R.S.A. ? 3703. Section 3703 was repealed by P.L. 1975 ch. 499 ? 20 which ultimately became effective May 1, 1976.
3 The order was intended to permit submission of the evidence after hearing if available prior to decision herein, but not to require delay of this decision to await results in the District Court.
Board of Overseers of the Bar v. Walter E. Brown, Jr.
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Docket No.: BAR-83-44
Issued by: Supreme Judicial Court
Date: September 22, 1983
Respondent: Walter E. Brown, Jr.
Bar Number: 001960
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. James H. Dineen
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Docket No.: BAR-83-46
Issued by: Supreme Judicial Court
Date: December 29, 1983
Respondent: James H. Dineen
Bar Number: 001426
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Joanne M. Davis Edwards
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Docket No.: BAR-83-49
Issued by: Supreme Judicial Court
Date: December 14, 1983
Respondent: Joanne M. Davis Edwards
Bar Number: 001742
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Stephen T. Jeffco
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Docket No.: BAR-82-31
Issued by: Supreme Judicial Court
Date: March 1, 1983
Respondent: Stephen T. Jeffco
Bar Number: 000290
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Gunnar Myrbeck
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Docket No.: BAR-83-48
Issued by: Supreme Judicial Court
Date: November 29, 1983
Respondent: Gunnar Myrbeck
Bar Number: 001632
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. James D. Carr
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Docket No.: BAR 84-17
Issued by: Supreme Judicial Court
Date: April 27, 1984
Respondent: James D. Carr
Bar Number: 001744
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Torrey A. Sylvester
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Docket No.: BAR 83-42
Issued by: Supreme Judicial Court
Date: January 11, 1984
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Oscar Walker
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Docket No.: BAR 81-59
Issued by: Supreme Judicial Court
Date: March 6, 1984
Respondent: Oscar Walker
Bar Number: 001585
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. David M. Hirshon, Esq.
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Docket No.: 08-208
Issued by: Panel C of the Grievance Commission
Date: May 4, 2010
Respondent: David M. Hirshon, Esq.
Bar Number: 001036
Order: Reprimand
Disposition/Conduct: Scope and Effect; Acts as a Public Official; Conflict of Interest: Succesive Representation, Interests of Former Clients
REPORT OF FINDINGS OF PANEL C OF THE GRIEVANCE COMMISSION
On April 12, 2010, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary heairng, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, David M. Hirshon, Esq. At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Respondent was present and represented by Peter J. DeTroy, Esq.
The Panel heard testimony from Attorney Hirshon; the complainant, John Noel; Neil S. Shankman, Esq.; and Michelle Noel. Board Exhibits 1-9, 11-15, and 17-28, and Respondent's Exhibits 1-4 and 6-14 were admitted in evidence without objection. Respondent's Exhibits 15 and 16 were admitted subject to Bar counsel's motion in limine to redact certain portions, which the Panel, having reviewed those exhibits, now overrules.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules.1 In late 2004 or early 2005, he advised John and Michelle Noel with respect to potential guardianship arrangments for their daughter in the event of their deaths. In 2005 and 2006, he represented Mr. Noel in a post-divorce motion to modify a child support order arising out of Mr. Noel's previous marriage.
In early 2007, Respondent learned that John and Michelle Noel were separated and that Ms. Noel had filed for a divorce, and shortly thereafter, he commenced an intimate relationship with Ms. Noel. Ms. Noel was representing herself pro se in her divorce, and was represented by one or more attorneys from Pine Tree Legal Services in connections with a Protection from Abuse matter related to the divorce.
A mediation in the divorce matter was scheduled for May 29, 2007. On May 18, Respondent filed a "Limited Entry of Appearance" with the District Court in the divorce matter. The filing stated, in its entirety: "The clerk will please enter my appearance on behalf of the Plaintiff with regard to the parties' mediation." Respondent testified that he intended to enter into a limited representation of Ms. Noel solely for purposes of the mediation, as permitted by M. Bar R. 3.4(i), but he conceded that he did not obtain Ms. Noel's informed written consent to a limited representation, as required by that rule, and Ms. Noel testified that she did not have an understanding as to Respondent's limited representation.
Respondent testified that Ms. Noel had informed him that she believed the substantive issues related to the divorce would not be at issue in the mediation, that all of the financial and child custody issues were already resolved, and that Ms. Noel was requesting his presence at the mediation primarily for personal support. Accordingly, prior to entering his appearance, he analyzed the potential conflict due to his former representation of Mr. Noel, and concluded that his representation of Ms. Noel at the mediation was permissable under M. Bar R. 3.4(d)(1)(i), in that the new representation would not be substantially related to the subject matter of his former representation, and that it would not involved the use of any confidential information obtained through such former representation. Respondent did not consult with anyone else in the course of reaching that conclusion. As discussed in more detail below, Respondent's analysis of the successive representation issue occurred just prior to the Law Court's decision in Hurley v. Hurley, 2007 ME 65 (May 22, 2007), clarifying the standard for disqualification of an attorney under M. Bar R. 3.4(d)(1)(i).
At the mediation, Mr. Noel and his attorney, Mr. Shankman, objected to Respondent's involvement and raised the conflict issue. After a delay of approximately two weeks due to his efforts to secure other counsel for Ms. Noel, Respondent withdrew from his representation of Ms. Noel in the divorce matter.2
Mr. Noel alleged that despite Respondent's withdrawal, Respondent continued to provide legal counsel to Ms. Noel. After hearing all of the testimony and evaluating all of the evidence in this matter, however, the Panel finds no credible evidence to support that assertion. Respondent admittedly provided Ms. Noel with the name of another client, whom Ms. Noel interviewed and engaged to provide counseling for her daughter, and also furnished Ms. Noel with certain financial support during the course of their relationship. The Panel concludes that those actions did not implicate the Maine Bar Rules.
After considering the evidence presented at the hearing, the Panel concludes that Respondent engaged in conduct unworthy of an attorney in violation of M. Bar R. 3.1. Respondent's specific violations of the Code of Professional REsponsibility in this matter included: (i) engaging in conduct prejudicial to the administration of justice, in violation of M. BAr R. 3.2(f)(4); (ii) commencing represendation adverse to a former client where the subject matter was substantially related to the subject matter of the former representation and/or might have involved the use of confidential information obtained through such former representation, in violation of M. Bar R. 3.4(d)(1)(i); and (iii) entering a limited appearance on behalf of a client without obtaining the client's written informed consent, in violation of M. Bar R. 3.4(i).3 Accordingly, Respondent has engaged in misconduct that is subject to sanction under the Maine Bar Rules.
With respect to M. Bar R. 3.4(d)(1)(i),4 notwithstanding Respondent's testimony that he conducted a good-faith analysis of the successive representation issue, the Panel concludes that Respondent reasonably should have understood that the successive representation rule precluded him from even a limited representation of Ms. Noel in her divorce from Mr. Noel.
Further, the Law Court issues its decision in Hurley v. Hurley on May 22, 2007, shortly after Respondent submitted his "Limited Entry of Appearance" and one week before the scheduled mediation. The Panel concludes that the facts of Hurley are sufficiently similar to those of this case that, even if a reasonable attorney could have concluded prior to that decision that the successive representation of Mr. and Ms. Noel was permissable, Respondent was effectively on notice as of the date of the Hurley decision that it was not. In Hurley, the Law Court held that information gained by a lawyer in a former representation about how the former client handles the stress of litigation is confidential, and precludes a successive representation adverse to the former client. Hurley, 2007 ME 65, ?? 14-17. In view of Hurley, Respondent reasonably should have known, one week before the mediation was scheduled to occur, that he was required to withdraw from even a limited representation of Ms. Noel in her divorce action against Mr. Noel.
Respondent's violation of M. Bar R. 3.4(i) is apparent, in that he has conceded that although he intended a limited representation of Ms. Noel, he failed to obtain her written, informed consent for that limited representation. Respondent appears to have assumed that his limited representation excused him from his duty to prepare for the mediation with reasonable skill, care, and judgment, which was not the case.
In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent's actions in this matter violated duties owed to the legal system, to the profession, and to his former client.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
For the reasons discussed above, the Panel concludes that Respondent's misconduct was negligent, in that a reasonable attorney should have concluded that the limited representation of Ms. Noel was impermissible. Further, having entered into the representation, a reasonable attorney would have prepared for the mediation using appropriate care, skill, and judgment. It did not appear to the Panel, however, that Respondent intentionally or knowingly violated the Bar Rules.
(iii) the amount of actual or potential injury caused by the attorney's misconduct;
The Panel concludes that Respondent's misconduct in this matter caused some delay and confusion in the Noels' divorce and related proceedings, but that it did not materially affect the outcome. Respondent's presence at the mediation clearly caused Mr. Noel some consternation, but the Panel was not presented with any evidence that Respondent imparted to Ms. Noel, or to her successor counsel, any confidential information that he may have gained in the course of his former representation of Mr. Noel. Further, the Panel concludes there is little likelihood that Respondent will repeat his misconduct.
(iv) the existence of any aggravating or mitigating factors.
As an aggravating factor, it appears to the Panel that Respondent allowed his personal relationship with Ms. Noel to interfere with his professional judgment, both in failing to enter into the limited representation with her written, informed consent, and in attending the mediation with the intention of providing personal support rather than acting as a legal advocate on her behalf. Respondent apparently relied in good faith upon Ms. Noel's assurance that the financial and child custody issues in the divorce were sufficiently resolved that he would not be called upon to address them in the mediation. However, this reliance was inappropriate, given his role as her attorney. As a mitigating factor, the Panel notes that Respondent did analyze his ethical obligations, and once he was advised that the successive representation was impermissable, he secured successor counsel for Ms. Noel and withdrew as her attorney.
In view of the foregoing factors, and in accordance with M. Bar. R. 7.1(e)(3)(C), the Panel concludes that an appropriate sanction in this matter would be the issuance of a public reprimand, and Respondent is hereby so reprimanded.
For the Grievance Commission
Benjamin P. Townsend, Esq., Acting Chair
James A. McKenna III, Esq.
Christine Holden, Ph.D.
FOOTNOTES
1 All of the conduct at issue in this matter occurred prior to the abrogation of the former Maine Code of Professional Responsibility (former M. Bar R. 3), and the replacement of the Code by the Maine Rules of Professional Conduct, effective August 1, 2009. The Panel analyzes Respondent's conduct in this matter under the provisions of the now-abrogated Code of Professional Responsibility.
2 Respondent's involvement in collateral matters related to the divorce continued, primarily due to numerous complaints and allegations filed against him by Mr. Noel, but none of those matters appears materials to the issues before the Panel.
3 Unlike the now-abrogated M. Bar R. 3.4(i), Rule 1.2(c) of the Rules of Professional Conduct no longer requires that the client's informed consent to a limited representation be memorialized in writing, although that remains the better practice.
4 The requirements of current Rule 1.9 are identical in substance to those of the now-abrogated M. Bar R. 3.4(d)(1)(i)
Board of Overseers of the Bar v. Bruce S. Billings
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Docket No.: BAR 88-3
Issued by: Supreme Judicial Court
Date: June 3, 1988
Respondent: Bruce S. Billings
Bar Number: 001997
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR-88-7
Issued by: Supreme Judicial Court
Date: April 7, 1988
Respondent: William B. Cote
Bar Number: 002892
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. James Martin Dineen
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Docket No.: BAR-87-13; BAR-88-8
Issued by: Supreme Judicial Court
Date: August 4, 1988
Respondent: James Martin Dineen
Bar Number: 001653
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Donald H. Goodridge
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Docket No.: BAR-88-1
Issued by: Supreme Judicial Court
Date: June 29, 1988
Respondent: Donald H. Goodridge
Bar Number: 000980
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. David F. Gould
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Docket No.: BAR-87-23
Issued by: Supreme Judicial Court
Date: March 8, 1988
Respondent: David F. Gould
Bar Number: 001779
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Ward T. Hanscom
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Docket No.: BAR-88-5
Issued by: Supreme Judicial Court
Date: May 26, 1988
Respondent: Ward T. Hanscom
Bar Number: 001630
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Stephen T. Jeffco
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Docket No.: BAR-88-12
Issued by: Supreme Judicial Court
Date: October 19, 1988
Respondent: Stephen T. Jeffco
Bar Number: 000290
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Neil D. MacKerron
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Docket No.: Bar-88-10; Bar 88-10A
Issued by: Supreme Judicial Court
Date: August 16, 1988
Respondent: Neil D. MacKerron
Bar Number: 001090
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Brian R. Olson
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Docket No.: BAR-87-19
Issued by: Supreme Judicial Court
Date: January 11, 1988
Respondent: Brian R. Olson
Bar Number: 000271
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Charles B. Rodway, Jr.
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Docket No.: BAR-87-12
Issued by: Supreme Judicial Court
Date: March 4, 1988
Respondent: Charles B. Rodway, Jr.
Bar Number: 000757
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Calvin B. Sewall
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Docket No.: BAR-88-13
Issued by: Supreme Judicial Court
Date: October 19, 1988
Respondent: Calvin B. Sewall
Bar Number: 000274
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Udell Bramson
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Docket No.: Bar-89-7
Issued by: Supreme Judicial Court
Date: July 6, 1989
Respondent: Udell Bramson
Bar Number: 000635
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Jura A. Burdinik
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Docket No.: BAR-88-19
Issued by: Supreme Judicial Court
Date: January 13, 1989
Respondent: Jura A. Burdinik
Bar Number: 002022
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. James J. Fitzpatrick
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Docket No.: Bar-88-9
Issued by: Supreme Judicial Court
Date: November 22, 1989
Respondent: James J. Fitzpatrick
Bar Number: 000715
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. George S. Hutchins
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Docket No.: BAR-89-4
Issued by: Supreme Judicial Court
Date: July 28, 1989
Respondent: George S. Hutchins
Bar Number: 001845
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel J. Murphy
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Docket No.: BAR-88-4
Issued by: Supreme Judicial Court
Date: July 14, 1989
Respondent: Daniel J. Murphy
Bar Number: 001900
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Herbert C. Nisbet
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Docket No.: BAR-88-18
Issued by: Supreme Judicial Court
Date: June 29, 1989
Respondent: Herbert C. Nisbet
Bar Number: 001931
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Harvey J. Putterbaugh
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Docket No.: 89-K-148
Issued by: Supreme Judicial Court
Date: October 30, 1989
Respondent: Harvey J. Putterbaugh
Bar Number: 002898
Order: Temporary Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E. Audet
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Docket No.: Bar-90-5
Issued by: Supreme Judicial Court
Date: April 11, 1990
Respondent: Thomas E. Audet
Bar Number: 002084
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Theodore Barris
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Docket No.: GCF 86-102
Issued by: Grievance Commission
Date: March 12, 1990
Respondent: Theodore Barris
Bar Number: 001103
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Frank G. Chapman
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Docket No.: GCF 89-K-14
Issued by: Grievance Commission
Date: July 18, 1990
Respondent: Frank G. Chapman
Bar Number: 000385
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Julio DeSanctis, III
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Docket No.: GCF 88-K-94
Issued by: Grievance Commission
Date: April 20, 1990
Respondent: Julio V. DeSanctis
Bar Number: 001751
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. James J. Fitzpatrick
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Docket No.: Bar-89-9; Bar-89-11; Bar-89-13
Issued by: Supreme Judicial Court
Date: November 19, 1990
Respondent: James J. Fitzpatrick
Bar Number: 000715
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Charles G. Williams III
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Docket No.: BAR-09-13; Related Docket No. BAR-02-5
Issued by: Maine Supreme Judicial Court
Date: May 10, 2010
Respondent: Charles G. Williams III
Bar Number: 008827
Order: Reinstatement Denied
Disposition/Conduct:
ORDER (Reinstatement Petition)
This matter is before the Court to consider the petition for reinstatement filed pursuant to M. Bar. R. 7.3(j) by a disbarred attorney, Charles G. Williams III, bar number 8827. The petition for reinstatement was filed on or about September 30, 2009. In accordance with the rules, the matter was promptly referred to Panel B of the Grievance Commission for a hearing.
Accommodating Williams' request for expeditious consideration, the Grievance Panel held a hearing on November 19, 2009. As a further accommodation to Williams, he and his supporting witnesses were permitted to appear and testify by telephone from Georgia where Williams was residing at the time. See M.R. Civ. P. 43(a).
On November 25, 2009, the Grievance Panel issued a report recommending that Williams petition for reinstatement be denied. The Grievance Panel report was referred for consideration to the Board of Overseers of the Bar pursuant to M. Bar R. 7.3(j)(6).
Prior to the Board of Overseers vote on the reinstatement issue, Williams filed with this Court an objection and motion to strike the Grievance Panel report and a "demand" that the matter be heard by the Court with or without a hearing on the merits pursuant to M. Bar R. 7.3(j)(6). The Court dismissed the motion as premature, pending consideration of the petition by the Board of Overseers.
On January 27, 2010, the Board of Overseers voted unanimously to support the Grievance Panel report and recommend to this Court that the petition for reinstatement submitted by Williams be denied.
The matter is properly before the Court for consideration now that the Board of Overseers has reviewed the Grievance Panel report and made its recommendation to the Court. There is a significant record before the Court arising from (i) the November 19 Grievance Panel hearing,1 (ii) the filings related to Williams petition for reinstatement, and (iii) the record developed in BAR-02-5 incident to Williams disbarment.2 Therefore, the Court elected to consider the matter further based on that record and without taking additional evidence. Such consideration is authorized by M. Bar R. 7.3(j)(6). Neither party objected to the Court considering the matter on the available record. Accordingly, the Court issued an order on February 8, 2010, setting a briefing schedule for the parties. That briefing schedule was subsequently extended at Williams request. All of the briefs having now been filed, the matter is before the Court for decision.
The record discloses, without much dispute as to fact, the following:
-On three separate occasions, Williams had forced one former client to engage in unwanted sexual acts.
On many occasions, Williams had missed scheduled appointments with clients.
On several occasions, Williams had failed to appear for scheduled court proceedings.
On several occasions, Williams failed to file required court documents or filed such documents very late.
The problems with the courts occurred both in state courts and in the United States District Courts in Portland and Bangor.
Williams regularly failed to make necessary communications with and respond to letters, notices and telephone messages from clients, opposing counsel, and the courts. One of the many complaints of such misconduct included evidence of Williams refusing to respond appropriately, over many months, to many polite letters from a client seeking information about prosecution of the clients racial profiling complaint.
Williams regularly failed to respond to notices, inquiries and requests for responses to complaints from the Board of Overseers, from bar counsel, and from the Fee Arbitration Commission.
Williams charged excessive fees.
On several occasions, Williams disclosed to third parties confidential information about clients without authorization.
-Williams failed to pay businesses serving his practice for services rendered, or businesses had checks returned for insufficient funds.
Williams had taken money from clients as retainers or advance payments and then failed to perform promised work. The Court also found that the Lawyers Fund for Client Protection had paid claims against Williams by former clients involving money he had taken for work not performed totaling $24,275.89.
Have you surrendered any professional certificate/credential/license/permit or had one denied, revoked or suspended or is any investigation or action now pending against you with any regulatory agency, including the professional standards commission? (Each application requires that you report any revocation, denial or suspension, including nonpayment of student loan suspensions.)
Despite the then-recent disbarment order and the then-pending appeal, Williams answered the question in the negative. Williams untruthful answers to the question were not discovered at the time. 6 He was issued a teaching certificate and obtained teaching positions at several high schools over the next three years.
Reporting in September 2009 his views of his brief, two-year experience as a trial attorney litigating in Maine, Williams stated: [f]rom this one case, my practice grew in renown. At its peak, whenever a major civil rights or criminal case drew the attention of the Maine media, it was likely that the case would contact me for advice and representation. Wherever I wentin whatever courthouse I arguedI was followed by crowds, cameras and enthusiasts. At the age 27, I argued to packed courthouses from Wells to Dover-Foxcroft and was the focus of the civil rights movement in Maine.7
Williams further stated: [d]uring my brief practice in Maine, many of the most controversial and famous cases to enter the court system in your state were filed and argued by me.
The record in BAR-02-5 suggests otherwise. It includes evidence that Williams complained that he was not being treated fairly by the staff at the Lewiston District Court who, he alleged, were not assigning him enough court appointed cases to support his practice. The record also includes evidence that Williams practice was experiencing significant financial difficulties that would be unlikely to be experienced by a practice as busy and successful as Williams asserts his practice was. Further, Williams response to dozens of allegations that he failed to timely meet or communicate with clients, file court documents, or respond to complaints made no mention of any heavy workload, or the press of other legal business, only extenuating personal and legal reasons to excuse or justify his failures to act.
As I mentioned in the personal statement, one of the biggest problems that I have of the problems that I articulated which caused the misconduct was, frankly, arrogance. When I first started practice, I started very humbly with one client and one bus ticket. And I met that client in the Cleaves Law Library in Portland. And from that one client, I was able to build a practice, or so I thought.
The problem with building a practice by trying to garner notoriety through the press, through trying to pick fights, frankly, where conflict really wasnt existing is you start to believe your own press clippings, to put it mildly. When you see your face in the Portland Press Herald as a second coming of, say, Thurgood Marshall, you start to believe it if you dont have a sense of maturity and if you dont have a sense of being grounded. I didnt have either of those.
Many practitioners in your state will tell you especially in Portland and in Lewiston will tell you that although I was a gifted young attorney, I was extremely headstrong and inexperienced. That translated into me, frankly, thinking I could do no wrong or that whatever I did was perfectly justified because, after all, I was a civil rights attorney, I was a good guy. By definition, anyone I encountered who happened to be Caucasian and on the other side of the table must, by definition, be someone who is in a league with Bull Conner.
Not to mention the fact that when you build yourself up as someone who professes to be a champion of civil rights and minority causes, what I have seen with other persons with that title is that they tend they tend to have a very inflated sense of self, they tend to make many of the same mistakes that I made. The only difference is they have yet to admit them.
Q Do you now admit them?
A Yes I do.
With this case history and the recommendations from the Grievance Panel and the Board of Overseers of the Bar, the Court must address the merits of Williams petition for reinstatement. Williams and bar counsel spend some time in their briefs discussing the appropriate standard of review for the Court to apply to the determinations already made by the Grievance Panel and the Board of Overseers of the Bar. However, as both the Grievance Panel and the Board of Overseers of the Bar recognized, their recommendations are just that, recommendations. The ultimate responsibility to decide a petition for reinstatement by a disbarred attorney is the Courts. The Grievance Panel and the Board of Overseers of the Bar are the agents delegated by the Court to review these matters, develop a record, and make recommendations, but the ultimate decision on these matters must be made by the Court de novo, not as a matter of deferential review of recommendations forwarded to it.
As is appropriate and as is accepted by Williams and the Board, the Court is considering this matter without hearing additional evidence. M. Bar R. 7.3(j)(6). Neither party has suggested any other evidence that should be developed beyond that which is already before the Court. The parameters for decision-making on the petition for reinstatement following disbarment are established by M. Bar R. 7.3(j)(5). That rule provides, in pertinent part:
On any petition referred for hearing, the Grievance Commission shall promptly and on reasonable notice (including reasonable notice to the Attorney General, the Maine State Bar Association and appropriate local bar association and District Attorneys) hear the petitioner who shall have the burden of presenting clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State. The petitioner shall also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioners meeting that burden include evidence that:
(A) The petitioner has fully complied with the terms of all prior disciplinary orders;
(B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;
(C) The petitioner recognizes the wrongfulness and seriousness of the misconduct;
(D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;
(E) The petitioner has the requisite honesty and integrity to practice law;
(F) The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (1) no more than one half of the credit hours are earned through in-office courses, self-study, or a combination thereof; and (2) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility.
The Court will proceed to consider the petition for reinstatement in accordance with the factors as listed in subparagraphs A-F of the rule. However, these factors are not the exclusive factors that the Court may consider in ruling on a petition for reinstatement of a disbarred attorney and in determining whether it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. The Court may consider any evidence in the record that may inform that decision.
Looking at the listed factors, it appears established, to the clear and convincing evidence standard, that:
A. Williams has fully complied with the terms of the disbarment order which specified that, prior to consideration of reinstatement, he should repay the Lawyers Fund for Client Protection for the funds it paid to cover losses of former clients and pay the Board of Overseers of the Bar for its expenses related to the disbarment proceeding. Those funds were apparently repaid during the course of the proceedings before the Grievance Panel;
B. There is no evidence that Williams either engaged or attempted to engage in the unauthorized practice of law since his disbarment; and
F. It appears that Williams has met the continuing legal education prerequisites for reinstatement, although the documentation indicating that this prerequisite had been completed was not filed until after the decision by the Grievance Panel.
Williams has failed to prove the other three listed factors to the clear and convincing evidence standard. Specifically:
C. Beyond a generalized statement that he recognizes the wrongfulness of the conduct that led to his disbarment, Williams does not appear to truly accept that his conduct was seriously wrong and, perhaps of greater concern, he does not appear to recognize and address the conduct neglect, financial impropriety, and abuse of clients and their cases - that was the cause of his disbarment.
In his personal statement and in his testimony before the Grievance Panel, Williams presents himself as seeking to practice in Maine as a modern day civil rights crusader, serving his people in a jurisdiction which was devoid of any legal civil rights architecture or sophistication and giving the state a needed hero. While he claims to acknowledge the error of his ways, Williams personal statement and testimony portray the ethical violations that led to his disbarment as caused by arrogance, immaturity, selfishness and overzealousness in the cause of advancement of civil rights in a jurisdiction hostile to his advocacy. He appears to consider himself as akin to the civil rights attorneys litigating in the South a generation or two ago who were often subject to threats of discipline, disbarment, or worse because of their zeal and their success.
Williams view of himself and the reasons for his disbarment might be understandable, even if incorrect, had he been disciplined for overzealousness, arrogance, incivility, or disrespect toward clients, the bar or the courts. But Williams was disciplined primarily for abuse, financial impropriety and neglect of clients. The catch words Williams uses to characterize his problems do not explain this abuse, financial impropriety and neglect, and Williams does not appear to acknowledge this as a problem.
The record in BAR-02-5 demonstrates that when Williams was unavailable for clients, it was not because he was trying a high visibility case in Dover Foxcroft or doing interviews for the evening news, but because he was nowhere to be found when his clients needed him. Repeated sexual abuse of a client, missing many court deadlines, and neglect of many cases, including that of the gentleman who wanted to pursue a racial profiling action are not the practice of an attorney who professes to be a champion of civil rights and minority causes. In sum, Williams fixation on his self image as the focus of the civil rights movement in Maine, has led him to loose sight of what misconduct actually caused his disbarment. Williams has not proven to the clear and convincing evidence standard that he recognizes the wrongfulness and seriousness of the conduct that caused his disbarment.
D. Since his disbarment, Williams has engaged in professional misconduct by making an untruthful statement on his applications for teacher certification in Georgia. This statement relates to his professional qualifications to be a lawyer because it attempted to hide the attorney disciplinary action taken against him and was a statement of untruth in an application for certification for a professional position. Thus, Williams has failed to demonstrate that he has not engaged in professional misconduct since his disbarment. The evidence reflected by a final judgment of the courts of the State of Georgia is to the contrary.
E. Williams has also not proven to the clear and convincing evidence standard that he has the requisite honesty and integrity to be reinstated to the practice of law. His extraordinarily expansive statements in his testimony and personal statement suggest that he views himself as a larger-than-life figure, called to practice in Maine to lead a civil rights effort that before his coming had been afflicted by disinterest and a faulty structure of laws and court processes. Such a perception is far removed from the reality of his brief practice in Maine which included court dates and deadlines missed, clients slighted, defrauded, and abused, and cases and a practice neglected. Anyone with a perception of himself and of his importance that is so far removed from reality will likely not pursue practice with the requisite honesty and integrity when understanding and adhering to ethical standards conflicts with Williams unrealistic self-image of who he is and should be in life and in law.
Williams assessment of himself as a hero called to a state devoid of any legal civil rights architecture or sophistication denigrates the hard and dedicated work of many individuals and families, African-Americans and others, over generations as lawyers, legislators, and leaders of state and local government, dedicated to promoting in Maine a structure of laws and ethics in which civil rights and human rights are protected and respected as in the best interest of all Maine citizens. That he would so denigrate the hard work and sacrifice of those who have gone before him to call himself the focus of the civil rights movement in Maine after his brief tenure in practice suggests that he would not respect and perhaps not even understand his ethical obligations should he perceive them to conflict with his self interest or his self image.
In sum, because Williams does not honestly and sincerely recognize the wrongfulness and the seriousness of the misconduct that led to his disbarment, because he has committed professional misconduct since his disbarment, and because his perception of himself as an individual and a lawyer is likely to cause further lapses in honesty and integrity when serving his self-interest and self-image may conflict with his ethical obligations to his clients and to society, the Court determines that Charles G. Williams III has failed to prove, by clear and convincing evidence, that his reinstatement will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest.
Therefore the Court ORDERS:
The petition of Charles G. Williams III for reinstatement as a member of the bar to practice law in the State of Maine is denied.
FOR THE COURT
Donald G. Alexander, Associate Justice Maine Supreme Judicial Court
1 The transcript of the Grievance Panel hearing includes references to a document that may be described as a G-7 Application. The record before this Court does not include such a document, however, from the references to that document in the hearing transcript, it does not appear that review of that document by the Court is required. Neither the Grievance Panel decision nor the briefs of the parties to this Court mentioned such a document.
2 The record of BAR-02-5 includes extensive documentation, including filings, exhibits, and complaints, plus docket entries and a hearing log listing the witnesses presented and exhibits offered at the disbarment hearing. However, although the hearing was recorded, there is no transcript of the hearing that led to the disbarment order.
3 Williams testimony at the Grievance Panel hearing and the record of BAR-02-5, establish that Williams was fully aware of the hearing date and the purpose of the hearing and elected not to appear. Explanations offered by Williams for his failure to appear included an alleged lack of funds to travel from Massachusetts to Maine for the hearing and dissatisfaction with various pre-hearing rulings on discovery and process issues.
4 Williams personal statement in support of reinstatement and his testimony presented during the Grievance Panel hearing offered general explanations, arrogance, etc. (his word, not the Courts) for some of the conduct leading to his disbarment. While the generalities Williams offered in support of reinstatement may provide some explanation for conduct that may have appeared disrespectful, selfish, or uncivil, those generalities provide no excuse or justification for Williams conduct that was neglectful of his obligations toward his clients, the bar, and the courts. It is this unexplained neglect of his obligations, financial improprieties, and the repeated sexual abuse of one client that were the primary causes of his disbarment.
5 In his testimony before the Grievance Panel, Williams admitted he did not file a brief to support his appeal. He suggested that his position was explained by a motion to dismiss for lack of subject matter jurisdiction that he had filed.
6 The record suggests that Williams answered that same question with the same answer on two separate applications
7 There is no courthouse or court facility in Wells.
8 The only discussion of bias in the record of BAR-02-5 is in Williams own allegations that adverse rulings by the Justice presiding in BAR-02-5 reflected bias against him. There is no evidence of actual bias, or of communications by any judge or justice to congratulate Board members for whatever the Board may have done.
9 Williams Maine attorney, who filed the reinstatement petition, withdrew from representation of Williams by letter dated December 10, 2009.
Board of Overseers of the Bar v. David F. Gould
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Docket No.: GCF 88-K-133
Issued by: Grievance Commission
Date: June 13, 1990
Respondent: David F. Gould
Bar Number: 001779
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Dennis Hagemann
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Docket No.: GCF# 87-S-161
Issued by: Grievance Commission
Date: September 14, 1990
Respondent: Dennis Hagemann
Bar Number: 002839
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. James S. Horton
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Docket No.: BAR-88-15; BAR-89-12; BAR-90-12
Issued by: Supreme Judicial Court
Date: October 19, 1990
Respondent: James S. Horton
Bar Number: 001791
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Kristina Joyce Smith
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Docket No.: GCF 89-S-22, 89-S-16, 89-K-3, 89-S-186, 89-S-100, 89-S-120, 89-S-35
Issued by: Grievance Commission - Panel D
Date: July 31, 1990
Respondent: Kristina Joyce Smith
Bar Number: 002629
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Bruce S. Billings
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Docket No.: BAR-90-16
Issued by: Supreme Judicial Court
Date: April 26, 1991
Respondent: Bruce S. Billings
Bar Number: 001997
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. James Martin Dineen
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Docket No.: BAR 84-1
Issued by: Supreme Judicial Court
Date: January 18, 1985
Respondent: James M. Dineen
Bar Number: 001653
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Robert M. York
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Docket No.: BAR 85-15
Issued by: Supreme Judicial Court
Date: February 22, 1985
Respondent: Robert M. York
Bar Number: 001320
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel G. Aiken
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Docket No.: BAR 83-14
Issued by: Supreme Judicial Court
Date: February 19, 1986
Respondent: Daniel G. Aiken
Bar Number: 002020
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Miklos M. Pongratz
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Docket No.: BAR-09-14
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 8, 2010
Respondent: Miklos M. Pongratz
Bar Number: 009563
Order: Suspension
Disposition/Conduct: Standards of Care and Judgment; Interest in Litigation
Order
The Court previously issued Findings of Fact and Conclusions of Law dated April 8, 2010, concluding that Attorney Miklos M. Pongratz engaged in violations of Maine Bar Rules 3.6(a) and 3.7(c)(1)(a)1 in November and December 2007, while representing a client in an action for the determination of parental rights and responsibilities in the Bridgton District Court. Specifically, he failed to provide reasonable skill and care or apply his best judgment when he propositioned the client to engage in sexual relations during a day in which he was providing legal representation and counsel to her, and he wrongfully asserted a lien on her file by requiring her to sign an agreement to pay the fees that she owed him as a condition of receiving a copy of her client file.
At the Court?s request, counsel simultaneously filed written memoranda setting forth their positions regarding the appropriate disciplinary sanction for these violations. The Board has requested that the Court suspend Pongratz from the practice of law for a period of six months, with all but sixty days suspended subject to several conditions, including that he meet with and follow the directions of the Director of the Maine Assistance Program (MAP); personally apologize in writing to his client; pay the Board?s expenses in the amount of $975.21; and refrain from any future misconduct. The Board also proposes that Pongratz be subject to monitoring by another attorney for one year, and that any new complaints of professional misconduct proceed directly to the Court pursuant to M. Bar R. 7.2(b)(7) without the opportunity for review by or a hearing before the Grievance Commission. Pongratz urges the Court to impose reprimands for each violation.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Bd. of Overseers v. Dineen, 557 A.2d 610, 614 (Me. 1989). ?The court in an attorney discipline action is by rule authorized to impose an admonition, a reprimand, [or] public censure, in addition to the stiffer sanctions of suspension and disbarment.? Bd. of Overseers v. Ingeneri, 440 A.2d 1039, 1041 (Me. 1982)(quotation marks omitted). Among the factors to be considered in imposing sanctions are: (1) the duty violated; (2) the lawyer?s mental state; (3) the actual or potential injury caused by the lawyer?s misconduct; and (4) the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions Standard 3.0 (2005). Each of these factors is considered in turn.
In this case, the duties violated?the duty to exercise reasonable care and skill and to exercise best judgment?were fundamental to the attorney-client relationship between Pongratz and his client. By interjecting his own needs and desires into their relationship while simultaneously providing representation and advice, Pongratz lost the trust and confidence of his client. A lawyer?s duty to maintain professional boundaries is a cornerstone on which a successful attorney-client relationship rests. Those boundaries are particularly critical in connection with a relatively young and inexperienced client in the throes of highly stressful litigation over the custody of a child. By his actions, Pongratz left his client confused, hurt, and upset. The breach of the duty violated in this case was serious.
Pongratz?s behavior reflects intentional conduct on his part. His motivation was self-interest. Throughout this proceeding, he has denied any wrongdoing and has not accepted responsibility for his actions.
The actual or potential injury caused by the misconduct in this case is primarily the psychic injury caused to his client, and her loss of confidence in the bar and the civil justice system. Because Pongratz has forgiven the outstanding legal fees that his client owed him, and she is represented by her current attorney on a pro bono basis, she has not suffered any monetary loss.
Pongratz is relatively new to the practice of law, having first been admitted to the Maine Bar in May 2004. This is the first disciplinary proceeding brought against him. However, this mitigating fact is substantially outweighed by circumstances that preceded his admission to practice. In 1996, Pongratz pled guilty to and was convicted of the federal felony charge of conspiracy to possess marijuana with the intent to distribute. 21 U.S.C.S. ?? 841(a)(1), 846 (2002). This felony conviction created a presumption, at the time he applied for admission to the Maine Bar, that he did not meet the requirement of a good moral character.
4 M.R.S. ? 805-A(2)(A)(1) (2009). After a lengthy proceeding, the Board found that Pongratz had ?cleared the hurdle of overcoming the presumption against a finding of good moral character and shown that . . . a reasonable amount of time has passed since his conviction and completion of sentence and there is evidence of complete rehabilitation based on his subsequent history.? In re: Miklos M. Pongratz, Me. Bd. Bar Examiners decision (March 22, 2004). The Board also noted a reason for continuing concern regarding his ability to achieve the professionalism required of attorneys:
The Board also finds, however, that the Applicant almost missed that hurdle mostly due to his own overly technical efforts to keep licensing authorities and other lawyers from knowing the full truth about his background. The Applicant was almost too clever for his own good. Candor with courts and clients is a quality integral to professionalism at the bar.
Id.
By his more recent actions, Pongratz has called into question whether he is completely rehabilitated and whether he has the capacity to maintain the level of professionalism required of members of the Bar. For this reason, the Court concludes that the sanction in this case must be sufficiently severe to assure that Pongratz is deterred from further unprofessional conduct. The sanction is intended to make it clear that any similar future violations could lead to more serious sanctions, including the ultimate sanction of disbarment.
Accordingly, it is ORDERED that Attorney Pongratz is suspended from the practice of law for a period of eighteen months commencing September 1, 2010, with all but ninety days of that suspension suspended, subject to the following terms and conditions:
In addition, it is ORDERED that Bar Counsel shall bring to the attention of the Court any apparent violations of the conditions of this Order that might justify the imposition of all or a portion of the suspended period of the suspension. Bar Counsel is also authorized to file directly with the Court any new complaints of professional misconduct allegedly committed by Attorney Pongratz at any time before February 28, 2012, pursuant to Bar Rule 7.2(b)(7), without conducting any Grievance Commission review or hearing.
For the Court
Hon. John D. Levy, Associate Justice - Maine Supreme Judicial Court
Footnotes
1 Maine Bar Rule 3 has since been abrogated and replaced by the Maine Rules of Professional Conduct (effective August 1, 2009).
Board of Overseers of the Bar v. Joseph A. Ritzo
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Docket No.: Bar-10-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 24, 2010
Respondent: Joseph A. Ritzo
Bar Number: 003161
Order: Suspension
Disposition/Conduct: Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts; Responsibilities Regarding Nonlawyer Assistants; Misconduct
Order
This Court has received a certified copy of the New Hampshire Supreme Court's Professional Conduct Committee's Reissued Six-Month Suspension Order with conditions dated February 17, 2010, against Attorney Joseph A. Ritzo for his violations of New Hampshire Rules of Conduct 1.15(a), 5.3(a)(b)(c), and 8.4(a)(b)(c). By its terms that Order took effect March 1, 2010.
Through his attorney, Mr. Ritzo has notified the Court and Bar Counsel of his consent to the Board of Overseers of the Bar's request for imposition of identical concurrent discipline in Maine.
Therefore, by agreement of the parties, this Court hereby ORDERS:
For the Court
Hon. Warren M. Silver, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert L. Couturier, Esq.
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Docket No.: 09-240
Issued by: Grievance Commission
Date: June 28, 2010
Respondent: Robert L. Couturier, Esq.
Bar Number: 001473
Order: Reprimand
Disposition/Conduct: Conduct Unworthy and Attorney; Conduct Prejudicial to the Administration of Justice; and Conflict of Interest
Stipulated Report of Findings and Order of Panel #D of the Grievance Commission M. Bar R. 7.1(e)(2)(4)
On June 28, 2010, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Robert L. Couturier, Esq. The disciplinary proceeding had been commenced by the March 19, 2010 filing of a Disciplinary Petition by the Board of Overseers of the Bar.
At the hearing, Attorney Couturier was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Prior to the disciplinary proceeding, the parties submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Additionally, the complainant, Denise Theriault, attended the disciplinary hearing and was provided an advance copy of the proposed Report.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following findings and disposition:
Respondent Robert L. Couturier of Lewiston, Maine has been at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Couturier was admitted to the Maine Bar in 1970. He has no history of any prior discipline.
On June 24, 2009, Denise L. Theriault filed a complaint against Attorney Couturier. Ms. Theriault?s complaint alleged that Couturier engaged in a conflict of interest related to his representation of Ms. Theriault?s elderly parents, the Landrys. That representation involved Couturier?s initial preparation of reciprocal Wills for the couple. By August 2000, the couple?s living situation had dramatically changed such that Mrs. Landry was incapacitated and Mr. Landry was living separately from her. Later that year, Couturier prepared a new Will for Mr. Landry which specifically deprived Mrs. Landry of her right to inherit from him.
Therefore, in drafting and assisting with Mr. Landry?s new Will, Couturier commenced representation adverse to a former client. The new representation for Mr. Landry was substantially related to the matter for which he formerly represented Mrs. Landry. Moreover, Mrs. Landry neither knew of nor consented to Couturier?s actions in making these Will revisions for Mr. Landry. Couturier?s preparation and drafting of that revised Will constituted a violation of then applicable M. Bar R. 3.1(a) [conduct unworthy of an attorney]; 3.2(f)(4) [conduct prejudicial to the administration of justice]; and 3.4(d)(1)(i) [conflict of interest].
At the time of the misconduct, Attorney Couturier?s actions were governed by the then applicable Code of Professional Responsibility. That Code specifically required attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Couturier?s above-outlined failures, Mrs. Landry?s interests were not protected and she was denied an ability to inherit from her husband. The Panel notes that Attorney Couturier has taken responsibility for his actions. It is clear he did not intend to harm Mrs. Landry, as he believed his actions would have no negative effect upon her. Nevertheless, he accepts that the end result constituted professional misconduct. At the disciplinary hearing, Attorney Couturier expressed remorse for his violations of the then applicable Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Couturier agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Couturier?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Robert L. Couturier, Esq. That reprimand is hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Parties
Aria Eee, Assistant Bar Counsel
Robert L. Couturier, Esq.
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
Joseph R. Reisert, Ph.D
Board of Overseers of the Bar v. Clayton N. Howard, Esq.
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Docket No.: GCF-09-053 and 09-057
Issued by: Grievance Commission
Date: July 12, 2010
Respondent: Clayton N. Howard, Esq.
Bar Number: 000115
Order: Reprimand
Disposition/Conduct: Conduct Unworthy and Attorney; Disclosure of Interest, Commencement, and Termination; Conflict of Interest; Representation Permitted With Consent;
Report of Findings of Panel C of the Grievance Commission
On June 14, 2010, due notice having been properly and seasonably given, Panel C of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1 (e)(2), to determine whether there were grounds for the issuance of a reprimand or whether probable cause existed for the filing of an information with the Supreme Judicial Court for further proceedings concerning alleged misconduct by Respondent, Clayton N. Howard, Esquire (Howard) as described in the Petition dated November 20, 2009 filed by the Board of Overseers of the Bar (the Board).
Assistant Bar Counsel, Jacqueline L.L. Gomes, Esquire, represented the Board, and James B. Haddow, Esquire, represented Howard; both counsel and Howard were present at the hearing. The complainant, James Metzger, was also in attendance. The Panel incorporates the Stipulated Facts offered by counsel dated June 14, 2010, and makes such additional finding as follows:
The panel finds that Attorney Howard violated Me. Bar Rules 3.4(a)(failure to disclose interest of a lawyer prior to commencement of representation); 3.4(b)(prohibition against commencement or continuing to represent a client if matter involves a conflict of interest where there is a substantial risk that the representation would be materially and adversely affected by the lawyer?s duties to a current client or former client); 3.4(c) and (d)(No simultaneous representation without informed consent of each affected client). Each violation, in and of itself, constitutes conduct unworthy of an attorney in violation of Me. Bar Rule 3.1.
Me. Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Attorney Howard fails to appreciate that at certain points from May 22, 2007 through September 11, 2008, conflicts of interest were present at various occasions when dealing either separately or together with Mr. Metzger and Ms. Sparrell. Considering the above facts stipulated to by the parties, together with the testimony and evidence presented, the Panel finds for the reasons stated above that misconduct occurred that violated the Maine Bar Rules.
In view of the foregoing misconduct, while also taking into consideration that during Attorney Howard?s tenure of his practice in the Maine Bar, Attorney Howard has received a private reprimand and a dismissal with a warning (in 1980 and 1995 respectively), the Panel concludes that the appropriate disposition of this Petition is that Attorney Clayton N. Howard be, and hereby is, reprimanded for violating Me. Bar R. 3.4(a)(1), 3.4(b)(1), 3.4(c)(2)(i), 3.4(c)(2)(iii), 3.4(d) and 3.1 as established in the findings of fact discussed in this report.
For the Grievance Commission
David S. Abramson, Esq., Chair
Peter Clifford, Esq.
Christine Holden, Ph.D
Board of Overseers of the Bar v. Stephen M. Brett
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Docket No.: Bar-09-09
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 13, 2010
Respondent: Stephen M. Brett
Bar Number: 009277
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Preserving Identity of Funds and Property; Engage in Illegal Conduct that Adversely Reflects on the Lawyer's Honesty, Trustworthiness, or Fitness as a Lawyer in other Respects; Engage in Conduct Involving Dishonesty, Fraud
ORDER
The Board of Overseers of the Bar initiated the above attorney disciplinary action on January 25, 2010 by the filing of an Amended Information. Based upon their discussions after the pre-trial conference, the parties notified the Court that they were in agreement to an order providing for stipulated findings and sanction.
On July 8, 2010, the parties appeared before the Court to outline their proposal for resolution of this matter. The Board was represented at the hearing by Assistant Bar Counsel Aria Eee and Stephen Brett appeared pro se.
Mr. Brett was admitted to the Maine bar in 2001. From his admission until May 2006, Mr. Brett engaged in a solo private practice in York County, Maine. In June 2006, the Court (Dana, J.) indefinitely suspended Mr. Brett from practicing law. That suspension remains in effect and Brett has not applied for reinstatement.
Following a review of the pleadings, the exhibits and the parties? proposal, the Court finds that Mr. Brett engaged in violations of then applicable Maine Bar Rules 3.1(a); 3.2(f)(2)(3)(4); and 3.6(e)(i)(ii). To begin with, Mr. Brett failed to properly maintain funds which were entrusted to him by the Complainant, Liberty Title Company. During an April 2006 real estate closing in which Liberty Title hired Brett to act as the settlement agent, he failed to remit the required funds to the Maine Revenue Service (MRS). Subsequently, Mr. Brett improperly retained those funds in his bank account and failed to pay Maine Revenue Service for the required withholding tax. Mr. Brett asserts that at the time of the closing, he did not receive that instruction or realize such tax was then due.
By November 2007, Liberty Title had paid the tax and penalties on its client?s behalf. The next month, Mr. Brett reimbursed Liberty Title for the $3625.00 it paid to Maine Revenue Service.
Additionally, on January 8, 2010 Mr. Brett plead no contest to the charge of ?Misuse of Entrusted Property? and guilty to three counts of ?Failure to Make and File Maine Income Tax Returns?. Those convictions constitute violations of then applicable M. Bar R. 3.1 (a) and 3.2(f)(2). In accordance with the approved plea agreement, earlier this year, Mr. Brett served thirty (30) days in jail. He is also required to pay $611.00 restitution to Liberty Title and file all outstanding tax returns.
In light of Mr. Brett?s violations of the Code of Professional Responsibility and accepting his acknowledgment that these are serious violations, the Court must now consider an appropriate sanction.
The primary purpose of attorney discipline is protection of the public. For this reason, the Court hereby approves the parties? agreement and ORDERS the following sanction in this matter as proposed by the parties:
FOR THE COURT
Warren M. Silver, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stephen A. Canders
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Docket No.: 88-K-74
Issued by: Grievance Commission
Date: November 8, 1989
Respondent: Stephen A. Canders
Bar Number: 002045
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas S. Carey
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Docket No.: GCF 85-234, 86-101, 86-72
Issued by: Grievance Commission
Date: August 25, 1987
Respondent: Thomas S. Carey
Bar Number: 000095
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Gerald S. Cope
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Docket No.: 87-S-153
Issued by: Grievance Commission
Date: October 17, 1988
Respondent: Gerald S. Cope
Bar Number: 001801
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Stephen W. Devine
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Docket No.: 86-46
Issued by: Grievance Commission
Date: December 31, 1986
Respondent: Stephen W. Devine
Bar Number: 008124
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Catherine R. Johns
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Docket No.: 84-155
Issued by: Grievance Commission
Date: March 25, 1987
Respondent: Catherine R. Johns
Bar Number: 001843
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Herschel M. Lerman
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Docket No.: 85-179
Issued by: Grievance Commission
Date: April 30, 1987
Respondent: Herschel M. Lerman
Bar Number: 000592
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas F. Malone, Jr.
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Docket No.: 84-1, 84-34, 84-36, 86-86, 86-218
Issued by: Grievance Commission
Date: June 23, 2008
Respondent: Thomas F. Malone, Jr.
Bar Number: 001813
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: 85-246
Issued by: Grievance Commission
Date: December 17, 1987
Respondent: Thomas M. Mangan
Bar Number: 001743
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. E. Stephen Murray
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Docket No.: 86-132
Issued by: Grievance Commission
Date: November 29, 1988
Respondent: E. Stephen Murray
Bar Number: 001137
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Neil D. MacKerron
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Docket No.: 86-5, 86-65
Issued by: Grievance Commission
Date: June 30, 1987
Respondent: Neil D. MacKerron
Bar Number: 001090
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. J. P. Nadeau
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Docket No.: 83-3
Issued by: Grievance Commission
Date: June 22, 1987
Respondent: J. P. Nadeau
Bar Number: 001020
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. James G. Palmer
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Docket No.: 84-170, 85-46, 85-76, 86-233, and 87-K-132
Issued by: Grievance Commission
Date: June 23, 1988
Respondent: James G. Palmer
Bar Number: 001532
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Nathan D. Bell, Esq.
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Docket No.: GCF-10-010
Issued by: Grievance Commission
Date: July 26, 2010
Respondent: Nathan D. Bell, Esq.
Bar Number: 08683
Order: Reprimand
Disposition/Conduct: Standards of Care and Judgment: Compentence; Diligence; Lack of
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(3)(C) M. Bar R. 7.1(e)(4)
On July 26, 2010, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by Respondent Nathan D. Bell, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 1, 2010.
At the hearing, Attorney Bell was represented by Attorney James M. Bowie, and the Board was represented by Bar Counsel J. Scott Davis. The Complainant, Raymond Carey, had been provided with a copy of counsel?s proposed Report (see below) and chose to not attend the hearing. Pursuant to M. Bar R. 7(b)(6), Bar Counsel Davis and Attorney Bowie agreed Panel D could act on this matter comprised of only one attorney member and one lay member.
Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Panel?s review and consideration. Additionally, the Panel accepted and admitted into evidence by agreement of the parties all of the Board?s exhibits.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Nathan D. Bell (Bell) of Unity, County of Waldo, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Bell was admitted to the Maine Bar in 1998 and he is currently registered as an active Maine attorney with a solo practice.
On or about January 6, 2010, Mr. Carey filed a complaint with the Board against Attorney Bell. Mr. Carey?s complaint alleged that Attorney Bell did not pursue his claim to obtain an elective one-third of his deceased wife?s property prior to the expiration of the statutorily limited time frame. Mr. Carey also complained that Attorney Bell failed to attempt negotiations for a conveyance of the property from a third owner and failed to properly communicate or respond to his inquiries regarding the status of the case.
Mr. Carey was also concerned that Attorney Bell did not acknowledge his requests for the return of his file. In fact, he did not return that file until after Mr. Carey?s bar complaint was filed against him.
Attorney Bell had initially responded by generally disputing most of Mr. Carey?s claims. He does now, however, admit to neglect of the matter and that upon receipt of the November 20, 2009 certified letter from Mr. Carey asking for the return of the file he did not promptly return that file to his client.
In response to that November 20th letter, Attorney Bell did not call Mr. Carey, or return the file by mail. Instead, some three weeks later he took the file to Mr. Carey?s house to deliver it in person. Mr. Carey, however, was not home and therefore the file was not then delivered. It then improperly remained for an extended time on Attorney Bell?s ?to do list,? i.e. for approximately another month until Mr. Carey filed this Bar Complaint in January 2010. Attorney Bell only then mailed Mr. Carey his complete file. Attorney Bell?s two reply letters to Bar Counsel contained no supporting documentation. Moreover, documentation in this matter was supplied to Bar Counsel by Mr. Carey and includes an August 21, 2006 letter from Attorney Bell to one of the two other estate beneficiaries in this matter, Mr. Wesley Drake (the son of Mr. Carey?s wife).
Although he had never so admitted in his response to Bar Counsel, in his letter to Mr. Drake Attorney Bell specifically stated that the estate file was ?misplaced? by him for a period of time, a fact that he had only discovered upon inquiry by Mr. Carey. He admitted that he had engaged in a ?lack of attention? to Mr. Carey?s legal matter involving his wife?s estate. Attorney Bell?s statements in that letter support Mr. Carey?s assertions against him: Attorney Bell admitted misplacing the file for a time period and agreed he had neglected this matter by his ?lack of attention?.
The Code of Professional Responsibility and Maine Rules of Professional Conduct each specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Bell?s above-outlined failures, Mr. Carey was misled as to the status of the prolonged probate of his wife?s still pending estate, and had to endure Attorney Bell?s lack of response to his inquiries. The Panel notes that Attorney Nathan D. Bell has taken responsibility for his lapses. At the disciplinary hearing, Attorney Bell expressed his remorse for his violation of Maine Bar Rule 3.6(a)(3)(neglectful conduct) of the earlier applicable Code of Professional Responsibility, as well as of Rules 1.1(lack of competence), 1.3(lack of diligence) and 1.4(lack of communication) of the now applicable Maine Rules of Professional Conduct.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Attorney Bell has no sanction record with the Board of Overseers of the Bar. Since the evidence supports a finding of misconduct in this instance and Attorney Bell agrees that he did in fact violate the above-referenced attorney conduct rules, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Bells? waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Nathan D. Bell, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C),(4).
For the Parties
J. Scott Davis, Bar Counsel
Nathan D. Bell, Esq.
James M. Bowie, Esq.
For the Grievance Commission
William Baghdoyan, Esq., Acting Panel Chair
David Nyberg, Ph.D.
Board of Overseers of the Bar v. Stephen J. Bourget, Esq.
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Docket No.: 09-207
Issued by: Grievance Commission
Date: July 26, 2010
Respondent: Stephen J. Bourget, Esq.
Bar Number: 003737
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On July 26, 2010, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Stephen J. Bourget, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 28, 2010.
At the proceeding, Attorney Bourget was represented by Attorney James M. Bowie, and the Board was represented by Bar Counsel J. Scott Davis. Complainant Rebecca S. Webber, Esq. of Auburn, Maine had been provided by Bar Counsel in advance of that proceeding with a copy of the parties? proposed stipulated sanction Report. Attorney Webber confirmed to Bar Counsel her agreement with the content of that proposed Report and thereby elected to not attend the proceeding. Pursuant to M. Bar R. 7(b)(6), Bar Counsel Davis and Attorney Bowie agreed Panel D could act on this matter comprised of only one attorney member and one lay member.
Prior to that disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Steven J. Bourget, Esq. of Augusta, County of Kennebec, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Bourget was admitted to the Maine Bar in April 1988 and he is currently registered as an active Maine attorney.
On June 8, 2009 Attorney Webber filed a complaint against Attorney Bourget based upon his improper treatment of her client, Ms. H., who had been Attorney Bourget?s former dating partner. Attorney Webber?s complaint detailed several allegations concerning Bourget?s increasingly offensive conduct toward Ms. H, principally occurring from his telephonic voice and text messages to her.
In retrospect, Attorney Bourget agrees and admits that his sexually explicit communications to Ms. H were indecent, degrading, vulgar and demeaning. He now understands that his actions and comments greatly disturbed Ms. H. and caused her to seek Attorney Webber?s legal help to obtain protection from him through the judicial system. In that regard, Attorney Bourget acknowledges that his communications coupled with his position as an attorney served to greatly intimidate and threaten Ms. H. He agrees that each instance of his insolent, debasing and crude treatment of Ms. H constituted violations of then applicable M. Bar R. 3.1(a)(conduct unworthy of an attorney) and 3.2(f)(2)(4)(conduct prejudicial to the administration of justice).
As a result of Attorney Bourget?s offensive behavior and treatment of Ms. H., Attorney Webber sought a Temporary Order for Protection from Abuse. Thereafter, the parties agreed to a final Order, issued without findings of abuse, which remains in effect until May 2011.
The Panel notes and confirms that although this improper behavior occurred largely within the context of Attorney Bourget?s personal life, Maine?s professional conduct rules are always applicable to its attorneys. Thus, Attorney Bourget now understands and has confirmed to the Panel that his actions toward Ms. H. were reprehensible and revealed personal behavioral problems which required professional intervention and the court?s issuance of a protective order for Ms. H.
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients, the courts and members of the public. As an officer of the court, Attorney Bourget recognizes that his behavior toward all persons must conform to the standards he agreed to uphold when he undertook the Attorney?s Oath at his admission to the Maine bar. The Panel notes that Attorney Bourget has acknowledged his serious transgressions and has contracted for services with the Maine Assistance Program for Lawyers and Judges (MAP). He has also agreed to initiate no direct or indirect contact with Ms. H., even after the May 2011 expiration of the court?s protection order in BANDC-PA-2009-00307.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. At the disciplinary proceeding, Attorney Bourget expressed his remorse for his serious violations of the Code of Professional Responsibility. Bar Counsel Davis confirmed for the Panel that Attorney Bourget has no prior sanction record with the Board of Overseers of the Bar. Nevertheless, since the evidence of his serious misconduct in this instance supports a finding and Attorney Bourget agrees he did in fact violate the Code of Professional Responsibility, the Panel finds that its issuance of a public reprimand of him should serve to adequately protect the public.
Therefore, the Panel accepts the agreement of the parties, including Attorney Bourget?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney Stephen J. Bourget, which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Parties
J. Scott Davis, Bar Counsel
Stephen J. Bourget, Esq.
James M. Bowie, Esq.
For the Grievance Commission
William Baghdoyan, Esq., Acting Panel Chair
David Nyberg, Ph.D.
Board of Overseers of the Bar v. Alison J. Bane
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Docket No.: GCF-10-031
Issued by: Grievance Commission
Date: July 27, 2010
Respondent: Alison J. Bane
Bar Number: 006896
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Unauthorized Practice of Law; Other Misconduct; False Statement to a Judge; Candor Toward the Tribunal;
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On July 27, 2010, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Alison J. Bane. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 9, 2010.
At the hearing, Attorney Bane was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Alison J. Bane (Bane) of Topsham, County of Sagadahoc, State of Maine, is currently registered as an inactive Maine attorney. She was admitted to the Maine Bar in September 1989 and she first registered as an inactive attorney in 1999. Under M. Bar R. 6(c) Ms. Bane was prohibited from practicing law in Maine but remained subject to regulation by the Board.
On January 25, 2010, Ms. Bane ?self-reported? to Bar Counsel that she had violated various provisions of the Code of Professional Responsibility and the Maine Rules of Professional Conduct. Specifically, Ms. Bane admitted to working both as a government lawyer and privately providing legal advice to several people despite her status as an inactive attorney. Ms. Bane further admitted to having misled a District Court judge about the status of a personal legal matter. Ms. Bane explained that she had been suffering from significant personal problems that had impacted her judgment, and her ?self-report? was made as part of the effort to remedy those problems. Her actions constituted violations of M. Bar R. 3.1(a); 3.2(a)(1); 3.2(f)(1)(2)(3)(4); 6(c); and M. R. Prof. Conduct 3.3(a)(1); 5.5(a)(b); 8.4(a)(b)(c)(d).
The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to the public, clients and the courts. Due to Ms. Bane?s actions members of the public, colleagues and unsuspecting ?clients? were misled into believing she was properly licensed to practice law. Moreover, due to her misrepresentation, a District Court judge accepted as truth information that she knew was inaccurate.
The Panel notes that Ms. Bane has taken responsibility for her deception. At the disciplinary hearing, Ms. Bane expressed her remorse for her serious violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. Since the evidence supports a finding and Ms. Bane agrees that she did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Ms. Bane?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Alison J. Bane which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C)(4).
For the Parties
Aria Eee, Assistant Bar Counsel
Alison J. Bane
For the Grievance Commission
Victoria Powers, Esq., Panel Chair
John C. Hunt, Esq.
Joseph R. Reisert, Ph.D.
Board of Overseers of the Bar v. Richard L. Rhoda, Esq.
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Docket No.: 05-036
Issued by: Grievance Commission
Date: Marcy 17, 2006
Respondent: Richard L. Rhoda, Esq.
Bar Number: 000124
Order: Reprimand
Disposition/Conduct:
REPORT OF PROCEEDINGS, FINDINGS, CONCLUSIONS AND DISPOSITION
The above matter was heard by a Grievance Commission Panel A, on March 7, 2006, at the Magistrates Court Room, US District Court, 202 Harlow Street, Bangor, Maine 04402. Pursuant to a displinary petition dated August 24, 2005, with proper notice being provided, a displinary hearing open to the public was conducted on this date pursuant to Maine Bar Rules 7.1 (e)(1),(2) to determine whether the grounds exist for the issuance of a reprimand or whether probable cause exist for the filing of an information with the Court. The Board of Overseers was represented by Attorney Bar Counsel Aria eee, Esq. and Respondent, Richard L. Rhoda, Esq. was represented by Attorney Kevin M. Cuddy, Esq. at the Hearing.
The pleadings consisted of a Petition filed by the Board and Response filed by the Respondent. In the course of the proceedings Exhibits 1 through 22 and Exhibits 24 through 29 were admitted, without objection. Exhibit 23 was marked but never offered nor admitted. The Complainants, Russell and Brenda Rodgerson were present and Brenda Rodgerson did testify. The Respondent, Richard Rhoda also testified.
The Respondent has been a practicing attorney in Houlton, Maine since 1974. At one point, he was an Assistant District Attorney, but currently and for the majority of the time he has been in practice, he has been a general practitioner. A significant portion of his practice is devoted to real estate matters.
The Complainants, Russell and Brenda Rodgerson were owners of a home located in Oakfield, which is at the center of this complaint. Brenda Rodgerson's father, Blair Libby, was the original owner of the Oakfield home. Blair Libby had two (2) children, Brenda Rodgerson and Joyce Libby Bartlett. Joyce Bartlett predeceased her father, Blair Libby. Joyce Bartlett was survived by three (3) children, Michelle Bartlett, Gregory Bartlett, and Jonathan Bartlett. It was testified that Mr. Libby did not have a Will. Apparently, in an effort to do some estate planning, however, Mr. Libby had set aside three (3) specific certificates of deposit for his three (3) grandchildren, Michelle Bartlett, Greg Bartlett and Jonathan Bartlett. At approximately the same time, in May of 2000, Blair Libby hired Attorney Daniel Nelson to prepare a deed to convey his Oakfield home to himself and to his daughter Brenda Rodgerson, and her husband; title to those grantees was as Joint Tenants. That deed was executed by Blair Libby on September 13, 2000, delivered to Brenda Libby and later recorded by her at the Registry of Deeds. Blair Libby and his daughter later learned that Michelle Bartlett had withdrawn the funds in one of the certificates of deposit that her grandfather, Blair, had established. Per the testimony of Brenda Rodgerson, this upset Mr. Libby, at which time he instructed his daughter Brenda Rodgerson to utilize his Power of Attorney, he had to change the remaining certificate of deposit for Michelle Bartlett and have her name removed. Blair Libby died on May 15,2002.
After the death of Blair Libby, Michelle Bartlett consulted with the Respondent, Attorney Rhoda, regarding the initiation of an undue influence claim by Michelle Bartlett and her siblings against Brenda Rodgerson, dealing with the affairs of Blair Libby. Two or three consultations occurred during the later part of 2002 and early part of 2003. By June of 2003, Michelle Bartlett and her siblings had instructed Attorney Rhoda to proceed with an undue influence claim against Brenda Rodgerson.
Several months after the death of Blair Libby, Brenda and Russell Rodgerson listed for sale the Oakfield home that had been deeded to them by Blair Libby. The Realtor handling the listing was First Choice Realty located in Houlton. In June of 2003, the Rodgersons' entered a Purchase and Sale Agreement for the sale of the Oakfield home. At the suggestion of First Choice Realty, the Rodgersons' agreed that Attorney Rhoda could handle their side of this sale transaction. First Choice Realty faxed to Attorney Rhoda a copy of the Purchase and Sale Agreement, which contained the sale price and closing date, and also a summary sheet containing other information and details of the transaction. Upon receipt of that information, Attorney Rhoda made brief contact with the Rodgersons'. He and his office staff then undertook the normal steps to prepare for the seller's side of a real estate transaction. Upon doing some deed research to prepare for the transaction, Attorney Rhoda became aware that the names involved in the chain of title involved not only Brenda Rodgerson, but also Blair Libby. Pursuant to discovering those names, Attorney Rhoda recognized that there was a conflict with the matter that Michelle Bartlett had consulted and retained him.
Attorney Rhoda did immediately withdraw from the representation of Brenda and Russell Rodgerson regarding the sale of the Oakfield home. He did not, however, withdraw from representation of Michelle Bartlett and her siblings. On July 25, 2003, Attorney Rhoda filed with the Court a complaint alleging undue influence and also filed a Motion for Ex Parte Attachment. The Motion for Ex Parte Attachment was supported by two (2) affidavits signed by Michelle Bartlett, both of which were prepared by Attorney Rhoda. The Motion for Ex Parte Attachment was granted, an attachment of $50,000.00 was made upon the sale proceeds of the Rodgersons' Oakfield home, which had gone to closing on the same date of July 25, 2003.
Attorney Rhoda continued to represent Michelle Bartlett and her siblings until February of 2004 when he ultimately withdrew. Prior to his withdrawal, the litigation regarding the undue influence claim proceeded through discovery, which apparently involved a voluminous production of documents all relating to the affairs of Blair Libby and his assets, and through the ADR process. After his withdrawal in February of 2004, Michelle Bartlett and her siblings were represented by Attorney Jeff Pickering and Attorney Brian Swayles of Houlton. The Superior Court docket entries indicate that a Motion for Summary Judgment filed by Michelle Bartlett, et al. had been denied. A trial in the matter was ultimately held, at which the Bartletts' were represented by either Attorney Pickering or Attorney Swayles. At the close of the Plaintiff's case, Justice Hunter dismissed the claim of Michelle Bartlett and her siblings. The docket entries from the Superior Court further indicate that the Rodgersons' made application for sanctions, which request was denied. Following that litigation, Brenda and Russell Rodgerson made their complaint with the Board of Overseers regarding the conduct of Attorney Rhoda.
After consideration of all the evidence submitted at the Hearing, the Panel makes the following findings: 1. Upon receipt of a Purchase and Sale Agreement in June of 2003, Respondent Attorney Rhoda undertook representation of Brenda and Russell Rodgerson, which included contact by him and his staff with his new clients, the Rodgersons and also included conducting some deed research;
Based upon the above findings, the Panel finds that Bar Rules 3.2(D(1) and 3.4(b)(1), (c)(1), (d)(1 )(i) were violated by the Respondent. Those rules state:
?3.2 Admission, Disclosure and Misconduct
(f) Other Misconduct. A lawyer shall not:
(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;
?3.4 identifying Commencement, Continuation, and Termination of Representation?
(b) Conflict of Interest: General Provisions.
(1) Basic Rule. A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest, except as permitted by this rule. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duties to another current client, to a former client, or to a third person, or by the lawyer's own interests.
(c) Conflict of Interest: Simultaneous Representation.
(1) Representation Prohibited. Notwithstanding the consent of each affected client, a lawyer may not simultaneously represent, or continue to represent, more than one client in the same matter or group of substantially related matters when the matter or matters are the subject of litigation of any other proceeding for dispute resolution and the clients are opposing parties.
(c) Conflict of Interest: Successive Representation.
(1) Interests of Former Clients.
(i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation."
The facts clearly indicate that once the Respondent Rhoda commenced work regarding the Rodgerson sale, a simultaneous representation existed, in violation of the rules. Attorney Rhoda did cease representation of the Rodgersons, but his failure to cease representation of Michelle Bartlett and her siblings, however, resulted then in a violation of rule 3.4(d), which now represented "successive representation". A specific detail of the Rodgerson sale transaction which Respondent Attorney Rhoda learned during the simultaneous representation was the closing date of July 25. This is information that was ultimately used to the disadvantage of the Rodgersons' when Attorney Rhoda, on behalf of Michelle Bartlett, et aI., filed the Motion for Ex Parte Attachment on that same date of July 25, 2003. Although Attorney Rhoda now recognizes his conflict and admitted to a violation of the rules regarding the conflict of interest, he failed to recognize that conflict when it was most critical in June and July of 2003.
The Board has also alleged that Respondent violated Bar Rule 3.7 (e)(1 )(i). The Panel finds that the Board has failed to meet its burden of proof regarding this alleged violation. Although the undue influence claim was dismissed by Justice Hunter, there is no evidence of the basis or reasoning for that dismissal. The Panel is also cognizant of the fact that a Motion for Sanctions was made, but apparently denied. Even more problematic for the Panel in making a decision regarding this alleged violation is that there were many other factors potentially affecting the course and outcome of the undue influence litigation, which other factors were out of Attorney Rhoda's control once he withdrew in February of 2004. And while Respondent Rhoda's conduct and conflict of interest clearly had impact of the issuance of the Ex Parte Attachment, there is not sufficient evidence to find that the conflict of interest had any effect on the final outcome or resolution of the litigation regarding the undue influence claims. Accordingly, based upon the evidence and the record before it, Panel A, determines the appropriate disposition of this petition is that the respondent should and hereby is reprimanded.
For the Grievance Commission
Harold L. Stewart II, Esq., Panel Chair
John A. Mitchell, Esq.
Raymond J. Cota
Board of Overseers of the Bar v. Stephen H. MacKenzie, Esq.
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Docket No.: GCF-97-71; 97-98
Issued by: Grievance Commission
Date: August 16, 1999
Respondent: Stephen H. MacKenzie, Esq.
Bar Number: 007086
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct During Represenation: Standards of Care and Judgment; Withdrawal from Employment
Board of Overseers of the Bar v. Mary Beth Crocket, Esq.
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Docket No.: GCF# 98-182 ; GCF# 99-22
Issued by: Grievance Commission
Date: September 14, 1999
Respondent: Mary Beth Crocket, Esq.
Bar Number: 008450
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Neglect; Required Filings
Board of Overseers of the Bar v. Patti Davis Brewer, Esq.
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Docket No.: GCF# 98-125
Issued by: Grievance Commission
Date: July 19, 1999
Respondent: Patti Davis Brewer, Esq.
Bar Number: 003217
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney; Conduct Prejudicial to the Administration of Justice; Neglect; Preserving Identity of Funds and Property
Board of Overseers of the Bar v. Julio V. DeSanctis
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Docket No.: GCF# 94-S-5
Issued by: Grievance Commision
Date: October 16, 1995
Respondent: Julio V. DeSanctis, Esq.
Bar Number: 001751
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. David S. Turesky
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Docket No.: GCF# 93-S-124
Issued by: Grievance Commission
Date: April 13, 1995
Respondent: David S. Turesky
Bar Number: 001926
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Richard F. Rhoda
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Docket No.: GCF# 92-K-932; GCF# 93-K-1
Issued by: Grievance Commission
Date: March 3, 1995
Respondent: Richard F. Rhoda
Bar Number: 000124
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel H. Reich
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Docket No.: GCF # 94-G-56
Issued by: Grievance Commission
Date: November 27, 1995
Respondent: Daniel H. Reich
Bar Number: 007013
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Stephen A. Little
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Docket No.: GCF# 93-K-134
Issued by: Grievance Commission
Date: March 29, 1995
Respondent: Stephen A. Little
Bar Number: 000436
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Arthur B. LaFrance
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Docket No.: GCF# 92-S-270
Issued by: Grievance Commission
Date: December 21, 1995
Respondent: Arthur B. LaFrance
Bar Number: 002001
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Philip L. Ingeneri
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Docket No.: GCF# 92-S-258
Issued by: Grievance Commission
Date: April 11, 1995
Respondent: Philip L. Ingeneri
Bar Number: 001443
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Richard L. Currier
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Docket No.: 93-G-164
Issued by: Grievance Commission
Date: November 20, 1995
Respondent: Richard L. Currier, Esq.
Bar Number: 002245
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Ralph W. Brown, Esq.
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Docket No.: GCF# 92-S-301; GCF# 92-S-302
Issued by: Grievance Commission
Date: October 23, 1995
Respondent: Ralph W. Brown, Esq.
Bar Number: 002704
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Lowell D. Weeks
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Docket No.: GCF# 94-G-185
Issued by: Grievance Commission
Date: January 22, 1996
Respondent: Lowell D. Weeks
Bar Number: 001430
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Hercules E. Ruffolo, Esq.
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Docket No.: GCF# 96-S-79
Issued by: Grievance Commission
Date: April 2, 1997
Respondent: Hercules E. Ruffolo, Esq.
Bar Number: 003529
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E. Powers, Esq.
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Docket No.: GCF# 96-G-104
Issued by: Grievance Commission
Date: April 23, 1997
Respondent: Thomas E. Powers, Esq.
Bar Number: 002947
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas M. Mangan, Esq.
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Docket No.: GCF# 96-G-41
Issued by: Grievance Commission
Date: August 1, 1997
Respondent: Thomas M. Mangan, Esq.
Bar Number: 01743
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. David L. Brooks, Esq.
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Docket No.: GCF# 97-28
Issued by: Grievance Commission
Date: January 17, 1998
Respondent: David L. Brooks, Esq.
Bar Number: 001079
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. John L. Carver, Esq.
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Docket No.: GCF# 97-38
Issued by: Grievance Commission
Date: June 11, 1998
Respondent: John L. Carver, Esq.
Bar Number: 000209
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Elizabeth Kelly Ebitz, Esq.
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Docket No.: GCF# 96-G-146 and 96-G-189
Issued by: Grievance Commission
Date: May 26, 1998
Respondent: Elizabeth Kelly Ebitz, Esq.
Bar Number: 002036
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. David M. Cox
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Docket No.: JUD-93-1
Issued by: Supreme Judicial Court
Date: May 22, 1995
Respondent: David M. Cox
Bar Number: 000697
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Torrey A. Sylvester
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Docket No.: BAR-92-01
Issued by: Supreme Judicial Court
Date: March 10, 1994
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Andrews B. Campbell
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Docket No.: BAR-87-15
Issued by: Supreme Judicial Court
Date: September 1, 1994
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. Robert M.A. Nadeau, Esq.
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Docket No.: 03-255; 03-335
Issued by: Grievance Commission
Date: June 2, 2005
Respondent: Robert M.A. Nadeau, Esq.
Bar Number: 007460
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Charles Kadish
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Docket No.: BAR-96-17
Issued by: Supreme Judicial Court
Date: June 27, 1997
Respondent: Charles Kadish
Bar Number: 002668
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Terrance J. Brennan
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Docket No.: BAR-98-5
Issued by: Supreme Judicial Court
Date: December 7, 1998
Respondent: Terrance J. Brennan
Bar Number: 003429
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Joseph R. Hunt
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Docket No.: BAR-91-11
Issued by: Supreme Judicial Court
Date: March 6, 1995
Respondent: Joseph R. Hunt
Bar Number: 002926
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Ronald L. Bishop
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Docket No.: GCF# 98-145
Issued by: Grievance Commission
Date: July 21, 1999
Respondent: Ronald L. Bishop, Esq.
Bar Number: 000886
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Andrew W. Chasse
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Docket No.: BAR-99-9
Issued by: Supreme Judicial Court
Date: December 12, 1999
Respondent: Andrew W. Chasse
Bar Number: 002721
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Brian L. Datson
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Docket No.: BAR-99-2
Issued by: Supreme Judicial Court
Date: September 7, 1999
Respondent: Brian L. Datson
Bar Number: 003558
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Gordon P. Gates
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Docket No.: BAR-95-1; BAR-95-5
Issued by: Supreme Judicial Court
Date: August 11, 1995
Respondent: Gordon P. Gates
Bar Number: 007403
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas F. Malone, Jr.
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Docket No.: Bar - 90-13; BAR-91-33; BAR-93-9
Issued by: Supreme Judicial Court
Date: December 15, 1995
Respondent: Thomas F. Malone, Jr.
Bar Number: 001813
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Lenore A. Grant, formerly known as Lenore A. Houck
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Docket No.: BAR No. 95-7
Issued by: Supreme Judicial Court
Date: July 24, 1995
Respondent: Lenore A. Grant, formerly known as Lenore A. Houck
Bar Number: 003071
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. John J. Lynch, Esq.
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Docket No.: BAR-97-2
Issued by: Supreme Judicial Court
Date: June 30, 1997
Respondent: John J. Lynch, Esq.
Bar Number: 001486
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Sue A. Bushey, Esq.
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Docket No.: BAR-97-10
Issued by: Supreme Judicial Court
Date: September 17, 1997
Respondent: Sue A. Bushey, Esq.
Bar Number: 003069
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Lenore A. Grant
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Docket No.: BAR No. 96-11
Issued by: Supreme Judicial Court
Date: January 14, 1997
Respondent: Lenore A. Grant
Bar Number: 003071
Order: Reprimand Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Rita M. Farry, Esq.
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Docket No.: BAR-98-7
Issued by: Supreme Judicial Court
Date: November 2, 1998
Respondent: Rita M. Farry, Esq.
Bar Number: 002794
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. David F. Gould
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Docket No.: BAR-95-3
Issued by: Supreme Judicial Court
Date: May 10, 1995
Respondent: David F. Gould
Bar Number: 001779
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Terrance J. Brennan
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Docket No.: BAR-95-6
Issued by: Supreme Judicial Court
Date: December 26, 1995
Respondent: Terrance J. Brennan
Bar Number: 003429
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Donna L. Zeegers
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Docket No.: BAR-99-4
Issued by: Supreme Judicial Court
Date: November 16, 1999
Respondent: Donna L. Zeegers
Bar Number: 002327
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Andrew R. Puglia
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Docket No.: BAR-98-9
Issued by: Supreme Judicial Court
Date: May 4, 1999
Respondent: Andrew R. Puglia
Bar Number: 007159
Order: Disbarment
Disposition/Conduct: Reciprocal Discipline
Board of Overseers of the Bar v. Geoffrey F. Brown
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Docket No.: BAR-97-4
Issued by: Supreme Judicial Court
Date: May 23, 1997
Respondent: Geoffrey F. Brown
Bar Number: 002756
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Lawrence E. Merrill
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Docket No.: BAR-98-8
Issued by: Supreme Judicial Court
Date: February 1, 1999
Respondent: Lawrence E. Merrill
Bar Number: 000990
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. J. Henry Lyons, III
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Docket No.: BAR-97-5
Issued by: Supreme Judicial Court
Date: 1999-10-25
Respondent: J. Henry Lyons, III
Bar Number: 007263
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Anita M. Volpe, Esq.
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Docket No.: BAR-10-9
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 10, 2010
Respondent: Anita M. Volpe, Esq.
Bar Number: 000913
Order: Suspension
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Conduct involving Dishonesty, Fraud, Deceit, or Misrepresentation; Improper Concealment, Statement or Evidence;
Board of Overseers of the Bar v. Joseph A. Troiano
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Docket No.: Bar-10-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 17, 2010
Respondent: Joseph A. Troiano
Bar Number: 001477
Order: Disbarment Reciprocal Discipline
Disposition/Conduct: Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts; Engage in Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; Engage in Conduct that is Prejudicial to the Administration of Justice
ORDER
On July 30, 2010 the Board of Overseers of the Bar petitioned this Court for an Order of Default in the reciprocal discipline matter filed by the Board in May 2010. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the Florida Supreme Court's Order disbarring Joseph A. Troiano.
On June 14, 2010, Mr. Troiano confirmed by signature his receipt of the Board's certified letter providing him with a copy of the Board's pleadings and this Court's May 26, 2010 Order and Notice to Show Cause why identical discipline should not be imposed in Maine. Thereby, Mr. Troiano accepted service of that certified letter on June 14, 2010 and had thirty (30) days in which to notify this Court of any claim by him that identical discipline in Maine would be unwarranted. Mr. Troiano had defaulted by failing to file any response to this Court's Order and Notice of May 26. 2010.
Upon consideration of the Board of Overseers of the Bar's Motion for Default concerning its Petition for Reciprocal Discipline, and after providing Mr. Troiano an opportunity to be heard. it is hereby ORDERED as follows:
FOR THE COURT
Joseph M. Jabar, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Seth T. Carey
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Docket No.: Bar-08-04 and Bar-08-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 12, 2010
Respondent: Seth T. Carey
Bar Number: 009970
Order: Reinstatement
Disposition/Conduct:
ORDER ON PETITION
Seth T. Carey moves for reinstatement as an attorney in good standing following his suspension from the practice of law by this Court on March 30, 2010 in the matter docketed as BAR-lO-04. A concurrent Order of Suspension with additional conditions was entered in the matter docketed as BAR-DB-IO. Maine Bar Rule 7.3(j)(5) requires a person petitioning for reinstatement to prove by clear and convincing evidence that he has demonstrated the moral qualifications, competency, learning in law required for admission to practice law in this State, and that his reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. The Rule provides numerous factors to be considered in determining whether a petitioner has met his burden including:
These factors are neither exclusive or singularly dispositive and must be viewed in conjunction with any other relevant evidence.
Mr. Carey has not engaged in the unauthorized practice of law since the date of his suspension. He has fully complied with the terms of his disciplinary Orders. There has been no suggestion that he engaged in any other professional misconduct since his suspension.
During the period of his suspension. he has undertaken several educational programs including professional responsibility and substantive law. He has associated himself with a law office in Florida and benefited from mentoring and observation.
Panel D of the Grievance Commission, which initially heard Mr. Carey's Petition for Reinstatement, expressed concern over his testimonial demeanor and lack of insight. The Panel's findings reflect concerns that mirror many of the Court's own observations that lead to the earlier disciplinary Order. However, during his testimony before the Court, Mr. Carey's demeanor was appropriate, although emotional at times, and he expressed insight into his own earlier errors in judgment. He accepts responsibility for his mistakes. He understands the importance of developing core competency and strict adherence to professional ethical standards. The Court is satisfied that Mr. Carey meets the standards for reinstatement to practice.
Accordingly, it is hereby ORDERED that Seth T. Carey be reinstated as an attorney in good standing in the State of Maine effective August 23, 2010.
FOR THE COURT
Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jeffrey J. Fairbanks, Esq.
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Docket No.: GCF# 98-154
Issued by: Grievance Commission
Date: July 12, 1998
Respondent: Jeffrey J. Fairbanks, Esq.
Bar Number: 008150
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Michael I. Montembeau
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Docket No.: Bar-10-02
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 13, 2010
Respondent: Michael I. Montembeau
Bar Number: 009211
Order: Reinstatement Denied
Disposition/Conduct:
ORDER ON PETITION
After review of the record and Report of Panel B, the Petition for Reinstatement of Michael I. Montembeau is hereby denied. The court anticipates that Mr. Montembeau will be filing a subsequent petition for reinstatement in 2011 in accordance with the representations contained in his letter of September 7, 2010.
FOR THE COURT
Andrew M. Mead, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Bernard L. Watson
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Docket No.: BAR 10-12
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 18, 2010
Respondent: Bernard L. Watson
Bar Number: 003946
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Neglect of a Client's Legal Matter; Failure to Timely Respond to Bar Counsel; Conduct Prejudicial to the Administration of Justice; Conflict of Interest: Avoiding Adverse Interest
ORDER OF SUSPENSION
M. Bar R. 7.2(b)
This disciplinary matter is before the Court by the Board of Overseers of the Bar?s information dated June 9, 2010 as filed pursuant to Maine Bar Rule 7.2(b)(1) & (7).
Defendant Bernard L. Watson is from Parsonsfield and has been subject to the Board of Overseers? administrative suspension from practice since October 20, 2009 due to his non-compliance with the annual fee, registration and continuing legal education requirements of the Maine Bar Rules. At all times relevant to this disciplinary matter, he was an attorney admitted to and engaging in the practice of law in the State of Maine still subject to the Maine Bar Rules.
Based upon their comments at a pre-trial conference on September 24, 2010 and the Court?s resulting Order of that date, the parties have agreed to the following stipulated facts and sanction in this multi-count disciplinary matter:
Constance V. Morrison, of Alfred filed a grievance complaint against Watson on January 27, 2009. Watson then filed a written response admitting that he had failed to properly handle Ms. Morrison?s deceased husband?s estate.
Watson agrees that he failed to complete that legal work for Morrison and also initially failed to provide Morrison with her stored file materials. After Watson had been notified by Bar Counsel of Morrison?s grievance complaint, he provided her file materials to her new attorney.
At the preliminary Grievance Commission hearing of January 26, 2010, Watson testified and admitted under oath that he had neglected Morrison?s legal matter, stating that he ??didn?t get it done.? Watson admits that he violated then applicable Maine Bar Rules 3.1(a)(conduct unworthy of an attorney) and 3.6(a)(3)(neglect of a client?s legal matter) in his mishandling of Morrison?s case.
Dawn McAllister, of Parsonsfield filed a complaint on February 27, 2009 concerning Watson?s misconduct.
McAllister had contacted Watson in May 2004 to represent her in a dispute with her brother related to her mother?s estate. The only significant asset in that estate was the decedent?s home. A Medicaid bill totaling approximately $101,500.00 was due to be paid from the estate, along with funeral expenses.
Watson had advised McAllister that because the Medicaid claim would have priority over all but funeral expenses, administrative claims, and a secured MSHA claim on the home, that claim would consume all remaining equity in the property, leaving nothing to distribute to the heirs.
McAllister sold the estate?s home for approximately $45,500.00 net proceeds. In the spring of 2006, Watson indicated to McAllister that she should mail the check to him, he would deposit it in his trust account and would then pay the estate?s outstanding funeral expense from that amount. Watson failed to pay that funeral bill until being reminded by McAllister to do so later in August of that year.
Due to his frequent absence from Maine for certain periods, McAllister had not always been able to readily contact Watson.
McAllister also learned that Maine Care had not received any monies from the sale of her mother?s home, in partial satisfaction of the debt owed to it by the estate. Maine Care?s agent was initially unable to reach Watson (who had the estate?s money in his trust account) and learned that his law office was no longer located in Limerick, Maine.
The agent eventually found Watson who then contacted McAllister, assuring her that he would prepare an accounting of the monies from the house sale that had been placed in his trust account. Watson indicated that he would do so upon his return to his home in Parsonsfield where his clients? files were located. Watson failed to prepare an accounting, however, contrary to what he had promised. As a result, McAllister and the agent unsuccessfully tried to contact Watson. McAllister then filed her grievance complaint with the Board alleging that Watson had neglected her legal matter.
Bar Counsel notified Watson of this grievance matter by letter dated March 4, 2009. Watson?s written response was due by March 26, 2009 but he failed to respond. By letter dated April 14, 2009, Bar Counsel informed Watson that the Board had not received his response to McAllister?s grievance matter. Watson eventually filed a response on May 12, 2009 then initially denying that he had neglected Ms. McAllister?s legal matter.
Attorney Watson then contacted Ms. McAllister and apologized for not completing the accounting. He eventually finished the accounting, and disbursed the remaining funds per McAllister?s instructions. Watson agrees that the accounting was not completed by him until after he knew McAllister had filed her grievance complaint against him. McAllister and Maine Care later came to an agreement and settled the estate?s obligations to Maine Care.
In his May 12, 2009 response to McAllister?s grievance, Watson stated that a personal family emergency had distracted and prevented him from being able ?? to function properly,? i.e. to complete the legal work on McAllister?s case or file a response to her grievance.
At that January 26, 2010 Grievance Commission disciplinary hearing, Watson agreed and testified under oath that he ??should have gotten in touch with (Ms. McAllister) at some point and didn?t.?
He also testified and admitted that he very well could have told McAllister he was going to send a check to Mr. Bolduc (the funeral home), but just lost track of that promise and obligation. Watson also admitted in his testimony and now agrees he should have earlier responded to Bar Counsel?s inquiry in McAllister?s grievance matter. Watson also testified and admits that for more than two and one-half years, i.e. from August 3, 2006 to March 16, 2009, he did no legal work on McAllister?s matter.
Furthermore, his testimony also confirmed that at the same time that he had neglected and failed to answer McAllister?s grievance complaint, he nevertheless then prepared a fee invoice for McAllister dated March 16, 2009 in the amount of $2,194.65.
Finally, Watson then testified that ??(he) should have done a better job (in the McAllister matter).?
Watson agrees that in the McAllister matter he violated the following then applicable Maine Bar Rules: 2(c)(failure to timely respond to Bar Counsel); 3.1(a)(conduct unworthy of an attorney); 3.2(f)(1)(violation of the Maine Bar Rules); 3.2(f)(4)(conduct prejudicial to the administration of justice); and 3.6(a)(3)(neglect of a client?s legal matter).
Due to his failure to properly comply with Maine Bar Rules 6, 10 and 12, Watson was administratively and summarily suspended from practice by the Board of Overseers of the Bar effective October 20, 2009. As a result of that suspension, Watson failed to file the notice affidavit as required under Maine Bar Rule 7.3(i)(2).
On or about February 23, 2010 Watson was notified that his failure to file that affidavit had resulted in Bar Counsel?s docketing of a sua sponte grievance complaint against him.
Watson responded by letter of March 8, 2010 admitting he had failed to file that affidavit. He admitted in his testimony at the January 26, 2010 hearing that as of that hearing date, he had not yet filed that affidavit.
On April 21, 2010 Watson finally executed and filed such an affidavit with the Board.
Watson agrees that his conduct in this matter violated the following Maine Bar Rules: 3.1(a)(conduct unworthy of an attorney); 3.2(f)(1)(violation of the Maine Bar Rules); and 7.3(i)(2)(A)(B)(failure to file the required notification affidavit) as well as Maine Rules of Professional Conduct 8.4(a)(violation of the Maine Bar Rules); and 8.4(d)(conduct prejudicial to the administration of justice).
While the Court appreciates Watson?s current contrition and admission of his serious professional misconduct, his actions harmed two clients as well as the legal profession and must receive a significant sanction. In that regard, although he states that he currently has no intention to return to the active practice of law, should he later decide to do so it is imperative that the public be protected by the Court?s use of the reinstatement hearing process under M. Bar R. 7.3(j). Accordingly, it is HEREBY ordered that effective immediately that Bernard L. Watson shall receive a disciplinary suspension for his violation of the above-stated Maine Bar Rules, as follows:
Finally, Bar Counsel may file a disciplinary information directly with the Court without any Grievance Commission review or hearing concerning any new complaint(s) of professional misconduct allegedly committed by Watson at any time but not received by the Board of Overseers until after the date of this Order.
FOR THE COURT
Jon D. Levy, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles G. Williams, III
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Docket No.: CUM-10-275
Issued by: Maine Supreme Judicial Court
Date: November 23, 2010 On Briefs: October 21, 2010
Respondent: Charles G. Williams, III
Bar Number: 008827
Order: Decision Affirmed Reinstatement Reinstatement Denied
Disposition/Conduct:
PETITION OF CHARLES G. WILLIAMS III FOR REINSTATEMENT TO THE BAR OF THE STATE OF MAINE
[?1] Charles G. Williams III appeals from the decision of a single justice of the Maine Supreme Judicial Court (Alexander, J.) denying his petition for reinstatement to the bar. Williams, who was disbarred in 2004, challenges the procedural process by which the court considered the petition, as well as the sufficiency of the evidence supporting its denial. We affirm the judgment.
[?2] The following facts are largely undisputed. Williams was admitted to practice law in Maine in April of 1999. In April of 2002, Williams?s right to practice was suspended indefinitely, and in April of 2004, Williams was disbarred for numerous and repeated ethical violations based on evidence that he: forced a former client to engage in unwanted sexual acts; failed to attend client appointments and court proceedings; failed to file necessary court documents; failed to communicate with clients, opposing counsel, and the courts; failed to respond to requests from the Board of Overseers, bar counsel, and the Fee Arbitration Commission; disclosed confidential client information to third parties; charged excessive fees; failed to pay various vendors who provided services to his legal practice; took money from clients, but then failed to perform the attendant work; and caused the Lawyers? Fund for Client Protection to pay $24,275.89 in claims filed by former clients.1
[?3] In October of 2009, Williams petitioned the Maine Supreme Judicial Court for reinstatement pursuant to M. Bar R. 7.3(j)(5).2 Following a testimonial hearing, the Grievance Commission of the Board of Overseers issued findings and a recommendation that the petition be denied. Over Williams?s objection, the Board adopted the Commission?s findings and recommendation.
[?4] By decision dated May 10, 2010, the court denied Williams?s petition for reinstatement. It found that Williams continues to misunderstand and blame others for his ethical violations, cite unsupported allegations of prejudice against him, and minimize the harm he caused to his clients, and has still failed to explain how or why his previous ethical lapses occurred. In its order, the court noted that Georgia had revoked Williams?s teaching certificate in 2007 because Williams failed to disclose the fact of his disbarment in Maine. The court found that Williams ?does not appear to truly accept that his conduct was seriously wrong and . . . does not appear to recognize and address the conduct?neglect, financial impropriety, and abuse of clients and their cases?that was the cause of his disbarment.? Williams appeals.
[?5] It is within our authority to regulate attorneys and the practice of law in Maine; we have delegated some of that authority to the Board of Overseers to develop a record and issue recommendations in reinstatement proceedings. M. Bar R. 7.3(j)(5), (6); Bd. of Overseers of the Bar v. Campbell, 539 A.2d 208, 209 (Me. 1988). Certainly this process must comport with due process requirements. Schware v. Bd. of Bar Exam?rs of N.M., 353 U.S. 232, 238 39 (1957); Bd. of Overseers of the Bar v. Lefebvre, 1998 ME 24, ? 15, 707 A.2d 69, 73; see In re Richard E., 2009 ME 93, ? 18, 978 A.2d 217, 221 (stating that whether a litigant?s right of due process has been maintained is an issue of law reviewed de novo). We have said that such due process in the regulation of attorneys through the Board of Overseers consists of notice of the proceedings and an opportunity to be heard, including the right to confront and cross-examine witnesses. Lefebvre, 1998 ME 24, ? 15, 707 A.2d at 73; Bd. of Overseers of the Bar v. Dineen, 557 A.2d 610, 613 (Me. 1989).
[?6] Contrary to Williams?s contentions, the process undertaken in his reinstatement proceedings comported with these due process requirements. Williams filed a petition for reinstatement pursuant to M. Bar R. 7.3(j)(5). Because bar counsel opposed the petition, the matter was referred to the Commission for a hearing. See M. Bar. R. 7.3(j)(5). In that hearing, it was Williams?s burden to present ?clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State,? as well as evidence establishing that ?reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.? M. Bar R. 7.3(j)(5); accord In re Application of Hughes, 594 A.2d 1098, 1101 (Me. 1991). Rule 7.3 also enumerates the factors to be considered in determining whether that burden is met:
(A) The petitioner has fully complied with the terms of all prior disciplinary orders;
(B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;
(C) The petitioner recognizes the wrongfulness and seriousness of the misconduct;
(D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment;
(E) The petitioner has the requisite honesty and integrity to practice law;
(F) The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine . . . .
M. Bar R. 7.3(j)(5). In an effort to satisfy his burden, Williams presented his own testimony during the hearing, as well as that of four additional witnesses.
[?7] After considering all of the evidence presented during the hearing, the Commission transmitted to the Board and to Williams a written report containing its findings and its recommendation that Williams?s petition be denied. See M. Bar R. 7.3(j)(6). Over Williams?s objection, the Board adopted the findings and the recommendation of the Commission and filed the developed record with the court. See M. Bar R. 7.3(j)(6).
[?8] Pursuant to this Court?s order assigning the matter to a single justice for decision, the court then properly reviewed the matter de novo based on the record already fully developed before the Commission and the Board. See Bd. of Overseers of the Bar v. Sylvester, 650 A.2d 702, 703 (Me. 1994). Pursuant to M. Bar R. 7.3(j)(6), the court declined to conduct an additional testimonial hearing, a decision to which Williams did not object. The court did, however, invite the parties to submit additional briefing based on the developed record. The court then completed a thorough de novo evaluation of the evidence presented at the hearing, as well as Williams?s own submissions supporting his reinstatement, including his petition for reinstatement and accompanying personal statement.
[?9] The court complied fully with all procedural requirements of Rule 7.3(j). At every stage in the proceedings, Williams was provided with both notice and an opportunity to be heard; in fact, the Commission accommodated Williams?s geographic and financial limitations by allowing him and his witnesses to testify via telephone from Georgia. Williams was permitted to, and did, fully participate in and defend himself at each stage of the proceeding, and has pointed to no specific evidence or legal argument he was precluded from presenting or developing.3 The court reviewed the record independently to arrive at each finding as well as its own conclusion.
[?10] As the unsuccessful party with the burden of proof at the trial level, Williams can prevail in his factual challenge to the decision only if he can establish that the court was compelled to find in his favor. Ma v. Bryan, 2010 ME 55, ? 6, 997 A.2d 755, 758. We discern no such compulsion here. The court issued a detailed and thoughtful decision in which it analyzed each of the factors relevant to reinstatement as set out in Rule 7.3(j)(5). The court?s findings?that Williams has not adequately demonstrated his understanding of and remorse for his acts because his ?fixation on his self image as ?the focus of the civil rights movement in Maine?? caused him to ignore or minimize the actual misconduct that led to his disbarment, that he made untruthful statements in an application to obtain a higher level of teaching certificate in Georgia and thus Williams failed to establish that he has not engaged in professional misconduct since his disbarment, and that Williams therefore constitutes a risk to the integrity of the bar?are amply supported by Williams?s testimony and the personal statement accompanying his petition for reinstatement.
[?11] Although Williams presented the testimony of several witnesses, in addition to his own testimony, in support of his petition for reinstatement, the court was tasked with evaluating the weight and credibility of that testimony and was not required to believe any of that evidence, even though the Board did not introduce any contradictory evidence or witnesses of its own. See Dionne v. LeClerc, 2006 ME 34, ? 15, 896 A.2d 923, 929. The court acted well within its substantial discretion in denying Williams?s petition. See Dineen, 557 A.2d at 613-14.
The entry is:
Judgment affirmed.
FOR THE COURT
Panel: SAUFLEY, C.J., and LEVY, MEAD, GORMAN, and JABAR, JJ.
FOR THE PETITIONER
Charles G. Williams, III
ATTORNEY FOR THE BOARD OF OVERSEERS OF THE BAR
J. Scott Davis, Esq.
Footnotes
1 We dismissed Williams?s appeal of his disbarment in July of 2005 for want of prosecution.
2 An attorney may seek reinstatement no sooner than five years after disbarment. M. Bar R. 7.3(j)(1).
3 We need not address Williams?s lengthy contention regarding the application of summary judgment pleading principles to the established facts because no such summary judgment was sought or granted; the court considered Williams?s petition based on the testimonial hearing and Williams?s own submissions, and completed its own fact-finding. Williams was well aware of the facts and issues that the court would consider in making its decision, i.e., any portion of the record relevant to the factors set out in M. Bar R. 7.3(j)(5). Neither did the court improperly consider the revocation of Williams?s teaching certificate in Georgia. The court considered the fact of that revocation, which Williams did not dispute, as evidence of professional misconduct that occurred since the disbarment.
Board of Overseers of the Bar v. Andrew J. Doukas
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Docket No.: BAR-10-13
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 2, 2010
Respondent: Andrew J. Doukas
Bar Number: 002932
Order: Suspended Suspension
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Conflict of Interest: Avoiding Adverse Interest
AMENDED DECISION AND ORDER
This matter came before the Court pursuant to M. Bar R. 7.2(b)(1) upon the filing of an Information by the Board of Overseers of the Bar. Bar Counsel J. Scott Davis, Esq. represented the Board and Andrew J. Doukas, Esq. represented himself at the November 16, 2010, hearing.
The Court heard testimony from Steven D. Silin, Esq., William J. Sengel, Andrew J. Doukas, Esq., and Lee Anne Graybeal, Esq. regarding Bar Counsel?s claim of bar violations. The Court also received exhibits from Bar Counsel. After hearing the testimony and reviewing the exhibits the Court finds the following facts:
The Court finds that missing a statute of limitations does not necessarily violate a bar rule. However, here Mr. Doukas violated Bar Rule 3.6 because of the gross negligence involved in his handling of this matter. He also violated 3.4(f)(B) because he did not inform Mr. Sengel in writing that he should obtain an opinion of other counsel before he entered into the settlement agreement and loan with Mr. Doukas.
Mr. Doukas recognized early on in the grievance procedure that he had made some serious mistakes regarding the handling of Mr. Sengel?s matter. He was very frank with the Court indicating that he realized he did not handle the file appropriately and that he was at fault in missing the statute of limitations. He also was sincere in his concern as a result of his missing the statute of limitations. However, Mr. Doukas did not recognize throughout the hearing with this Court the level of his serious misevaluation of the file by not recognizing that Mr. Sengel had a much more serious claim than he would acknowledge. Mr. Doukas took a very casual approach to this file and to the manner in which he settled the matter with his client. This Court is very concerned about Mr. Doukas?s capability to handle tort claims. The Court notes that the Board of Overseers of the Bar has never disciplined Mr. Doukas. The Court further notes that the bar rules Mr. Doukas violated are a prior version of the existing bar rules but were in effect at the appropriate times.
As a result of these bar violations, the Court makes the following order:
a. Mr. Doukas shall obtain continuing legal education credits in the tort and litigation area in the amount of six hours before April 30, 2011. Bar Counsel shall approve these credits in advance.
b. Mr. Doukas shall employ qualified co-counsel on any tort matter he handles.
c. Mr. Doukas shall confer with William Nugent of the Maine Assistance Program regarding the organization of his practice.
d. Mr. Doukas shall be required to complete two hours of ethics credit by April 30, 2011. Bar Counsel shall approve these credits in advance.
e. In the event Mr. Doukas meets the requirements of subsections a through d above the suspended suspension shall continue. In the event Mr. Doukas does not meet the requirements then he shall be suspended from the practice of law from May 1, 2011 through May 31, 2011. However, the requirement of section 2(b) above shall remain in effect as long as Mr. Doukas practices law.
Mr. Doukas has many worthy attributes as an attorney. He successfully handles low-cost domestic relations and family matters and has done so for many years. The Court has fashioned a penalty in this matter which if Mr. Doukas cooperates allows him to practice law at a higher level and protect his clients from any further violation of the bar rules.
FOR THE COURT
Warren M. Silver, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Andrew J. Doukas
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Docket No.: BAR-10-13
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 30, 2010
Respondent: Andrew J. Doukas
Bar Number: 002932
Order: Suspended Suspension
Disposition/Conduct: Conduct During Representation: Standards of Care and Judgment; Conflict of Interest: Avoiding Adverse Interest
DECISION AND ORDER
This matter came before the Court pursuant to M. Bar R. 7.2(b)(1) upon the filing of an Information by the Board of Overseers of the Bar. Bar Counsel J. Scott Davis, Esq. represented the Board and Andrew J. Doukas, Esq. represented himself at the November 16, 2010, hearing.
The Court heard testimony from Steven D. Silin, Esq., William J. Sengel, Andrew J. Doukas, Esq., and Lee Anne Graybeal, Esq. regarding Bar Counsel?s claim of bar violations. The Court also received exhibits from Bar Counsel. After hearing the testimony and reviewing the exhibits the Court finds the following facts:
The Court finds that missing a statute of limitations does not necessarily violate a bar rule. However, here Mr. Doukas violated Bar Rule 3.6 because of the gross negligence involved in his handling of this matter. He also violated 3.4(f)(B) because he did not inform Mr. Sengel in writing that he should obtain an opinion of other counsel before he entered into the settlement agreement and loan with Mr. Doukas.
Mr. Doukas recognized early on in the grievance procedure that he had made some serious mistakes regarding the handling of Mr. Sengel?s matter. He was very frank with the Court indicating that he realized he did not handle the file appropriately and that he was at fault in missing the statute of limitations. He also was sincere in his concern as a result of his missing the statute of limitations. However, Mr. Doukas did not recognize throughout the hearing with this Court the level of his serious misevaluation of the file by not recognizing that Mr. Sengel had a much more serious claim than he would acknowledge. Mr. Doukas took a very casual approach to this file and to the manner in which he settled the matter with his client. This Court is very concerned about Mr. Doukas?s capability to handle tort claims. The Court notes that the Board of Overseers of the Bar has never disciplined Mr. Doukas. The Court further notes that the bar rules Mr. Doukas violated are a prior version of the existing bar rules but were in effect at the appropriate times.
As a result of these bar violations, the Court makes the following order:
a. Mr. Doukas shall obtain continuing legal education credits in the tort and litigation area in the amount of six hours before April 30, 2011. Bar Counsel shall approve these credits in advance.
b. Mr. Doukas shall employ qualified co-counsel on any tort matter he handles.
c. Mr. Doukas shall confer with William Nugent of the Maine Assistance Program regarding the organization of his practice.
d. Mr. Doukas shall be required to complete two hours of ethics credit by April 30, 2011. Bar Counsel shall approve these credits in advance.
e. In the event Mr. Doukas meets the requirements of subsections a through d above the suspended suspension shall continue.
Mr. Doukas has many worthy attributes as an attorney. He successfully handles low-cost domestic relations and family matters and has done so for many years. The Court has fashioned a penalty in this matter which if Mr. Doukas cooperates allows him to practice law at a higher level and protect his clients from any further violation of the bar rules.
FOR THE COURT
Warren M. Silver, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anita M. Volpe, Esq.
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Docket No.: BAR-10-9
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 13, 2011
Respondent: Anita M. Volpe, Esq.
Bar Number: 000913
Order: Final Order
Disposition/Conduct:
FINAL ORDER
On January 11, 2011, Anita M. Volpe notified this Court that she had completed six hours of continuing legal education on the subject of professional ethics. On the same date, Bar Counsel Scott Davis notified this Court that those hours were approved by his office, and that Attorney Volpe had complied with the terms of the Order dated August 10, 2010. Therefore, Attorney Volpe's right to practice law shall NOT be suspended as of January 14, 2011.
FOR THE COURT
Ellen A. Gorman, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Chris A. Nielsen, Esq.
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Docket No.: GCF-09-390
Issued by: Grievance Commission
Date: December 4, 2010
Respondent: Chris A. Nielson, Esq.
Bar Number: 009739
Order: Reprimand
Disposition/Conduct: Duties to Prospective Client; Communications Concerning a Lawyer's Services; Advertising; Communication of Field of Practice and Specialization; Misconduct
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On December 13, 2010, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Chris A. Nielsen, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 30, 2010.
At the proceeding, Attorney Nielsen was represented by Attorney James M. Bowie, and the Board was represented by Assistant Bar Counsel Aria Eee. Complainant S. G. of Portland, Maine was not present for the hearing but Bar Counsel had provided her with a copy of the parties? proposed stipulated sanction Report in advance of the proceeding. Ms. G. subsequently confirmed her agreement with the content of that proposed Report and thereby elected to not attend the proceeding.
Prior to the disciplinary proceeding, the parties submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Chris A. Nielsen, Esq. of Biddeford, County of York, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Nielsen was admitted to the Maine Bar in October 2004 and he is currently registered as an active Maine attorney.
On November 8, 2009 Ms. G. filed a complaint against Attorney Nielsen based upon his unsolicited mailing to her of a letter urging her to retain his legal services. Ms. G. emphasized her upset and distress at Attorney Nielsen?s errant mailing, as it was clear Ms. G. had neither been arrested nor in need of criminal defense.
Attorney Nielsen agrees that before sending his letter to Ms. G. he should have made certain that she was the one listed in the newspaper. He acknowledges that any person wrongly-identified as a ?drunk driver? would likely find his mailing disturbing and offensive. In that regard, Attorney Nielsen acknowledges that his communication served to unnecessarily upset and distress Ms. G., in violation of M. R. Prof. Conduct 1.18; 7.1, 7.2, 7.4(d); and 8.4(a),(d). Finally, during the course of Bar Counsel?s processing of this complaint matter, it became necessary to clarify certain information submitted by Attorney Nielsen. While responding to questions concerning his firm?s various websites and his advertised qualifications, Attorney Nielsen failed to ensure that the information he provided to Bar Counsel was consistent and entirely accurate.
Though unintentional, Attorney Nielsen now agrees that his behavior in that regard constituted violations of M. R. Prof. Conduct 8.4(a) and (d).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients, the courts and members of the public. Due to Attorney Nielsen?s actions, a member of the public was wrongly frightened into thinking she was in need of criminal defense representation. Moreover, Bar Counsel has made clear that from his view, Nielsen?s responses to the complaint matter were not complete or entirely straightforward, a position with which Mr. Nielsen disagrees.
Attorney Nielsen has expressed his remorse for the mailing and the miscommunications. He has addressed the concerns about the certifications advertised on his prior firm?s website and ended his use of that advertising and the correspondence which might lead recipients to become alarmed as Ms. G. did in this instance. Attorney Nielsen assured the Panel he is intent on avoiding in the future the outcome which occurred with his mailing to Ms. G.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. At the disciplinary proceeding, Attorney Nielsen apologized for his actions toward Ms. G. and expressed his remorse for his violations of the Maine Rules of Professional Conduct. Assistant Bar Counsel Eee confirmed for the Panel that Attorney Nielsen has no prior sanction record with the Board of Overseers of the Bar. Nevertheless, since the evidence of his misconduct in this instance supports a finding and Attorney Nielsen agrees he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that its issuance of a public reprimand of him should serve to adequately protect the public.
Therefore, the Panel accepts the agreement of the parties, including Attorney Nielsen?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand of Attorney Christopher A. Nielsen, which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Parties
Aria Eee, Assistant Bar Counsel
Chris A. Nielsen, Esq.
James M. Bowie, Esq.
For the Grievance Commission
David S. Abramson, Esq., Panel Chair
Martica A. Douglas, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. David E. Warren; James Kilbreth, III; Eric D. Altholz; Mark K. Googins; Roger A. Clement, Jr.; Juliet T. Browne
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Docket No.: Bar-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 29, 2010
Respondent: David E. Warren; James Kilbreth, III; Eric D. Altholz; Mark K. Googins; Roger A. Clement, Jr.; Juliet T. Browne
Bar Number: 002695; 002891; 007289; 002985; 007421; 008261
Order: Dismissal
Disposition/Conduct: None
FINDINGS, CONCLUSIONS AND ORDER
This matter is before the Court for decision, after hearing, on an Information filed by the Board of Overseers of the Bar on September 2, 2010. The Information alleges that the six named respondents committed violations of Maine Bar Rule 3, the Code of Professional Responsibility, related to their alleged failure to investigate, discover, report, and mitigate (1) losses to the firm of Verrill Dana and clients of the firm, and (2) misconduct of a former partner, who committed thefts from the firm and from clients of the firm.
The thefts from clients and the firm occurred over a period of nearly ten years, from September 1997 to January 19, 2007. The ethical violations allegedly occurred between June 2007 and November 2, 2007. During this period, ethical obligations of Maine attorneys were established in the Code of Professional Responsibility, Maine Bar Rule 3, which has been replaced by the Maine Rules of Professional Conduct, effective August 1, 2009.
In bar disciplinary actions before this Court, the Board of Overseers of the Bar has the burden to prove ethical violations by a preponderance of the evidence. M. Bar R. 7.2(b)(4). The Court?s review of the evidence is de novo, without deference to any findings or recommendations by the Board or a Grievance Commission panel. M. Bar R. 7.2(b)(3); see also Bd. of Overseers of the Bar v. Dineen, 481 A.2d 499, 502 (Me. 1984).
That being said, it is important to note that, in this case, there are few material facts that are really in dispute. Rather, the issues for the Court to decide in relation to the alleged ethical violations are whether, based on the facts as the respondents knew or believed those facts to be, they had ethical obligations to initiate a more prompt and thorough investigation of the facts and to report those facts to the Board more promptly than occurred in this case.
The Bar Rules do not directly specify the standards by which allegations of ethical violations must be evaluated. However, those standards are suggested in various interpretive aids explaining the Rules and Amendments to the Rules. Thus, the Reporter?s Notes addressing the reporting obligation established in Rule 3.2(e)(1), a central issue in this case, indicate that ?the duty of disclosure extends to knowledge of a violation of any of the Bar Rules,? and that the two paragraphs of the Rule ?treat knowledge subjectively and neither imposes any duty to investigate.?1 An Advisory Committee Note to a 1984 amendment to Rule 3.2(e)(1) notes that, with the amendment, ?only violations raising a substantial question of professional fitness need be reported,? and that ?[a] measure of judgment is, therefore, required in complying with the provisions of the new rule.?2
The Preamble from the Maine Task Force on Ethics that introduces the new Maine Rules of Professional Conduct also provides some useful guidance. While the Preamble and the Rules of Professional Conduct were not in effect at the time of the violations alleged here, paragraph 19 of the Preamble reflects and continues the previously existing standards for evaluation of allegations of ethical violations. Thus paragraph 19 of the Preamble states:
Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose disciplinary assessment of a lawyer?s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
The Information alleges that the following provisions of the Code of Professional Responsibility were violated by one or more of the attorneys who are subject to the Information:
The Information alleges violation of two other Bar Rules. However, the Board?s post-hearing brief indicates that, after consideration of the evidence, the Board is not seeking a finding of a violation of Bar Rule 3.6(i), which requires that a lawyer who knows or should know that the lawyer?s opinion or advice may be communicated to a person who was not a client of the lawyer take reasonable steps to prevent that other person from believing that the lawyer represents that person?s interests. The Board?s brief also indicates that it is not seeking a finding of a violation of Bar Rule 3.13(b)(1) which states that a lawyer is bound by the Code of Professional Responsibility notwithstanding the fact that the lawyer acted at the direction of another person. Those issues are not addressed further in this decision.
There are two other issues that have been raised in some of the materials filed with the Court or in complaints filed against the respondents that are not supported by the evidence, and will not be addressed further in this decision. First, there is no credible support for any claim that, in accepting and placing into a Verrill Dana partnership account a payment of funds for checks written from the Janice Thomas estate account, any respondent committed, approved, or ratified a criminal or illegal act by taking what he or she knew or believed to be client funds and converting those funds to the firm?s use.
Second, there is no credible support for any claim that Ellie Rommel was terminated from, or refused the opportunity to return to, her position at Verrill Dana in retaliation for her reporting to Verrill Dana attorneys the misappropriation of funds that led to this Information. In fact, Rommel?s testimony in this proceeding and e-mails that she sent after conversations with David Warren are contrary to such a position. The evidence establishes that Rommel was invited to return to Verrill Dana and declined for personal reasons and because of discomfort with the prospect of occasional, incidental contact with John Duncan.
The Court finds the following facts, based on the testimony and exhibits admitted into evidence.
At all times material to this case, John Duncan was a partner at Verrill Dana. He was widely respected throughout the firm as an individual of unquestioned?at the time?honesty and integrity and one who often assumed firm-wide responsibilities, serving as a ?bridge? between various groups in the firm because of his personal style and firm-wide respect. Duncan also was involved in a number of activities in the greater Portland community and was widely respected in those community activities. Duncan had joined Verrill Dana out of law school in 1978 and, until the revelations that gave rise to this case, was viewed in the firm and the community at large as a person above reproach.
Between late 1997 and January 19, 2007, on many occasions, Duncan committed thefts of funds from the firm and from clients of the firm. He accomplished this using his authority as a fiduciary, trustee, or power of attorney on various client accounts to write checks on those accounts to himself, mostly, purportedly, for fees due to the firm for his work on the accounts. In many instances, however, checks were written when no attorney services had been performed or the amount of fees charged to the accounts was significantly excessive in relation to the legal services performed. In some instances, the fees reflected in checks written by Duncan to himself bore some relation to the services he had performed for the client or the account.
The Verrill Dana partnership agreement required that all such fees earned or payments from clients in connection with legal services?at least those services performed by Duncan?be paid into Verrill Dana partnership accounts. Duncan did not pay these fees into Verrill Dana partnership accounts, although check registers he prepared indicated payments to Verrill Dana rather than to himself.
Duncan was an attorney in Verrill Dana?s private clients group, formerly, the trusts and estates group, where his principal responsibilities were administering and providing legal services to trusts? and estates? accounts. For some period of time, Duncan had headed up this division of Verrill Dana. However, by 2007, another attorney, Kurt Klebe, was the head of the private clients group.
In 2005 and 2006, Verrill Dana was developing some new practices to assure better oversight of funds managed by the private clients group. These practices were gradually applied to client accounts, but had not been applied to the accounts from which Duncan misappropriated funds. The new practices included a requirement that there be two signatures on checks written on client accounts, and more centralized practices for billing and collections that would have assured greater oversight and accountability of what was billed and paid for legal services. Had these procedures been applied to the accounts from which Duncan improperly removed funds, the improprieties could not have occurred without immediate detection.
Verrill Dana practices in 2006 and 2007 for supervising and training attorneys and encouraging attorneys to keep current with ethical requirements and developments in the law were consistent with common practice in the Maine legal community for law firms having significant numbers of partners and associates.
In late 2006, a Verrill Dana paralegal, reviewing a bank statement, noted a discrepancy between the check register for an account managed by Duncan for Janice Thomas and the bank statement of that account. The check register indicated a payment to Verrill Dana. The bank statement, with a copy of the face of the check appearing on the back, indicated a payment to Duncan.
This paralegal had been filling in for Ellie Rommel, the regular secretary for Duncan in the private clients group. Rommel also was the secretary to another attorney working in the private clients group, Gregory L. Foster. Foster was a counsel to the firm and usually worked in the office two days each week. Rommel had a very good professional relationship with, and high respect for, both Duncan and Foster.
In January 2007, the paralegal told Rommel of the discrepancy she had discovered between the check register and the bank statement. Rommel was extremely surprised by this disclosure. She assumed, initially, that the discrepancy would be based on an error in entry and not indicative of any impropriety. She then checked banks statements against the check registers going back to 2003. Over that period, she discovered fourteen checks that Duncan, using his power of attorney authority, had written to himself from the Janice Thomas account. The check registers indicated that each of these checks had been written to Verrill Dana. The faces of the checks were reproduced on the bank statements. Therefore, confirming the party to whom the check was written, and comparing it with the check register, was a relatively simple process.
Rommel was shocked and greatly disturbed by this discovery. To her, it appeared that Duncan had been embezzling funds from the Janice Thomas account. However, considering Duncan?s impeccable reputation in the firm, and his very good professional relationship with her, Rommel hoped that there would be some legal and proper explanation for these discrepancies. She was unsure, however, to whom she should disclose her discoveries, to seek an explanation.
She decided that she did not want to seek an explanation directly from Duncan because the facts, in her mind, looked like he had committed crimes. Duncan had been having some other health issues at the time, and Rommel was concerned that if she was correct that these facts indicated embezzlement, and they were disclosed, Duncan might be driven to suicide, a tragic event in itself, and one that would have tragic consequences for Duncan?s family and the firm.
Knowing these facts, and having no one to discuss them with, was a cause of considerable anxiety and stress for Rommel, making it more difficult to confidently do her job and live her life. These difficulties were enhanced when she observed that Duncan was viewing pornographic materials on his computer, sending and receiving e-mails with a sexual content, in violation of firm policy, and engaging in an affair out of the office with another individual at times when Rommel was aware that Duncan was billing some clients for time spent on their accounts.
Over several months, Rommel?s stress level and anxiety grew as she knew, but did not disclose, this information. In May, Rommel resolved to leave the firm and gave notice that her last day would be June 15, 2007.
Rommel also began seeing a therapist. The therapist advised Rommel that she needed to disclose the information to someone for her own good and peace of mind and for the good of the firm.
Ultimately, in early June 2007, Rommel disclosed what she knew to Greg Foster. She made the disclosure by meeting with Foster, advising him that she believed that Duncan was improperly writing checks to himself from the Janice Thomas account, and giving Foster a file of the materials that she had gathered comparing the bank statements and the check registers. She stated that she believed that Duncan was embezzling money from the client.
Like Rommel, Foster was extremely surprised by the disclosure and, in light of Duncan?s impeccable reputation within firm and in the community, assumed that there would be a rational and proper explanation for the information that he had received regarding the Thomas account.
Foster promptly reported the disclosures about the Thomas account and the supporting documentation to David Warren.
Warren was the managing partner of Verrill Dana and had been so since 1994. Warren was admitted to the Bar in 1979. He had joined the firm from another firm as a partner in 1989 and had known Duncan since joining the firm. Warren had attended the same college as Duncan, but knew Duncan, who was a year or two ahead of Warren, only slightly in college. Although Duncan and Warren worked in different groups at the firm, they had worked together on some matters of firm-wide interest, particularly when Duncan had chaired the executive committee and the compensation committee and chaired the private clients group. Warren and Duncan did not have a social relationship outside the firm.
Like Rommel and Foster, Warren was shocked by the information and, in light of Duncan?s impeccable reputation and long time with the firm, assumed that there must be some rational explanation, most likely that Duncan, while writing checks to himself, had then transferred the money to the firm as required by the partnership agreement.
Warren promptly initiated further inquiries to obtain from the bank copies of the backs of the checks in question, which would include the endorsements on the checks and the accounts that the checks were paid into. Warren also obtained the most recent annual spreadsheet for the account, showing activity in the account in 2006.
Upon obtaining this information, Warren learned that the endorsements on the checks transferred funds to an account at the same bank that was not a Verrill Dana account. Warren also learned that a total of $77,500 had been paid from the account to Duncan between 2003 and 2007.
At the time, Warren knew that there were a few accounts managed by Verrill Dana from which attorneys had authority to write checks to themselves that were not turned over to the firm, and he knew that such authority might attach to certain conservator accounts. However, he was not aware that Duncan had any authority to write checks to himself, not to be turned over to Verrill Dana, from the accounts that Duncan managed.
Following this investigation, Warren met with Rommel on June 13, 2007. At this meeting, he thanked her for providing this information and indicated that he would be addressing the matter appropriately with Duncan. Rommel testified that Warren complimented her, stating that her actions ?took a lot of courage.? They also discussed Rommel?s status with the firm, whether Rommel might qualify for disability payments, and whether she should rescind her resignation. There are differences in the testimony regarding the extent to which the issues of disability payments and rescinding the resignation were of significance in the discussion. However, as the parties recognized at closing argument, these differences are not material to the issues the Court must resolve.
The outcome of the June 13 meeting was that Rommel?s resignation was not rescinded, there was a commitment to explore the issue of whether disability payments would be pursued further, and because of her emotional state, Rommel was excused from having to appear at the firm for her last two scheduled days of work. Warren also advised Rommel that, although she was leaving the firm, he would keep her apprised of developments relating to Duncan.
That day or the next, Warren advised James Kilbreth, the chair of the firm?s executive committee, of what he had learned. Like Foster and Warren, Kilbreth was very surprised when he heard of Duncan?s apparent diversion of firm funds.
After his discussion with Kilbreth, Warren resolved to confront Duncan regarding the information that he had. During the next two weeks, Warren was out of the office a considerable period of time, principally for work in Boston relating to opening a Boston office. Duncan was also out of the office some of the time. Warren did not want to schedule a meeting in advance, but instead wanted to drop in on Duncan spontaneously when both were in the office.
That occurred early in the morning of June 28, 2007. At that meeting, after exchanging pleasantries, Warren asked Duncan, ?John, tell me about Janice Thomas?? Duncan responded that Thomas was a long-term client and friend. After a pause, Duncan responded further, stating, ?I?ll pay it all back.? In response to other questions by Warren, Duncan indicated that: (1) the funds at issue, $77,500, were the only funds he had misapplied; (2) no other account he managed had been subject to any improprieties; and (3) the funds represented fees, in an appropriate amount, that had been legitimately earned for work Duncan had done on the account but which should have been paid over to the firm to comply with the partnership agreement.
Duncan offered to write the firm a check right then to cover the funds that should have been paid over to Verrill Dana. Duncan appeared to Warren to be ?extremely forthcoming? in discussing the Thomas account. During the conversation, Duncan became very upset and repeatedly expressed what Warren believed to be sincere remorse for the misapplication of partnership funds. Duncan offered to resign from the firm.
Based on this conversation, Warren reasonably believed Duncan?s statements and his expressions of remorse, indicated above. Particularly, he believed that no other accounts were involved, and that the fees paid to Duncan from the Thomas account represented fees earned for legal services, which should have been, but were not, paid over to Verrill Dana, thereby violating the partnership agreement. Warren did not view Duncan?s actions as a theft of firm funds, but only a violation of the pay-over obligation of the partnership agreement.
Warren acted reasonably in believing Duncan because of his, until then, impeccable reputation for honesty, his exemplary performance over thirty years with the firm, his stellar record in the community, and his immediate and apparently sincere expressions of remorse and contrition. The reasonableness of Warren?s belief was also supported by his knowledge of the 2006 spreadsheet by which the funds that should have been paid over were easily identified.
Based on these representations and his belief in the truth of Duncan?s statements, Warren advised Duncan that he should defer decision on the offer to resign. Warren also advised Duncan to defer repayment until Warren could confirm the amount that was due.
Warren advised Foster that he had met with Duncan soon after the meeting ended. Later that day, in response to an e-mail from Foster asking if his or Rommel?s name had come up in Warren?s conversation with Duncan, Warren e mailed Foster:
Yes, I obviously had to relate the source of my inquiry, which I described as Ellie to Greg to me. I did not (and cannot) describe it as Ellie overreacting to a misunderstanding; she did the right thing, albeit difficult to do. As did you when you called it to my attention; and as (I think) did I this morning. [Let?s] talk by phone. In the meantime, it would not be helpful for you to talk with John about this.
After Warren confirmed the amount that was due, Duncan repaid the firm by a bank check provided to Warren on July 2, 2007.
Warren advised Kilbreth of the conversation with Duncan on June 28, 2007. Based on Warren?s report of Duncan?s statements, his apparent heartfelt remorse, and his prior impeccable reputation within the firm and in the community, Kilbreth agreed with Warren?s assessment that this was an isolated, aberrant incident, that it would not recur, that no clients had been harmed, and that Duncan should not be required to resign or be subject to other corrective or disciplinary action.
The executive committee was advised of Duncan?s misapplication of funds in the Janice Thomas account on July 9, 2007. The executive committee then consisted of James Kilbreth as chair and Eric Altholz, Mark Googins, Roger Clement, and Juliet Browne as members.
There was an extended discussion of the matter in the executive committee, with members expressing considerable surprise similar to that felt earlier by Warren, Foster, and Kilbreth because of Duncan?s prior reputation for trustworthiness and honesty. One member of the executive committee asked, ?Was he stealing from the firm?? There was no discussion of whether the matter might be reported to the Board of Overseers of the Bar. The executive committee accepted the view that only funds earned by the firm had been involved; failure to pay over the funds was a violation of the partnership agreement but not a theft; client funds had not been taken; and the funds at issue had been repaid in full to the firm.
The executive committee members shared the view of Warren and Kilbreth that this was an aberrant event by an otherwise honest and trustworthy individual that had not spread wider than this single account and would not be repeated.
The executive committee also agreed with Warren and Kilbreth?s assessment that Duncan?s offer to resign should not be accepted and that he should be continued with the firm. As a result of the meeting, it was agreed that Warren would contact Kurt Klebe, then head of the private clients group, and advise Klebe of these matters so that he was aware of events occurring within his group and could implement practices to prevent such events recurring in the future.
During this period, Warren and Foster had been engaging in e-mails with Rommel in which Rommel wondered about further developments based on her reports and expressed some frustration at not having been kept advised of events.
On July 13, 2007, Warren and Rommel spoke by phone. In this conversation, Rommel expressed some frustration that the firm had not, to date, been more aggressive in dealing with Duncan because of her perception that his actions were theft and posed risks to firm clients. Warren indicated his confidence that the incident had been an aberrant and isolated one that was unlikely to be repeated, that the firm had been made whole, and that no clients had been or would be harmed. Rommel seemed ?relieved? when advised that Duncan had not been converting client funds. Warren invited Rommel to return to the firm in a different position not working with Duncan. Rommel said that she would think about it and respond later.
On July 18, 2007, Rommel e-mailed Foster regarding Warren?s invitation to return to the firm stating:
Well, I?m not going to make any decisions yet, I have to determine if I can cope with returning, but we?ll talk about it again. I have to think it over and decide if I want #1 to face commuting again #2 the price of gas now, etc. But thanks to both you and Mr. Warren.
On July 17, 2007, Warren and Foster met with two other paralegals who were aware of some of the issues regarding Duncan?s misuse of funds. The purpose of this meeting was to inform these individuals of the firm?s investigation and actions regarding Duncan. One of the paralegals was the individual who had originally discovered the discrepancy in the Thomas account and reported it to Rommel. During the meeting, one of the paralegals advised that there might be another account with a discrepancy involving a check to Duncan for $5000 that may not have been paid over to Verrill Dana for fees earned for work on the account.
Following the meeting, Warren asked Foster to check out the information regarding the other account, recognizing that discovery of another account with a misapplication of funds would be a serious event. Foster then went back to the paralegal, asked for more information, was not able to receive any more information, and advised Warren that he, Foster, had checked out the report further and that there was nothing to the suggestion of a misapplication of funds by Duncan in another account. Based on Foster?s investigation and report, Warren did not pursue that matter further.
After the July 9, 2007, meeting, Kilbreth and Warren had spoken, or had attempted to speak, with Duncan further about the incident. Duncan?s reactions to their attempts to discuss the matter were very emotional and very remorseful. He seemed significantly concerned when made aware that others, specifically the executive committee, had been made aware of his problems. Duncan was having additional health and emotional stresses at the time, because he was being treated for a bleeding ulcer, and his father was near death and ultimately died.
Warren was concerned that Duncan was a serious suicide risk because of his despondency and emotional fragility. Warren was aware of another situation at a law firm when a member of the firm, confronted with information suggesting an embezzlement, had committed suicide. Further, during this time, there was widespread knowledge of a June 2005 suicide of a sole practitioner who had converted significant sums from client trust accounts to personal use. See In re Faulkner, Bar-05-02. The Court file in the Faulkner matter3 indicates that several Portland law firms, although apparently not Verrill Dana, had been involved in litigation regarding attempts to recover for their clients a share of funds that had been identified as remaining in client trust accounts.
Because of his concern regarding a possible suicide risk, Warren elected not to advise Klebe of Duncan?s situation. Warren believed that such disclosure would necessarily have to be followed up by a Klebe contact with Duncan, which could drive Duncan ?over the edge.? For that reason, although the matter was discussed from time to time at executive committee meetings over the course of the summer, Warren did not advise Klebe of the situation, and the executive committee acquiesced in Warren?s deferring action on that matter. They believed, as did Warren, that the incident was isolated and resolved with repayment of the funds and that, therefore, a deferral of Klebe?s involvement worked no prejudice to either the firm or its clients.
This remained essentially the status of things through the summer of 2007.
On August 16, 2007, Rommel and Warren met to discuss various issues of mutual concern. As originally had been suggested by Greg Foster, Warren gave Rommel a check representing an additional four-weeks? pay to reflect appreciation for her work leading to the disclosure and the stress that the disclosure process had caused her. They also discussed the possibility of Rommel?s returning to the firm, with Warren indicating that Verrill Dana could find a position for her that would involve no professional relationship with Duncan and only limited, incidental contact. Rommel also reported to Warren information that Warren had already learned regarding Duncan?s affair and use of his computer for sexually-explicit materials and e-mails.
The testimony differs relating to the extent to which Rommel was critical of the firm for failing to discharge Duncan and further investigate accounts that he managed in the interest of protecting clients. However, as the parties agreed at oral argument, these differences regarding emphasis and vigor of the conversation are not material to the issues this Court must decide. At the August 16, 2007, meeting, no new information was provided regarding any improprieties by Duncan. Rommel declined the invitation to return to Verrill Dana.
In September 2007, following Duncan?s father?s funeral and Duncan?s several weeks away from the office, Warren believed that Duncan was getting his emotions under control and was in a position to have Klebe, and perhaps others, discuss the situation and his accounts with him. The executive committee also requested, again, that Warren advise Klebe of the situation and suggest that he review procedures in the private clients group to ensure that there were no further problems with Duncan?s accounts and that what had occurred in the Janice Thomas account could not happen again.
On October 2, 2007, Warren advised Klebe of the situation with the Janice Thomas account and asked that Klebe review the account and procedures for protection of client funds in the private clients group. Like others before him, upon learning of the situation, Klebe was very surprised considering Duncan?s prior reputation with the firm. Klebe then began an investigation of processes and accounts managed by Duncan.
By October 5, 2007, Klebe had discovered and reported to Warren that there was a problem in an additional account with a $5000 check written by Duncan to himself for fees reportedly earned by the firm that were not paid over to the firm. A broader investigation then revealed several other accounts with similar problems of Duncan writing and keeping for himself checks that apparently should have been paid over to the firm as fees for services earned by the firm.
On October 10, 2007, Verrill Dana received from Rommel?s counsel, Daniel Lilley, a ?preservation? letter, advising that Rommel was considering an employment action, requesting that attorneys at Verrill Dana have no direct contact with Rommel, and asking that any evidence of the Duncan transactions and Rommel?s actions be preserved. Ultimately, Rommel, through counsel, filed a grievance complaint with the Board in late December 2007, and a complaint with the Maine Human Rights Commission in January 2008. The complaint to the Board reported Duncan?s misappropriation of funds and Rommel?s perception of an insufficient reporting and response to Duncan?s actions. The Maine Human Rights Commission complaint addressed issues regarding Rommel?s leaving the firm that, with the evidence now completed, the parties agree are not material to the alleged ethical violations to be addressed in this case.
With this information in hand, several other individuals, including the firm?s general counsel, were advised of the problem. By this time, mid-October, it was apparent that Duncan had lied to Warren and that Warren?s trust in Duncan had been misplaced when Duncan had told Warren, on June 28, 2007, that only one account was involved in his practice of keeping for himself fees that should have been paid over to the firm.
The executive committee met on October 27, 2007, and decided to terminate Duncan. Warren and Kilbreth met with Duncan on October 28, 2007, and agreed that his partnership would be terminated effective December 31, 2007.
Early the next week, the results of a substantial independent audit that had been ordered disclosed that not only had Duncan failed to pay over funds for legal services that should have been paid to the firm, but also that he had directly taken client money in situations where no legal services, or no legal services of significance, had been performed on accounts from which client funds were paid by Duncan to himself. It was apparent to all that these actions were thefts of client funds.
At this point, Duncan was terminated immediately from the firm and the firm notified the Board of Overseers of the Bar, the U.S. Attorney, and the Cumberland County District Attorney of Duncan?s thefts and other improprieties. With this notice, the Board began its investigation, ultimately leading to the filing of the Information that led to this proceeding.
In 2008, Duncan was charged and pleaded guilty to felony theft in the Superior Court and income tax evasion in the United States District Court. He paid a substantial amount of restitution and received a prison sentence of approximately two years. He was also disbarred.
Verrill Dana has restored the funds that were taken by Duncan to all client accounts affected by the thefts.
Because of Duncan?s thirty-year history with the firm, his previous impeccable reputation for honesty and trustworthiness, his leadership in important matters both in the firm and in his community, and his immediate and apparently sincere expressions of regret and remorse when confronted with questions about his handling of the Janice Thomas account, Warren, Kilbreth, and the executive committee acted reasonably in believing that Duncan?s dealings in the Janice Thomas account were an aberrational incident, that no other accounts were affected, that only firm funds and not client funds were involved, and that with Duncan?s repayment, the firm had been made whole for its losses.
With this background of understanding, Warren, Kilbreth, and the executive committee could and did reasonably believe that, while the partnership agreement was violated by Duncan?s failure to pay over funds earned for legal services, a theft had not been committed based on the facts as Warren, Kilbreth, and the executive committee believed those facts to be.
Warren and Kilbreth, having observed Duncan?s emotional state, and his reactions to discussions or attempts to discuss the events relating to the Janice Thomas account, had a reasonable basis to be concerned that further follow-up and investigation and involvement of additional persons in examination of Duncan?s performance could lead to a suicide. A similar reasonable belief had caused Rommel to delay for six months in reporting her concerns to anyone else in the firm.
The combination of the concerns about a potential suicide and the belief that Duncan?s actions regarding the Janice Thomas account were a single incident involving losses only to the firm, that those losses had been recovered, and that there were no further concerns regarding impropriety affecting the firm or clients, made the decision to delay involving Kurt Klebe a decision that was not demonstrably unreasonable. Notably, there were no further improprieties and no harm to the firm or clients occurring within the three-month period from the July 9, 2007, executive committee meeting to October 2, 2007, when Kurt Klebe was advised of the matter and began his investigation which led, almost immediately, to the discovery of other improprieties.
Based on the evidence and arguments presented, and the findings stated above, the Court reaches the following conclusions that govern its determinations of the Board?s allegations of violation of the specific Bar Rules discussed below:
The Rules presuppose disciplinary assessment of a lawyer?s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact a lawyer often has to act upon uncertain or incomplete evidence of the situation.
This disciplinary action against the respondents must be determined based on what they knew or believed at the time, when their actions were based on the uncertain evidence of the situation created by Duncan?s lies.
The firm might also have faced a defamation claim if an ?immediate report? was not sufficiently investigated or supported. See Morgan v. Kooistra, 2008 ME 26, ?? 26-28, 941 A.2d 447, 455. A report to a professional disciplinary body or a prosecutor would have been conditionally privileged, see Rice v. Alley, 2002 ME 43, ?? 21-24, 791 A.2d 932, 936-37; Packard v. Central Maine Power, 477 A.2d 264 (Me. 1994), but an action could have been maintained if the report was alleged to be based on truthful but incomplete or misleading information. See Marston v. Newavom, 629 A.2d 587, 589 (Me. 1993).
Thus, some delay in reporting to allow further investigation and understanding of the circumstances?the type of investigation suggested by the executive committee, though not in relation to reporting to the Board?would have been prudent. An ?immediate report? without more consideration, may not have been prudent.
Based on its findings and general conclusions, the Court addresses the allegations in the Information that the following provisions of the Code of Professional Responsibility were violated by one or more of the attorneys who are subject to the Information as follows:
None of the respondents before this Court have been proved to have engaged in illegal conduct, or conduct involving dishonesty, fraud, deceit, or misrepresentation. No prejudice to the administration of justice has been proved. Had an earlier report and intervention resulted in the tragedy of a suicide, something the respondents legitimately feared, identification of injured clients and restitution to clients and the firm might have been delayed or foreclosed. That would have prejudiced the administration of justice.
The Board has failed to prove that any of the respondents deviated from what the evidence indicated was common law firm practice at the time to promote continuing legal education and other informal measures to give reasonable assurance that members of the firm conform to Bar Rule 3. The Board has not proved that, in Verrill Dana firm management, (1) any respondent had direct supervisory authority over any lawyer whose conduct is at issue in this case; (2) any respondent ordered, or with knowledge of specific misconduct, ratified the conduct at issue; or (3) any respondent knew of conduct at a time when its consequences could have been avoided or mitigated, but failed to take reasonable, remedial action. The Board asserts that, believing what they did about Duncan?s conduct, the respondents, or some of them, violated Rule 3.13(a) by enabling or failing to mitigate Duncan?s misconduct by allowing him to remain with the firm and delaying in reporting his misconduct to the Board. After Duncan?s misconduct was discovered by firm management in June of 2007, no further misconduct occurred that could have been enabled or mitigated.
John Duncan?s betrayal of trust was a tragedy for his clients, his family, his firm, and the larger community in which he was a respected participant. His betrayal of trust may have damaged the underlying premises of law firm governance, reliant on mutual trust, respect, and obligation of law firm partners toward each other, and a shared commitment to the greater good of clients, the firm, and the community at large. The respondents observed Duncan?s misconduct, and applying the trust built up over thirty years and the mutual commitment of partnership, invited him to remain with the firm. They delayed further investigation and report of his actions based on humane consideration of a fellow partner?s difficult emotional situation. When the true extent of Duncan?s misconduct was revealed, they promptly reported it and proceeded to make betrayed clients whole. With the clarity of hindsight, the respondents were perhaps too trusting when they had good reason to trust, but they committed no violations of the Code of Professional Responsibility.
The entry is:
Judgment for the Respondents that the violations of the Code of Professional Responsibility alleged in the Information have not been proved by a preponderance of the evidence.
FOR THE COURT
Donald G. Alexander, Associate Justice ? Maine Supreme Judicial Court
FOOTNOTES
1 1 Maine Manual on Professional Responsibility 3-35 (2007 ed.). Paragraph (1) of Bar Rule 3.2(e) addresses reporting attorney misconduct; paragraph (2) addresses reporting judicial misconduct.
2 Id. at 3-43.
3 The Court can take judicial notice of its own files. M.R. Evid. 201(b); Finn v. Lipman, 526 A.2d 1380, 1381 (Me. 1987).
Board of Overseers of the Bar v. Richard L. Rhoda, Esq.
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Docket No.: GCF-09-409
Issued by: Grievance Commission
Date: February 24, 2011
Respondent: Richard L. Rhoda, Esq.
Bar Number: 000124
Order: Dismissal with Warning
Disposition/Conduct: Conduct Prejudicial to the Administration of Justice; Communication
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL F OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On February 24, 2011 with due notice, Panel F of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Richard L. Rhoda, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 14, 2010.
At the hearing, Attorney Rhoda was represented by Malcolm L. Lyons, Esq. and the Board was represented by Assistant Bar Counsel Aria Eee. Complainant Michael Charm of Caribou, Maine attended the hearing and addressed the Panel regarding the parties? proposed resolution of this matter.
Prior to the disciplinary proceeding, the parties had submitted a proposed, stipulated sanction Report for the Grievance Commission Panel?s consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Richard L. Rhoda, Esq. of Houlton, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Rhoda was admitted to the Maine Bar in April 1974 is registered as an active Maine attorney and maintains a solo practice in Houlton, Maine.
On November 11, 2009, Michael A. Charm (Charm) and his mother filed a complaint (which she signed on his behalf) concerning Rhoda?s representation of Charm in criminal cases then pending in the Aroostook County Superior Court. In that complaint Charm described his upset and frustration with Rhoda?s handling of his cases and his failure to provide Charm with some of the discovery documents related to those criminal charges.
By way of background, in 2002 Charm had retained different counsel for his initial charges. That lawyer was unable to appear at Charm?s arraignment and by October 2002, Rhoda had accepted the case and obtained former counsel?s file. Several years later in 2009, Charm returned to Maine and Rhoda renewed his defense of Charm on the criminal charges.
Rhoda agrees that following the August 20, 2009 court appearance with Charm he should have immediately provided his client with all of the discovery documents as instructed by the trial justice. Although Rhoda asserts that he adequately reviewed the charges and attendant consequences of a plea, Charm maintains that Rhoda did not thoroughly explain the theory of accomplice liability thus enabling him to understand the severity of the charges. Rhoda acknowledges that the discovery concerns and the failed communication were distressing to Charm. Notwithstanding his client?s obvious upset and request for new counsel (which the court denied) Rhoda continued to negotiate with the District Attorney?s Office on Charm?s behalf and he ultimately secured a favorable proposed sentence for Charm.
Thereafter, by the time new counsel was appointed on November 30, 2009, Charm conceded his satisfaction with the plea deal previously secured by Rhoda. Charm had also written an earlier letter to Rhoda (after the September 30, 2009 court appearance) describing his agreement with the proposed plea and expressing his gratitude for Rhoda?s work in obtaining the favorable proposed sentence. Successor counsel who subsequently met with Charm and Rhoda has confirmed that Charm continued to express upset about the delayed discovery but ultimately appreciated the result of his cases. Later in that meeting, Charm remarked that he wished he had not filed the grievance as he did not have all the facts at the time of its filing. At that time, he reported his desire to withdraw the complaint against Rhoda.
Charm?s 2009 letter only became known to Bar Counsel and this Grievance Commission Panel as the parties prepared for trial of this matter. The Panel notes that it was not provided to Bar Counsel?s office during its investigation of the grievance matter.
Despite his appreciation for the results obtained by Rhoda, Charm is clear that Rhoda never forwarded him a full package of discovery -- information which Charm deemed critical to his ability to make decisions about his cases. Rhoda does not dispute that fact and he accepts responsibility for failing to immediately follow the trial justice?s directive in that regard. His failure to do so constituted a violation of M. R. Prof. Conduct 8.4(d) (conduct prejudicial to the administration of justice). Rhoda recognizes that from his client?s viewpoint their communication failed to ensure that Charm felt comfortable proceeding in his criminal cases. To that end, Rhoda acknowledges his violation of M. R. Prof. Conduct 1.4 (a)(4),(b) (communication).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Rhoda?s above-outlined failures, Charm experienced unnecessary stress and anguish. The Panel notes that Rhoda has taken responsibility for his lapses and at the disciplinary hearing Attorney Rhoda apologized to Mr. Charm for his violations of the Maine Rules of Professional Conduct. M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Based upon the above-outlined facts, the evidence supports a finding that Rhoda engaged in minor misconduct, resulting in minimal injury to Charm with little likelihood of repetition by Rhoda. Rhoda agrees that he did in fact violate the Maine Rules of Professional Conduct, and he accepts the Panel?s warning to refrain from failing to fully inform his future clients.
Therefore, the Panel1 accepts the agreement of the parties, including Rhoda?s separately executed waiver of the right to file an Objection to the Warning, and concludes that the appropriate disposition of this case is a Dismissal with a Warning to Richard L. Rhoda, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B), (4).
For the Grievance Commission
James A. McKenna III, Esq., Acting Panel Chair
Norman A. Ross
Footnotes
1 Pursuant to M. Bar Rule 7(b)(6), the stipulated hearing proceeded with a Panel comprised of two members, one of whom was a layperson.
Board of Overseers of the Bar v. Brian Aromando
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Docket No.: BAR-10-4
Issued by: Single Justice Maine Supreme Judicial Court
Date: February 25, 2011
Respondent: Brian Aromando
Bar Number: 009897
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney; Other Misconduct; Standards of Care and Judgment; Competent Representation; Reasonable Diligence and Promptness; Communication; Fees; Professional Misconduct for a Lawyer
DISCIPLINARY ORDER M. Bar R. 7.2(b)
On February 25, 2011 a disciplinary hearing occurred before the Court concerning six (6) separately filed grievances against former attorney Brian Aromando. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis, and Aromando was present and represented by Attorney Charles W. Smith, Jr. As a result of counsel?s agreement and stipulation to the significant factual issues, testimony was presented by Defendant Aromando and comments made by counsel to confirm the appropriateness of the agreed proposed sanction to be imposed by the Court for Aromando?s many instances of serious professional misconduct.
In light of Aromando?s several violations of the Maine Rules of Professional Conduct and the former Code of Professional Responsibility and accepting his acknowledgment that these are serious violations, the Court must now consider an appropriate sanction.
The primary purpose of attorney discipline is protection of the public. For this reason, the Court hereby ORDERS the following sanction in this matter as agreed and proposed by the parties:
The entry is:
FOR THE COURT
Joseph M. Jabar, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. C. Peter Bos, Esq.
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Docket No.: GCF-10-019 and GCF-10-225
Issued by: Grievance Commission
Date: March 31, 2011
Respondent: C. Peter Bos, Esq.
Bar Number: 002951
Order: Reprimand
Disposition/Conduct: Standards of Care and Judgment; Diligence; Communication; Neglect
Report of Findings of Panel C of the Grievance Commission
On February 9, 2011, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, C. Peter Bos, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on October 30, 2010. On December 20, 2010 by agreement of the parties, the Board amended its Petition following the receipt of additional information from Complainant, Eric Voelker.
At the March 31, 2011 hearing, Attorney Bos was represented by Marvin H. Glazier, Esq. and the Board was represented by Assistant Bar Counsel Aria Eee. Additionally, complainants Eric and Jean Voelker and James Kurtz were all present for the proceeding. The complainants each had been provided with a copy of the parties? proposed stipulated sanction Report to review in advance of the stipulated hearing.
Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent C. Peter Bos (Bos) of Bangor, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Bos was admitted to the Maine Bar in 1984 and he is currently registered as an active Maine attorney.
From 2007-2010, Bos represented the complainants, Mr. and Mrs. Voelker in a civil matter related to an injury which occurred at their home in 2006. After the Voelkers were served with the plaintiff?s lawsuit, they sought out Bos for representation to defend the action on their behalf. While no engagement agreement was executed at their meeting, the Voelkers gave Bos information and documentation intended to secure his representation. Despite the fact that he did not at that time consider himself to be the Voelkers? attorney, Bos acknowledges that the Voelkers believed he was their attorney and he may not have clearly advised the Voelkers that he in fact, was not their attorney at that time. Bos did contact Plaintiff?s counsel to indicate he was going to send the summons and complaint to the Voelkers? insurance carrier. Bos also told the Voelkers that he would contact Plaintiff?s counsel to inform him of Bos? contact with the Voelkers and his advice to them. Bos did in fact contact Plaintiff?s counsel to relate what advice he had given to the Voelkers; but Bos did not ask counsel for an extension of time so that a response could be made to the complaint. Bos did not follow up with an attempt to contact Plaintiff?s counsel or the Voelkers as to whether the insurance carrier would provide a defense. Unbeknownst to the Voelkers, Bos did not file an answer to the June 2007 lawsuit and a default judgment was entered against the Voelkers. When the Voelkers were served with notice of the default they contacted Bos who attempted to have the default set aside. He was not successful in that attempt and a $60,000 judgment was issued against the Voelkers after a hearing in which Bos participated. Ultimately, a parcel of land owned by the Voelkers was sold at a sheriff?s sale to satisfy the judgment. Bos? failures related to the Voelkers? claim constituted violations of then applicable Maine Bar Rules and 3.6(a)(2)(3) (standards of care and judgment/neglect).
During the same time period, complainant Mr. Kurtz and his then wife, Dawn Hill, retained Bos to represent Hill regarding injuries she suffered due to an April 2006 car accident. Mr. Kurtz? loss of consortium claim was included within the context of that personal injury matter. Ms. Hill and Mr. Kurtz complained that Bos? pursuit of Hill?s matter was delayed and negatively impacted their ability to pay her medical bills. While Bos apparently believed Ms. Hill wished to defer filing a lawsuit, by the summer of 2009, Hill was insistent that the lawsuit be filed by Bos. Despite her repeated attempts to ensure that Bos initiated that filing, he failed to do so.
Moreover, the couple was reliant on the proceeds from the proposed lawsuit to pay down marital debts. During their recent divorce, Hill and Kurtz repeatedly made reference to the anticipated settlement funds, a fact of which Bos was aware and periodically discussed with Kurtz? divorce lawyer. Bos? failures related to the Hill/Kurtz legal matter constituted violations of Maine Bar Rules 3.6(a)(2)(3) (standards of care and judgment) and Maine Rule of Professional Conduct 1.3 (diligence) and 1.4 (communication).
During the pendency of Mr. Kurtz? 2010 complaint matter, Ms. Hill was referred to another attorney to act as successor counsel for the personal injury case. That attorney has reportedly agreed to represent Ms. Hill and Mr. Kurtz in their respective claims.
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Bos? actions, Ms. Hill?s personal injury case has been significantly delayed, thereby also resulting in a contemporaneous delay for Mr. Kurtz? separate claim. Likewise, Mr. and Mrs. Voelker reasonably relied on Attorney Bos to defend them in the 2007 personal injury lawsuit. Bos, however, failed to properly communicate the scope of any representation he undertook with the Voelkers and failed to ensure that their interests were protected. The harm to the Voelkers was significant and avoidable, if steps had been taken to prevent a judgment by default.
The Panel notes that Attorney Bos was publicly reprimanded in January 2009 for conduct similar in time and detail to that which occurred in his dealings with the Voelkers and Ms. Hill/Mr. Kurtz. (See GCF# 07-276). It appears to the Panel that most of the conduct complained about in the instant matters occurred during the same time period in which Attorney Bos was then struggling to manage his practice.
It is apparent that Attorney Bos is sincerely remorseful for his failure to properly monitor his clients? separate legal matters and to adequately communicate with each of them. To address the concerns about his practice management deficiencies, the parties have agreed that he will submit his practice to monitoring by Attorney David King of Bangor, ME. The parties have executed a confidential monitoring agreement which the Panel has reviewed and accepted as part of the disposition in this proceeding. In that regard, the Panel anticipates that Attorney Bos will improve his client relations, his calendaring system and the breadth of his caseload, so as to avoid future complaints of client neglect.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. At the disciplinary proceeding, Attorney Bos apologized for his actions and accepted responsibility for his multiple violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct.
Since the evidence of misconduct supports a finding and Attorney Bos agrees he did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that its issuance of two public reprimands and a monitoring of Bos? practice should serve to adequately protect the public.
Therefore, the Panel accepts the agreement of the parties including Attorney Bos? separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate dispositions of these cases is the issuance of two Public Reprimands to C. Peter Bos, Esq. which are now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
James A. McKenna, Esq., Chair
Sarah McPartland-Good, Esq.
Norman A. Ross
Board of Overseers of the Bar v. Wayne R. Murphy
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Docket No.: BAR-11-1
Issued by: Single Justice, Maine Supreme Judicial Court
Date: April 4, 2011
Respondent: Wayne R. Murphy
Bar Number: 008226
Order: Suspension
Disposition/Conduct: Reciprocal Discipline
Order of Suspension
This Court has received a certified copy of the October 20, 2010 Order of Term Suspension issued by the Commonwealth of Massachusetts? Supreme Judicial Court. The Order suspended Wayne R. Murphy for his violations of the Massachusetts Rules of Professional Conduct. In this reciprocal discipline action filed by the Maine Board of Overseers of the Bar, Mr. Murphy has defaulted by failing to file any response to this Court?s February 10, 2011 Order and Notice. That order provided Mr. Murphy an opportunity to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts.
Therefore, based upon that default, this Court hereby ORDERS:
FOR THE COURT
Andrew Mead, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jonathan A. Toof
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Docket No.: GCF 10-125
Issued by: Grievance Commission
Date: April 6, 2011
Respondent: Jonathan A. Toof
Bar Number: 003768
Order: Reprimand
Disposition/Conduct: Failure to Respond to Bar Counsel
FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On February 28, 2011, with due notice, Panel D of the Grievance Commission conducted a disciplinary hearing concerning alleged misconduct by the Respondent, Jonathan A. Toof. This disciplinary proceeding was commenced on November 10, 2010 through the Board of Overseers of the Bar's filing of a Disciplinary Petition. The February 28, 2011 hearing was open to the public pursuant to Maine Bar Rule 7. 1(e)(2)(E).
Mr. Toof failed to file an answer to the Disciplinary Petition. Therefore, pursuant to Maine Bar Rule 7.1(e)(1), the misconduct alleged in the Petition, as set forth below, was taken as admitted by Mr. Toof.
At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Jacqueline L. L. Gomes. Mr. Toof was not represented by counsel and did not present any exhibits or witnesses, but did appear on his own behalf at the hearing. As well as admitting that he had failed to file a response to the original Bar Complaint and to the Disciplinary Petition, Mr. Toof also admitted that he was in violation of the Bar Rules cited in the petition and agreed that the hearing should focus only on the sanction, if any, that should be imposed for the violations.
Respondent Jonathan A. Toof (Toof) of Port Townsend, Washington was at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine. As such, Mr. Toof, a 1988 admittee to the Maine Bar, has been subject to the Maine Bar Rules. He is currently a suspended Maine attorney (see below.)
On his Fiscal Year 2006 Registration Statement dated July 11, 2005, Toof had indicated a desire to assume inactive status pursuant to Maine Bar Rule 6(c)( 1). Toof did not then file an affidavit certifying his compliance withMaine Bar Rule 7.3(i)(2) as required within 30 days of his notice to seek inactive registration. On March 9, 2007, the Board notified Toof of his failure to file the required affidavit. Toof never filed an affidavit. However, Toof did pay the annual registration fee amounts required to maintain inactive status for Fiscal Years 2007, 2008 and 2009.
On October 20, 2009 Mr. Toof was administratively suspended by the Board due to his failure to register and pay the necessary fees for Fiscal Year 2010 as required by Maine Bar Rules 6 and10. On March 9, 2010, Bar Counsel docketed a sua sponte grievance complaint against Toof related to his failure to comply with the affidavit requirements of M. R. Prof. Conduct 8.4(a) and M. Bar R. 7.3(i)(2)(A),(B).
As of the date of this hearing, Toof remains administratively suspended and has never responded to this grievance matter in violation of M. Bar R. 2(c) and M.R. Prof. Conduct 8.1{b). Further, he still has not filed any notification affidavit, even though he has repeatedly been instructed and directed how to properly do so. Toof's conduct resulted in his violations of the Maine Bar Rules and the Maine Rules of Professional Conduct.
Though he made no response prior to the hearing explaining why he failed to file the appropriate affidavit under M. B. R. 7.3 (i)(2)(A), (B) and M.R. Prof. Conduct 8.4 (a) or why he did not file a written response to the Disciplinary Petition, Mr. Toof did offer an explanation for these failures during his presentation to the Panel on the issue of what, if any, sanctions should be imposed. He basically stated that when he left the practice of law and requested to be put on inactive status, he had just retired from 13 years as an Assistant United States Attorney prosecuting criminal cases and he thus had no clients and no pending cases. He therefore thought it was a meaningless bureaucratic exercise to file an affidavit that stated that he had told any clients, and any Courts where he might have a case pending, that he was leaving the practice of law and becoming an inactive member of the bar. He pointed out that there was no harm to any member of the public from this technical violation of the rules. He further stated that he failed to file a response to the petition because he thought this was a further useless procedure not worthy of a response. In essence he stated it was form over substance.
Due to Toof's above-outlined failures, the Maine Bar Rules and the Maine Rules of Professional Conduct were violated by him. In order to obtain inactive status an attorney was required previously by Maine Bar Rule 7.3 (i)(2)(A), (B), and currently by M.R. Prof. Conduct 8.4 (a), to notify any clients of his inactive status and his consequent inability to act as an attorney as of the date of his inactive status, and to file with the Clerk and the Board an affidavit that attests that he has notified his clients and any Courts of his assumption of inactive status. He is then required for each of the next three years to file annual registration statements (with a reduced registration fee). After three years he is relieved of any obligation to file, and would no longer have any status as a Maine attorney and would presumably no longer be subject to the Maine Bar Rules or Maine Rules of Professional Conduct. Mr. Toof did in fact file his registration statements and pay his reduced registration fees for the required three years. However, since he never filed the required affidavits, he never actually achieved inactive status. As such he remained in the active category until he was subsequently administratively suspended when he failed to pay any registration fee for Fiscal year 2010. As a consequence of his administrative suspension, he is no longer a licensed member of the Maine Bar.
Mr. Toof clearly violated M. B. R. 7.3 (i)(2)(A), (B) and M.R. Prof. Conduct 8.4 (a) when he failed to file the necessary affidavits after deciding to leave the practice of law and assume inactive status. However, the panel has some sympathy for his argument that in his case the filing of such affidavits was a somewhat useless exercise in bureaucratic paperwork. Mr. Toof did travel all the way from Washington State to attend the hearing, and did inform the panel that he had no clients and no remaining cases pending when he left the practice of law in Maine four years earlier. M. B. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. In this instance, the public suffered no harm, nor was there any possibility of such harm in the future since Mr. Toof had effectively left the practice of law and had no clients or pending cases. Therefore, the Panel finds that a dismissal with a warning would be an appropriate disposition of this part of the disciplinary Petition against him.
The Panel views somewhat differently the issue of the Respondent's failure to respond at all to the complaint that had been brought against him. The Petition alleges a violation of Maine Rule of Professional Conduct 8.1 (b) in that the respondent never responded to Bar Counsel's original complaint. The panel finds that Mr. Toof was indeed in violation of this rule, and that this violation is more serious than his failure to file the affidavits connected with his request for inactive status. The whole disciplinary process is predicated on the requirement that an attorney who has a complaint filed against him will respond and provide the necessary information to Bar Counsel so that the complaint can be investigated and processed. In this case, if Mr. Toof had responded to the original request from Bar Counsel and had provided his explanation regarding his lack of clients as an Assistant United States Attorney and that he had no cases pending when he retired, it is possible that the case would have ended with a Bar Counsel dismissal. Instead it was presented to a Grievance Panel for a probable cause determination, resulting in a formal petition, further resulting in a costly and time-consuming formal public hearing. The Panel believes that it is of the utmost importance for the protection of the public from attorney misconduct that the disciplinary process functions smoothly and properly. Since the evidence is uncontroverted that Toof did in fact violate and the Maine Rules of Professional Conduct 8.1 (b) the Panel finds that a public reprimand is appropriate for that violation.
Therefore, the Panel concludes that the appropriate disposition for Mr. Toof's violation of Rule 8.1 (b) is a Public Reprimand which is now hereby issued and imposed upon him pursuant to M. Bar R 7. 1(e)(3)(C), (4). Bar Counsel shall deliver that Reprimand to Mr. Toof by U.S. Mail on this date.
For the Grievance Commission
William E. Baghdoyan Esq., Chair
Tobi L. Schneider, Esq.
Ms. Kathleen A. Schulz
Board of Overseers of the Bar v. In Re Charles G. Williams III
Download Download Decision (PDF)
Docket No.: 2:10-mc-00202-JAW
Issued by: Chief United States District Judge
Date: April 11, 2011
Respondent: Charles G. Williams, III
Bar Number: 008827
Order: Reinstatement Denied
Disposition/Conduct:
AMENDED1 ORDER ON PETITION FOR REINSTATEMENT
The Court denies the petition of Charles G. Williams, III for reinstatement to the bar of this Court and overrules his objections to this Court?s proceedings.
I. STATEMENT OF FACTS
A. Procedural History
On September 3, 2010, Charles G. Williams filed a verified petition for attorney reinstatement to the bar of this Court pursuant to Local Rule 83.3(g). Verified Pet. for Att?y Reinstatement Pursuant to U.S.D.C. Loc. R. 83.3(g) (Docket # 1) (Pet.). On September 7, 2010, the Court ordered Mr. Williams to show cause as to why the petition should not be denied since he had failed to demonstrate that he is a member of the bar of the state of Maine, which is a prerequisite for admission or readmission to the bar of this District. Order to Show Cause (Docket # 2). The Maine Board of Overseers of the Bar responded to Mr. Williams? petition on September 14, 2010, saying that Mr. Williams? petition ?is inappropriate and untimely? since Mr. Williams? petition for reinstatement to the Maine bar had been denied by the Maine Supreme Judicial Court on May 10, 2010, and Mr. Williams? appeal of that order was pending before the Maine Law Court. Resp. to Verified Pet. for Att?y Reinstatement (Docket # 3). On September 21, 2010, Mr. Williams responded. Pet.?s Consolidated Resp. to Show Cause Order and Sua Sponte Mot. for Summ. J. (Docket # 4) (Pet.?s Resp.). Among other arguments, citing Selling v. Radford, 243 U.S. 46 (1917), Mr. Williams claimed that the Maine Supreme Judicial Court?s resolution of his petition for reinstatement is not binding on this Court because the State proceeding denied him due process. Id. at 7?8. Upon his motion, the Court granted Mr. Williams a stay in his petition for reinstatement until the Maine Supreme Judicial Court ruled on his pending appeal of the single justice?s Order denying his state petition for reinstatement to the Maine state bar. Pet.?s 1st Ex Parte Mot. to Continue Sua Sponte Summ. J. Consideration (Fed. R. Civ. P. 56(f)(2)) (Docket # 5); Order on Pet.?s Mot. to Stay (Docket # 6).
On December 10, 2010, Mr. Williams filed a copy of the Maine Supreme Judicial Court Order dated November 23, 2010, affirming the decision of the single justice, and he requested a status conference with the Court. Letter from Charles Williams to Clerk of Ct. (Dec. 5, 2010) (Docket # 7) Attach. 1, Pet. of Charles G. Williams III for Reinstatement to the Bar of the State of Maine, 2010 ME 121 (Nov. 23, 2010) (Law Court Order). On December 14, 2010, the Court denied Mr. Williams? request for a status conference and ordered him to file a memorandum no later than January 18, 2011, addressing at a minimum a series of issues. Briefing Order (Docket # 8). After receiving an extension, Mr. Williams filed his response on January 19, 2011. Pet.?s Mot. for Enlargement of Time (Docket # 10); Order (Docket # 12); Pet.?s 2nd Resp. to Show Cause Order and Reasons Why Reinstatement Should Occur (Docket # 11) (Pet.?s 2nd Resp.). The Board of Overseers of the Bar responded on February 18, 2011. Bd. of Overseers of the Bar?s Resp. Opposing Reinstatement (Docket # 13) (Bd. Opp?n).
On February 22, 2011, after noticing that the record might be incomplete, the Court ordered Mr. Williams to file a complete record of the state disciplinary proceeding and to identify those parts of the record upon which is he relying. Order to File Record (Docket # 14). On February 23, 2011, Mr. Williams filed a reply memorandum. Pet.?s Reply Mem. of Points and Authorities in Support of Reinstatement (Docket # 17) (Pet.?s Reply). On March 1, 2011, the Court issued an Order of Clarification to resolve Mr. Williams? confusion about what the Order to File Record required. Order of Clarification (Docket # 19). On March 8, 2011, Mr. Williams filed a set of objections and an offer of proof. Pet.?s Notice of Objections and Offer of Proof to the District Ct.?s Order of Clarification (Docket # 21) (Pet.?s Ob.). As Mr. Williams was attempting to manufacture a dispute about the record with the Clerk of the Maine Supreme Judicial Court, the Court intervened, denying his request for a subpoena duces tecum. Order on Pending Proceeding (Docket # 24). The record closed on the pending petition for reinstatement on March 21, 2011. Id. at 4. On March 24, 2011, after the record closed, Mr. Williams filed a third response. Pet.?s 3rd Resp. to Show Cause Order (Docket # 26) (Pet.?s 3rd Resp.). 2
B. Charles G. Williams III, the Maine Bar, and the Maine District Court
Charles G. Williams graduated from law school in 1998 and was admitted to the practice of law in the state of Maine in April 1999. Pet.?s Resp. Attach. 10 at 3 (Alexander Order). On April 16, 2002, Associate Justice Paul L. Rudman issued an order temporarily suspending Charles G. Williams III from the practice of law in the state of Maine. Id. at 4. The Order was filed in this Court on April 17, 2002, and on April 18, 2002, Judge Hornby issued an Order to Show Cause as to why this Court should not impose identical discipline. Order to Show Cause at 1, Bd. of Overseers of the Bar v. Williams, No. 2:02-mc-42-GZS (D. Me. Apr. 18, 2002). On May 10, 2002, Judge Hornby issued an order of suspension. Order of Suspension, Bd. of Overseers of the Bar v. Williams, No. 2:02-mc-42-GZS (D. Me. May 10, 2002) (Docket # 5).3
On April 15, 2004, an Order of Disbarment was filed with this Court effective April 7, 2004. Order of Disbarment, Bd. of Overseers of the Bar, No. 2:02-mc-42-GZS (D. Me. Apr. 15, 2004) (Docket # 28). On April 26, 2004, this Court issued an Order to Show Cause as to why the identical discipline by this Court would be unwarranted. Order to Show Cause, Bd. of Overseers of the Bar, No. 2:02-mc-42-GZS (D. Me. Apr. 26, 2004) (Docket # 29). On June 29, 2004, Chief Judge George Z. Singal issued an Order of Disbarment. Order of Disbarment, Bd. of Overseers of the Bar, No. 2:02-mc-42-GZS (D. Me. June 29, 2004) (Docket # 35). On March 7, 2005, the First Circuit dismissed Mr. Williams? appeal of that Order. Mandate of USCA, Bd. of Overseers of the Bar, No. 2:02-mc-42-GZS (D. Me. March 7, 2004) (Docket # 39).
On September 30, 2009, Mr. Williams sought reinstatement in the Maine State bar. Alexander Order at 1. His petition was referred for hearing to a Grievance Panel of the Board of Overseers of the Bar, which held a hearing on November 19, 2009. Id. Mr. Williams was allowed to appear and testify by telephone from Georgia, where he was residing at the time. Id. at 1?2. On November 25, 2009, the Grievance Panel issued a report recommending the denial of Mr. Williams? petition for reinstatement. Id. at 2. On January 27, 2010, the Board of Overseers of the Bar voted to support the Grievance Panel recommendation and to recommend to the Maine Supreme Judicial Court that Mr. Williams? petition be denied. Id.
On May 10, 2010, Justice Donald G. Alexander, acting as a single justice, denied the petition for reinstatement in a twenty-six page Order. Id. at 26. He concluded that Mr. Williams had ?failed to prove, by clear and convincing evidence, that his reinstatement will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest.? Id. Mr. Williams appealed Justice Alexander?s Order and on November 23, 2010, the Maine Supreme Judicial Court affirmed the judgment. Law Court Order at 1.
C. Charles G. Williams III?s Contentions
In his multiple filings in the pending petition for reinstatement, Mr. Williams makes the following claims:
1) That the state decision constitutes disparate treatment in violation of Mr. Williams? rights to equal protection as a ?class of one? under Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);
2) that the Rules of Civil Procedure, specifically Rule 56, are applicable to his reinstatement petition;
3) that Maine Bar Rule 7.3(j)(6) is unconstitutional on its face;
4) that Maine Bar Rule 7.3(j)(6) is unconstitutional as applied by the Law Court;
5) that the Maine Supreme Judicial Court stigmatized him in violation of his procedural due process rights under Paul v. Davis, 424 U.S. 694 (1976);
6) that the Maine Supreme Judicial Court determined the underlying facts within the state reinstatement petition in an arbitrary and capricious manner,
7) that Mr. Williams asserts a grave reason that the findings of the state court should not be considered by the federal court;
8) that the retroactive application of the Law Court?s ?professional misconduct? violated his due process rights to ?notice? under Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673 (1930); and,
9) that he satisfies all the objective elements of Maine Bar Rule 7.3(j)(5).
Pet.; Pet.?s Resp.; Pet.?s 2nd Resp.; Pet.?s Reply; Pet.?s Ob.; Pet.?s 3rd Resp.4
Regarding Mr. Williams? objections and offer of proof, Mr. Williams? first objection relates to the controversy he attempted to generate with the Clerk of the Maine Supreme Judicial Court over the physical location of the appellate briefs in his case. Pet.?s Ob. at 4?12. Mr. Williams? second objection concerns the Court?s Order of Clarification. Id. at 12?15. Mr. Williams? final objection asserts that the Court is violating its own local rules. Id. at 15?17.
D. The Board of Overseers of the Bar?s Response
The Board of Overseers of the Bar contends that because Mr. Williams has not been reinstated to the bar of the state of Maine, his pending petition for reinstatement must be denied. Bd. Opp?n at 1?2. The Board goes on to say that if the Court addresses Mr. Williams? argument under Selling v. Radford, the Court should deny the petition for reinstatement because Mr. Williams has not demonstrated that the state of Maine failed to comply with due process requirements in rejecting his state petition for reinstatement. Id. at 3?9.
II. DISCUSSION
A. The Record
The record in this petition for reinstatement consists of the following:
1) Transcript of Board of Overseers hearing dated November 19, 2009, Pet. Attach. 1;
2) Personal Statement of Charles G. Williams, III, id. Attach. 2;
3) Petitioner?s Consolidated opposing Statement of Material Facts in Opposition to Show Cause Order and Statement of Additional Material Facts Pursuant to Loc. R. 56(c) and (d), Pet.?s Resp. Attach. 1;
4) Supplemental Document in Opposition to Show Cause Order, id. Attach. 2;
5) Documents and Supporting Materials in Support of Declaration of Charles G. Williams III in Response to Show Cause Order and Motion for Summary Judgment, id. Attach. 3;
6) Docket Sheet of Reinstatement Petition, id. Attach. 4;
7) Order of Justice Donald G. Alexander of February 8, 2010, id. Attach. 5;
8) Petitioner?s Brief in Support of Reinstatement, id. Attach. 6;
9) Board of Overseers of the Bar?s Brief in Opposition to Reinstatement, id. Attach. 7;
10) Petitioner?s Reply Memorandum in Support of Reinstatement, id. Attach. 8;
11) Report of Panel B on Petition for Reinstatement, id. Attach. 9 (Panel B Report);
12) Order of Justice Donald G. Alexander dated May 10, 2010, Alexander Order;
13) Petitioner?s Motion for Status Conference and Request for Production for the Production of the Administrative Record Pursuant to Me. Bar R. 7.3(j)(5 and 6) and Me. R. App. P. 10(c), Pet.?s Resp. Attach. 11;
14) Notice of Docketing in the Law Court, id. Attach. 12;
15) Law Court Briefing Schedule, id. Attach. 13;
16) Decision of the Maine Supreme Judicial Court regarding the Petition of Charles G. Williams III for Reinstatement to the Bar of the State of Maine, Law Court Order;
17) Petitioner?s 2nd Response to Show Cause Order and Reasons Why Reinstatement Should Occur, Pet.?s 2nd Resp.;
18) Board of Overseers of the Bar?s Response Opposing Reinstatement, Bd. Opp?n;
19) Petitioner?s Reply Memorandum of Points and Authorities in Support of Reinstatement, Pet.?s Reply;
20) Petitioner/Appellant?s Brief in Support of Reinstatement ? Maine Supreme Judicial Court, id. Attach. 1;
21) Brief of Appellee ? Board of Overseers of the Bar ? Maine Supreme Judicial Court, id. Attach. 2;
22) Petitioner/Appellant?s Reply Brief in Support of Reinstatement ? Maine Supreme Judicial Court, id. Attach. 3; and
23) Petitioner?s 3rd Response to Show Cause Order, Pet.?s 3rd Resp.
B. Legal Standards: Maine Local Rules
An attorney who has been disbarred by another court is subject to the imposition of the identical discipline in this Court. D. ME. LOC. R. 83.3(b)(3)(B). An attorney who had been disbarred for more than three months ?may not resume practice until reinstated by an order of this Court.? Id. 83.3(g)(1). To be eligible for admission to the bar of this Court, an attorney must be ?an active member in good standing of the bar of the State of Maine and . . . not currently [be] under any order of disbarment, suspension of any other discipline in any court of record in the United States.? Id. 83.1(a).
An attorney who has been disbarred may be reinstated upon petition to this Court. Id. 83.3(g). To be reinstated, ?the petitioner shall have the burden of demonstrating by clear and convincing evidence that petitioner no longer has any incapacity and possesses the moral qualifications, competency and learning in the law required for the admission to the practice of law before this court and that the petitioner?s resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive of the public interest.? Id. 83.3(g)(3).
C. Attorney Admission, In re Williams, and the Selling Exception
Mr. Williams has not presented this Court with the essential prerequisite for admission to the bar of this Court: he is not an active member of the bar of the state of Maine and he remains under disbarment. See In re Smith, 329 Fed. Appx. 805, 807 (10th Cir. 2009); In re Discipline of Price, 294 Fed. Appx 743, 744?45 (3rd Cir. 2008); In re Kandekore, 460 F.3d 276, 279?80 (2d Cir. 2006); In re Martin, 120 F.3d 256, 258?59 (Fed. Cir. 1997); In re the Matter of Reinstatement of Leaf, 41 F.3d 281, 284?85 (7th Cir. 1994); In re Smith, 100 F. Supp. 2d 412, 416 (N.D. Tex. 2000). Instead, Mr. Williams seeks reinstatement under a narrow window. He contends, citing Selling, that the state court proceeding, which denied his motion for reinstatement, violated his rights to due process.
Mr. Williams? own case before the First Circuit Court of Appeals guides the Court?s analysis. See In re Williams, 398 F.3d 116 (1st Cir. 2005). There, the First Circuit held that ?[w]here, as here, action against an attorney is based on the imposition of discipline by a state court, the ultimate decision of the state court as to the type and kind of discipline meted out is ?not conclusively binding? on this court.? Id. at 118 (quoting In re Ruffalo, 390 U.S. 544, 547 (1968)). As the First Circuit made clear, the federal court ?is without jurisdiction, in a federal disciplinary proceeding, to disturb the state court?s imposition of discipline.? Id. Further, the state court?s substantive findings ?ordinarily are entitled to a high degree of respect when this court is asked to impose reciprocal discipline.? Id. Even though ?as a general rule, discipline similar to that imposed in the state court will be imposed in a reciprocal proceeding,? exceptions may arise ?if the court finds: (i) a deprivation of procedural due process (usually a want of notice or opportunity to be heard), (ii) an infirmity of proof of misconduct such as would ?give rise to a clear conviction on our part that we could not consistently with our duty accept as final the [state court?s] ultimate conclusion,? or (iii) the existence of some other serious impediment to acceptance of the state court?s conclusion.? Id. at 119 (quoting Selling, 243 U.S. at 51) (brackets in In re Williams).
Preliminarily, the Court observes that the Maine procedure complies with the Selling directives. The Maine Bar Rules provide for notice: they set forth in detail the requirements for reinstatement and the standards by which the petition would be evaluated. ME. BAR RULE ? 7.3(j)(5). The Rules provide for an ample opportunity to be heard. Mr. Williams? petition reveals that he benefited from the following procedural rights: 1) he participated in a hearing before a panel of the Board of Overseers of the Bar; 2) he was represented by counsel at the hearing; 3) he was allowed to present witnesses and documentary evidence; 4) he received a written recommendation from the panel; 5) he exercised his right to object to the panel findings and recommendations; 6) he obtained review of the panel recommendation by the Board as a whole; 7) he received a de novo review of the Board findings and recommendations by a sitting Justice of the Maine Supreme Judicial Court; 8) he received an extensive written decision from that Justice; 9) he appealed Justice Alexander?s decision to the Maine Supreme Judicial Court as a whole; and 10) he received a written opinion from the Maine Supreme Judicial Court denying his appeal. This panoply of procedural safeguards seems on its face to fully comply with the notice and opportunity to be heard requirements in Selling. Mr. Williams produces no probative evidence that the Maine procedure violated the other two Selling concerns: proof of misconduct or some other serious impediment to the acceptance of the state court?s conclusion.
D. Mr. Williams? Equal Protection Challenge
In his verified petition, Mr. Williams claims:
The state decision of the Maine Board of Bar Overseers denying reinstatement constitutes disparate treatment in violation of Petitioner?s Equal Protection Rights as a ?class of one? where Petitioner has ?been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment? under the 14th Amendment to the U.S. Constitution. Village of Willowbrook v. Olech, 428 U.S. 562, 564 (2000).
Pet. at 24. Although this proposition appears in the Verified Petition, despite Mr. Williams? voluminous filings, the Court could find no further reference to an equal protection argument. The Court concludes that Mr. Williams waived the equal protection argument in his verified petition, and to the extent it is being pressed, the argument has been wholly undeveloped. See Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 20?21 (1st Cir. 2009).
E. Mr. Williams? Facial Unconstitutionality Challenge
In his multiple filings, Mr. Williams asserts that Maine Bar Rule 7(j)(6) is facially unconstitutional because it does not provide for a hearing. Pet.?s 3rd Resp. at 3?5. Mr. Williams points to the following language in the Maine Bar Rules:
The Court shall, with or without hearing, grant or deny the petition for reinstatement by written order which may include such conditions to be met by a specific date on the petitioner?s reinstatement as the Court deems necessary to protect the public interest.
Id. at 3 (quoting ME. BAR RULE 7.3(j)(6)) (emphasis in Pet,?s 3rd Resp.). Emphasizing the phrase ?with or without a hearing,? Mr. Williams contends that the Rule grants the Court discretion as to whether to hold a hearing, imposes no objective standards upon which the Court must make this discretionary decision, and fails to describe how the Court is to resolve factual disputes. Pet.?s 3rd Resp. at 4. Mr. Williams further asserts that the Maine Supreme Judicial Court erred when it refused to adopt a supposedly saving interpretation of its Rule; specifically, Mr. Williams says that the Maine Supreme Judicial Court should have allowed the provisions of Maine summary judgment practice to apply to petitions for reinstatement where there was no hearing. Id. at 4?5. Mr. Williams complains that the Maine Supreme Judicial Court cryptically rejected his contention that Maine Rule of Civil Procedure 56 should apply to such petitions for reinstatement. Id. at 5.
Mr. Williams? complaints against the facial unconstitutionality of Maine Bar Rule 7.3(j) are frivolous. Mr. Williams quotes a portion of the Rule badly out of context. Rule 73(j) allows an attorney to apply for reinstatement to the Maine Supreme Judicial Court with a copy to Bar Counsel for the Board of Overseers of the Bar. ME. BAR RULE 7.3(j)(5). Once an attorney applies, Bar Counsel reviews the application and if Bar Counsel agrees that reinstatement is appropriate, the petitioner is so informed and the matter is placed before the Board for consideration at its next available meeting. Id.
If Bar Counsel opposes reinstatement, the petitioner is so informed and ?the matter shall be immediately referred to the Grievance Commission Chair or Vice Chair for hearing which will ordinarily be by a hearing panel of that Commission.? Id. The Rule provides for a hearing before the Grievance Commission, delineates the petitioner?s burden and the Commission?s standards. The Rule requires the Grievance Commission to transmit to the Board its ?findings and recommendations? and provide the Board with any record. ME. BAR RULE 7.3(j)(6). If the petitioner does not object, the Board passes the recommendation to the Maine Supreme Judicial Court. Id. If the petitioner objects, the Board considers those objections and files its recommendations and findings with the Court along with any record that has been made. Id. It is only at this point that the Court is authorized to review the petition, record, recommendations and findings and then determine ?with or without a hearing? whether to grant or deny the petition. Id.
Rule 7.3(j) establishes a review process not unlike the report and recommended decision procedure in federal law. See 28 U.S.C. ? 636(b)(1). A United States District Court Judge is authorized to refer a dispositive matter to a United States Magistrate Judge, who may hold a hearing and issue proposed findings of fact and conclusions of law. Id. When the recommendation comes to the district judge, the judge makes ?a de novo determination? of the recommended decision based on the record before the magistrate judge. Id. The district judge is not required to hold a new hearing, but may consider the record that has been developed before the magistrate judge. Id. Even in the context of criminal cases, the United States Supreme Court concluded that due process rights are adequately protected by ? 636(b)(1) since the district judge has ?the broad discretion to accept, reject, or modify the magistrate?s proposed findings.? United States v. Raddatz, 447 U.S. 667, 680?81 (1980); Witte v. Justices of New Hampshire Supreme Court, 831 F.2d 362, 364 (1st Cir. 1987). The same is true here.
As regards Mr. Williams? contention that Rule 7.3(j) contains no standards by which the Maine Supreme Judicial Court determines whether to hold a hearing, the decision as to whether to hold an additional hearing or to rely exclusively on the Board record is necessarily discretionary. The exercise of judicial discretion must depend upon the issues that the objecting party has raised, the listed standards for reinstatement following disbarment, and the adequacy of the Board record on those issues. In Raddatz, the United States Supreme Court rejected a due process challenge to the exercise of discretion in the analogous ? 636(b)(1) context:
We conclude that the due process rights claimed here are adequately protected by ? 636(b)(1). While the district court judge alone acts as the ultimate decisionmaker, the statute grants the judge the broad discretion to accept, reject, or modify the magistrate?s proposed findings. That broad discretion includes hearing the witnesses live to resolve conflicting credibility claims. Finally, we conclude that the statutory scheme includes sufficient procedure to alert the district court whether to exercise its discretion to conduct a hearing and view the witnesses itself.
Raddatz, 447 U.S. at 680?81; Witte, 831 F.3d at 364 (citing Raddatz for the same proposition); United States v. Cadieux, 295 F. Supp. 2d 133, 135 n.1 (D. Me. 2004) (same). Here, Justice Alexander reviewed the record that had been developed by the panel and the prior record developed at the original disbarment and concluded that no further hearing was in order. Pet.?s Resp. Attach. 5. However, he allowed Mr. Williams to file a brief in support of his position and to file a reply to Bar Counsel?s response. Id. at 2. The Court concludes that Mr. Williams? due process challenge to Rule 7.3(j) is without merit.
The Court rejects Mr. Williams? claim that Rule 7.3(j) is facially unconstitutional.
F. Mr. Williams? As-Applied Constitutional Challenge
1. Summary Judgment
Mr. Williams contends that Justice Alexander?s use of Maine Bar Rule 7,3(j)(6) ?constituted summary judgment? and is therefore unconstitutional. Pet.?s 2nd Resp. at 13?21. Mr. Williams made this same point before the Maine Supreme Judicial Court. See In re Williams, 2010 ME 121, ? 9 n.3, 8 A.3d 666, 669. In rejecting the argument, the Law Court noted that ?no such summary judgment was sought or granted; the court considered Williams?s petition based on the testimonial hearing and Williams?s own submissions, and completed its own fact-finding.? Id.
Even though Mr. Williams? argument on this point is lengthy and emphatic, this Court does not know quite what to make of it. First, Mr. Williams challenges Justice Alexander?s ruling on the assumption that the provisions of Maine Rule of Civil Procedure 56 apply; that because Bar Counsel failed to controvert his affidavit, its contents must be accepted as true; and that he had no prior notice the Court would question the truth of the statements in the affidavit. Pet.?s 2nd Resp. at 23?25. He also complains that Justice Alexander lacked the authority to raise new issues?particularly Mr. Williams? prior disciplinary record?when these issues were ?neither discussed nor introduced by the Board or Bar Counsel.? Id. at 26. However, the Rule 56 procedure does not apply to a petition for reinstatement, and even if it did, could not have applied here since Mr. Williams never filed a motion for summary judgment. Regarding the first point, the Maine Bar Rules expressly provide that Rule 56 does not apply to attorney disciplinary actions. See ME. BAR RULE 7.2(b)(2) (?Rules 12(c), 13, 14, 16, 26 through 37, and 56 of the Maine Rules of Civil Procedure shall not apply to attorney discipline actions?)5; Bd. of Overseers of the Bar v. Sylvester, 650 A.2d 702, 704 (Me. 1994) (stating that ?[t]he Maine Bar Rules incorporate the Maine Rules of Civil Procedure, with certain exceptions?). Second, as the Law Court pointed out, Mr. Williams never actually filed a motion for summary judgment and his petition for reinstatement went forward to hearing. In sum, this Court agrees with the Maine Supreme Judicial Court that the summary judgment procedure is entirely inapplicable to Mr. Williams? case. By any view, his argument does not state an as-applied constitutional infirmity.
2. Prior Disciplinary Record
Mr. Williams asserts that he was denied due process because he was not placed on notice that the Court would review his prior disciplinary record, which he contends was somehow unexpected and unfair. Pet.?s 2nd Resp. at 26?27. In his Order on Mr. Williams? reinstatement petition, Justice Alexander listed the material he reviewed, including the ?record developed in BAR-02-05.? Pet.?s Resp. Attach. 4 at 2?3.
This Court is nonplussed about why Mr. Williams would think his prior disciplinary record would not be considered by the Maine Supreme Judicial Court in addressing his petition for reinstatement. In his petition for reinstatement, Mr. Williams is required to demonstrate by clear and convincing evidence that he possesses ?the moral qualifications, competency, and learning in law required for admission to practice law? and that his reinstatement ?will not be detrimental to the integrity and standing of the Bar.? ME. BAR RULE 7.3(j)(5). The Rule requires that the Court address whether the ?petitioner recognizes the wrongfulness and seriousness of the misconduct.? ME. BAR RULE 7.3(j)(5)(C). To answer this inquiry, the Court must understand the earlier misconduct, and to take judicial notice of an earlier developed public record cannot be a violation of the re-applicant?s due process rights.
3. The state of Georgia and Mr. Williams? Teaching Certificate
Mr. Williams objects to Justice Alexander?s reference to the state of Georgia?s revocation of his teaching certificate, saying that during the proceedings before the Board of Overseers of the Bar, neither the Board nor Bar Counsel had raised the question of whether his teaching certificate problems constituted ?professional misconduct? within the meaning of the Bar Rules. Pet.?s 2nd Resp. at 27?28. Mr. Williams raised this same concern before the Maine Supreme Judicial Court and it rejected the argument, observing that ?[t]he court considered the fact of that revocation, which Williams did not dispute, as evidence of professional misconduct that occurred since the disbarment.? In re Williams, 2010 ME 121, ? 9 n.3, 8 A.3d at 669.
The background, as described in Justice Alexander?s opinion, was that after he was disbarred by the state of Maine on April 7, 2004, a disbarment from which he was then appealing, Mr. Williams applied for a teaching certificate in Georgia in June 2004 and failed to truthfully answer questions about whether he had ever had a professional license revoked and whether there was any investigation or action pending against him. Alexander Order at 8?9. Subsequently, Georgia discovered his misrepresentation and the Georgia Professional Standards Committee initiated a proceeding to have his teaching certificate revoked. Id. at 9. In April 2007, an administrative law judge found Mr. Williams? concealment of his disbarment violated the Georgia Code of Ethics for Educators and ordered his teaching certificate revoked. Id. at 9?10. Mr. Williams appealed this revocation to the Georgia Supreme Court, which affirmed it. Id. at 10. Mr. Williams could hardly claim that the state of Georgia?s revocation of his license to teach was immaterial to his petition for reinstatement of his license to practice law. Instead, he claims that the Board and Bar Counsel did not consider the revocation to be ?professional misconduct.? Pet.?s 2nd Resp. at 27?28. But Mr. Williams himself raised the question of the Georgia suspension before the Board in his Personal Statement, Pet. Attach. 2 at 20?27 (Personal Statement), and the Board raised the matter at the outset of the reinstatement hearing, id. Attach. 1 9:25?11:19 (Tr. of Board of Overseers of the Bar Hearing). Furthermore, in its recommended decision, the Board of Overseers of the Bar?s Report of Panel B on Petition for Reinstatement mentions the teaching license revocation proceeding in Georgia. Panel B Report at 2?3.
Mr. Williams? assertion that neither the Board nor Bar Counsel raised the question of whether his teaching certificate problems constituted ?professional misconduct? is incorrect. Rather, the Panel merely concluded that it did not ?need to make a determination whether the statements of Mr. Williams in his application for his teaching certificate were ?other professional conduct? within the meaning of the Maine Bar Rule? Id. at 9?10. That the Panel raised, but did not decide the issue, did not bind the Justice of the Maine Supreme Judicial Court. This is precisely why the disappointed petitioner is permitted to object and obtain review by a Justice of the Supreme Court: to obtain judicial review of the underlying process. If the Justice were bound by the prior determinations of the Board, there would be no purpose in judicial review.
4. Paul v. Davis and the ?Stigma Plus? Test
Invoking the Due Process Clause of the Fourteenth Amendment to the Constitution, Mr. Williams says that the Maine Supreme Judicial Court procedure violated his federally protected interest in maintaining his good name and reputation. Pet.?s 2nd Resp. at 8?11. He claims the Maine Supreme Judicial Court tarnished his good name and reputation: 1) by making ?derogatory statements against Mr. Williams without factual support ? e.g., claiming that Mr. Williams is ?delusional,? unfit to practice, engaged in professional misconduct as a teacher, etc. ? without any factual basis?; 2) by basing these false statements on ?facts and legal issues that neither Mr. Williams, Bar Counsel, or the Board of Overseers ever presented or knew about prior to the state court?s decision, despite being asked to disclose them?; 3) that the ?state court failed to give Mr. Williams an opportunity to ?clear his name? as required under the due process clause?; and 4) that ?these false statements and findings were published and prevent[] Mr. Williams from admission in other jurisdictions.? Id. at 10.
Mr. Williams cites Paul v. Davis for application of the ?stigma-plus? test for constitutionally violative defamation. Paul v. Davis, however, adds nothing to this case. There, the United States Supreme Court rejected the proposition that ?reputation alone, apart from some more tangible interests such as employment, is either ?liberty? or ?property? by itself sufficient to invoke the procedural protection of the Due Process Clause.? 424 U.S. at 701. However as the First Circuit explained in Pendleton v. City of Haverhill, 156 F.3d 57 (1st Cir. 1998), to benefit from a ?stigma-plus? theory, the words spoken by the government official must be ?uttered incident to the termination.? Id. at 63 (quoting Siegert v. Gilley, 500 U.S. 226, 234 (1991)). Here, there is no suggestion that Justice Alexander?s descriptions of Mr. Williams caused his termination from any employment, and the Court rejects Mr. Williams? contention that the Due Process Clause applies to the state of Maine reinstatement proceedings because he suffered a ?stigma plus?.
At the same time, the Court is curious why Mr. Williams brought Paul v. Davis into his reinstatement petition in an apparent effort to establish his right to due process in the state proceeding. Mr. Williams? right to due process in the state reinstatement proceeding was established by the United States Supreme Court in Selling in 1917 and is not contested. 243 U.S. at 50?51. Selling instructed the federal courts to review the state court proceeding to determine whether it suffered from ?want of notice or opportunity to be heard.? Id.; In re Williams, 398 F.3d at 120. If Mr. Williams? point were that the scope of due process rights under Paul v. Davis is greater than the scope of his due process rights under Selling, he does not say so. It seems that Mr. Williams? Paul v. Davis issue is an argument for the sake of argument, exhorting the Court to declare uncontested constitutional rights.
5. Res Judicata
Mr. Williams says that Justice Alexander erred in raising and applying against Mr. Williams the issue of res judicata. Pet.?s 2nd Resp. at 28?30. He points to Justice Alexander?s reference to the resolution of Mr. Williams? appeal of the revocation of his Georgia teaching certificate. Id. at 30. Mr. Williams contends that Justice Alexander improperly applied the doctrine of res judicata to the decision of the Georgia courts. Id. at 29?30.
Mr. Williams is incorrect. Res judicata has nothing to do with Justice Alexander?s use of the results of the Georgia litigation. The Georgia litigation was prominently mentioned in Mr. Williams? own personal statement and at the Panel B hearing, and when Mr. Williams objected to the Board action, it appears that the results of the Georgia litigation were before the Board and the Court and to the extent the opinions were not, Justice Alexander was entitled to take judicial notice of them.6 Mr. Williams? real objection is that, unlike Panel B, Justice Alexander expressly held against Mr. William, his failure to be entirely candid when he obtained his Georgia teaching certificate. Mr. Williams has no due process right to have evidence interpreted in a fashion that is only favorable or neutral to him.
6. Credibility Determinations
Mr. Williams claims that Justice Alexander?s failure to make credibility determinations amounted to a denial of due process. Id. at 30?34. To the extent this argument is interwoven, as it appears to be, with Mr. Williams? summary judgment argument, the Court rejects it. To the extent Mr. Williams? argument is that Justice Alexander?s twenty-six page Order is so bereft of detail that it amounts to a denial of due process, the Court rejects that contention as well.
7. Mr. Williams? Arrogance
Mr. Williams has repeatedly complained about the Panel?s use of the word ?arrogance? to describe him. Id. at 34?39. The following language appears in the Panel B recommendation:
The Panel also finds, however, that Mr. Williams appears to have retained some of his demonstrated arrogance and the inability to recognize that the ethical rules imposed on attorneys are not rules that can be sidestepped by a clever argument or rhetoric.
Panel B Report at 10. However, as Justice Alexander pointed out, it was Mr. Williams himself who first used the term to describe himself. Alexander Order at 18?19. In his Personal Statement, the following reference among others appears:
In keeping with the old adage, ?two wrongs don?t make a right,? neither does the ignorance and bigotry that I fought so vehemently against for the minority and lower class citizens of Maine justify my arrogance to view my actions as an entitlement: carte blache (sic) to flout the Code of Professional Responsibility whenever it suits me.
Personal Statement at 33?34. When Mr. Williams complained about his own description being used against him, Justice Alexander?not unreasonably?pointed out that ?[t]he word ?arrogance? was introduced into the proceedings, not by the Grievance Panel, but by Williams, who used it repeatedly in his personal statement and testimony to discuss his failings that led to his disbarment.? Alexander Order at 18?19.
Mr. Williams continues to complain. However, it is hardly a violation of due process in evaluating a petition for reinstatement to use a litigant?s own acknowledgement of one of his less appealing personal attributes, particularly an attribute that can affect the petitioner?s suitability to practice law.
G. Arbitrary and Capricious Fact-Finding and Grave Reason
In his Second Response, Mr. Williams lists two additional contentions: 1) that the state court determined the underlying facts in an arbitrary and capricious manner and that its findings lacked evidentiary support; and 2) that Mr. Williams had asserted a grave reason that the state court findings should not be considered by this Court. Pet.?s 2nd Resp. at 2?3. These issues appear to emanate from Selling. See 243 U.S. at 51 (stating that in addition to want of notice or opportunity to be heard, a federal court should review the state court judgment to determine whether there was an ?infirmity of proof as to facts found to have [been] established? or ?some other grave reason? for rejecting the state court?s conclusions). However, Mr. Williams never separately developed his position on these issues. Accordingly, the Court concludes that he has waived these issues by failing to present them. Alternatively, to the extent these issues have been subsumed by the other legal issues Mr. Williams has raised, the Court has addressed them within the context of its discussion of those issues.
H. Brinkerhoff-Faris Trust & Savings and Retroactivity
In his Third Response to the show cause order, Mr. Williams asserts that the Maine Supreme Judicial Court?s interpretation of ?professional misconduct? violated his due process right to notice under Brinkerhoff-Faris.7 Pet.?s 3rd Resp. at 5?26. Mr. Williams? Brinkerhoff-Faris argument is multi-faceted but the Court has resolved the issue on Mr. Williams? general premise.
To place the argument in context, one of the criteria for reinstatement is that the petitioner must not have ?engaged in any other professional misconduct since . . . disbarment.? ME. BAR RULE 7.3(j)(5)(D). In his Order on Reinstatement, Justice Alexander considered Mr. Williams? misconduct in making an untruthful statement on his applications for teacher certification in Georgia to constitute ?professional misconduct.? Alexander Order at 24. Justice Alexander explained that the misstatement on his teacher certification applications ?relates to his professional qualifications to be a lawyer because it attempted to hide the attorney disciplinary action taken against him and was a statement of untruth in an application for certification for a professional position.? Id. Mr. Williams asserts that the Maine Supreme Judicial Court previously defined ?professional misconduct? as limited to ?acts which within the scope of a person?s actions directly within the practice of law ? whether as a paralegal or as a pro se litigant ? that would violate the Maine Bar Rules.? Pet.?s 3rd Resp. at 7 (emphasis in original). Mr. Williams then says Justice Alexander?s interpretation of ?professional misconduct? reaches so far beyond the Law Court?s prior interpretations to amount to a denial of the notice requirement of the Due Process Clause and a retroactive application of a new rule in violation of Brinkerhoff-Faris. Id. at 7?10.
The Court rejects this argument. The Maine Supreme Judicial Court has never held that ?professional misconduct? is limited to misconduct by attorneys practicing the legal profession. Rather, it is equally applicable to disbarred attorneys who engage in ?other professional misconduct? regardless of the profession. In fact, this portion of the Maine?s Bar Rule addresses reinstatement for attorneys who have resigned, who have been suspended for more than six months, or who have been disbarred. See ME. BAR RULE 7.3(j). The Bar Rules require not only that ?[t]he petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment,? but also that ?[t]he petitioner has neither engaged nor attempted to engage in the unauthorized practice of law.? Id. 7.3(j)(5). The concomitant prohibition on unauthorized legal practice and other professional misconduct logically requires that ?any other professional misconduct? apply broadly to any profession, not merely the law. Otherwise, the ?other professional misconduct? phrase would have little or no effect.8 In any event, Mr. Williams had no right to anticipate that the Maine Supreme Judicial Court would restrict its interpretation of the phrase ?other professional misconduct? and the Law Court?s construction of the phrase does not represent forbidden retroactivity under Brinkerhoff-Faris.
Mr. Williams? other Brinkerhoff-Faris arguments are too far-fetched to require discussion.
I. Asserted Violations of Local Rule
In his Notice of Objections, Mr. Williams alleges that the District Court has violated its own rules in addressing his petition for reinstatement. Pet.?s Ob. at 15?17. He points to the portion of the Local Rule which requires the Chief Judge to refer the petition for reinstatement to counsel and assign the matter for hearing before one or more of the Judges of this Court. Id. at 17 (citing D. ME. LOC. R. 83.3(g)(3)). He claims that the failure to make the compulsory referral constitutes a violation of the local rule.
He is wrong. The Court has the inherent and express authority to relax its own rules ?when justice requires.? D. ME. LOC. R. 1(a). Here, from the face of the petition for reinstatement, it is apparent that Mr. Williams does not possess an essential prerequisite for readmission: membership in the state of Maine bar. This being the case, the Chief Judge has the authority to screen the petition and to assign it to himself in doing so. Local Rule 83.3(g)(3) provides for a hearing but does not define the nature of the hearing. Here, the Court determined that, in view of the nature of the claim?namely a Selling issue?it could properly rely on the record generated at the state court proceeding. This determination is not contrary to the District Court?s Local Rules.
J. Satisfaction of Reinstatement Requirements
The Court has concluded that Mr. Williams has not established a state violation of his due process rights under Selling and thus does not reach the question of whether, if he were reinstated at the state level, the Court would grant reinstatement in this Court. Nevertheless, based on Mr. Williams? performance in this petition for reinstatement, it is important for him to realize that the Court has grave doubts as to his fitness to practice law. Mr. Williams is highly articulate and voluble and his case law citations give his contentions a patina of legitimacy. However, upon analysis, none of his legal arguments carries any persuasive force. For example, here, he has insisted on the application of summary judgment practice to reinstatement proceedings before the Board of Overseers of the Bar despite the express inapplicability of Rule 56 to such proceedings. He raised the question of the Georgia proceedings and then complained when Justice Alexander referred to them. He described himself as arrogant and objected when Justice Alexander accepted his own description. He cited seminal cases, such as Brinkerhoff-Faris and Paul v. Davis, when neither case has any applicability to his petition. He badly misread a straightforward Court Order as if it required the re-filing of previously filed documents. He attempted to manufacture a controversy with the Clerk of the Maine Supreme Judicial Court and to misuse legal process by seeking to subpoena documents that were already a matter of record in this petition. The Court was required to intervene twice to clarify the obvious and prevent further mischief. The Court could go on but will not.
In support of his own petition for reinstatement, Mr. Williams had every incentive to put forward his very best legal work. Instead, Mr. Williams has presented the Court with a repetitive, contentious, voluminous, rhetorically rich, but substantively empty petition. As this opinion demonstrates, it often takes an inordinate amount of time and effort to determine why a legal argument is frivolous, but the length of this opinion should not comfort Mr. Williams. To the contrary, the Court is more convinced than ever that none of his arguments is meritorious and it is more concerned than ever that his return to the practice of law will invite similar baseless arguments on behalf of members of the public. Based on this performance alone, the Court has serious questions about the advisability of allowing him to return to practice in this District.
Should Mr. Williams elect to file another petition for reinstatement, he should be prepared to demonstrate 1) that he has been reinstated to the bar of the state of Maine; 2) that if he had not, there is a truly legitimate basis for claiming that the state of Maine process failed to accord him essential due process rights under Selling; and assuming he crossing those hurdles, 3) that he demonstrates by clear and convincing evidence that he meets each of the qualifications of Local Rule 83.3(j), including that he ?possesses the moral qualifications, competency and learning in the law required for admission to practice law before this Court and that petitioner?s resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive to the public interest.? D. ME. LOC. R. 83.3(g)(3).
III. CONCLUSION
The Court concludes that the proceedings of the Maine Supreme Judicial Court and the Board of Overseers of the Bar gave Charles G. Williams, III constitutionally sufficient notice and an opportunity to be heard under Selling and since he has not demonstrated to this Court that he is a member of the bar of the state of Maine, the Court concludes that his petition for reinstatement must be denied. The Court OVERRULES Charles G. Williams, III?s objections (Docket # 21) and DENIES Charles G. Williams, III?s Verified Petition for Reinstatement (Docket # 1).9
SO ORDERED.
FOR THE COURT
John A. Woodcock, Jr. ? Chief United States District Judge
Footnotes
1This Amended Order corrects grammatical errors contained in the Order dated April 6, 2011 (Docket #29). The word ?adjective? was used in the first and fifth sentences of Section II.F.7. The first sentence should read: ?Mr. Williams has repeatedly complained about the Panel?s use of the word ?arrogance? to describe him. The fifth sentence should read: ?When Mr. Williams complained about his own description being used against him, Justice Alexander?not unreasonably?pointed out that ?[t]he word ?arrogance? was introduced into the proceedings, not by the Grievance Panel, but by Williams, who used it repeatedly in his personal statement and testimony to discuss his failings that led to his disbarment.? Alexander Order at 18?19.
2Despite the fact Mr. Williams? third response was late and he filed no motion for late filing, the Court will consider it.
3Following this suspension, Mr. Williams filed a number of motions and petitions with this Court and with the Court of Appeals for the First Circuit. See Bd. of Overseers of the Bar v. Williams, No. 2:02-mc-42-GZS (Docket #s 6, 10, 15, 16, 20, 25, 26, 30, 36?39).
4The Court pieced together these issues from Mr. Williams? multiple filings.
5The Rule provides for certain exceptions not relevant here. ME. BAR RULE 7.2(b)(2) (A)?(C).
6Mr. Williams has not provided the Court with any of the Georgia decisions and, as the Court warned him, it is his burden to present the Court with the record of the proceedings below. Order to File Record at 1. The record refers to the Georgia litigation but it contains no record of the actual litigation. To the extent Mr. Williams? argument relies on what happened in Georgia and when it happened, his argument fails because he has failed to produce the necessary record. See In re Williams, 398 F.3d at 120 n.1 (?The respondent attorney's other claims are forfeit because he has failed to supply this court, despite several requests, with material portions of the record of the state court disciplinary proceeding?).
7Mr. Williams relies upon Brinkerhoff-Faris? statement that ?[t]he federal guarantee of due process extends to state action through its judicial as well as through its legislative, executive, or administrative branch of government.? Pet.?s 3rd Resp. at 5 (citing Brinkerhoff-Faris, 281 U.S. at 680)).
8It will be rare that a petitioner for reinstatement would have continued to practice law during the period of suspension or disbarment. Although the possibility exists for a petitioner to hold valid bar memberships in other jurisdictions, which do not impose reciprocal discipline, there is no suggestion that Maine Bar Rule 7.3(j)(5) was intended to apply only to lawyers whose right to practice law in other jurisdictions was not suspended during the period of suspension or disbarment in Maine.
9The Court DISMISSES its Order to Show Cause (Docket # 2) since it has otherwise reached the merits of Mr. Williams? petition for reinstatement.
Board of Overseers of the Bar v. In Re Thomas M. Mangan
Download Download Decision (PDF)
Docket No.: 10-6
Issued by: Supreme Judicial Court
Date: April 11, 2011
Respondent: Thomas M. Mangan
Bar Number: 001743
Order: Reinstatement Denied
Disposition/Conduct: Petition for Reinstatement is DENIED
ORDER ON PETITION
Thomas M. Mangan has petitioned the Court seeking reinstatement to the Bar of the State of Maine. See M. Bar R.7.3(j)(1),(5). For the reasons set forth in this decision, his petition for reinstatement is denied.
Mangan began practicing law in Maine in 1975. He was disbarred in 2000 by an order of a single justice of this Court. See Bd. of Overseers of the Bar v. Mangan, BAR-99-5, 2 Maine Manual on Professional Responsibility SJ-507 (Mar. 10, 2000) (Saufley, J.). Mangan appealed that order, which was affirmed by the Law Court. See Bd. of Overseers of the Bar v. Mangan, 2001 ME 7,1,763 A.2d 1189, 1190-91. Mangan's disbarment resulted from several violations of the Maine Bar Rules based upon his improper use of his client escrow account, his neglect of legal matters entrusted to him, his failure to account for receipts related to client matters, and his sexual relationship with a client that adversely affected his representation of the client and abused the attorney-client relationship. Id. n.1, 763 A.2d at 1190. Pursuant to the disbarment order, Mangan was permitted to seek reinstatement after the expiration of two years.
Mangan applied for reinstatement on March 11, 2010. The petition was considered by a Panel of the Grievance Commission of the Board of Overseers, which conducted a testimonial hearing in June 2010. The Panel issued a written report with detailed findings that recommended against Mangan's reinstatement to the Bar. By a unanimous vote, the Board of Overseers adopted the Panel's findings and recommendations.
Now that the Board has reviewed the Panel's report and made its recommendation to the Court, Mangan's petition for reinstatement is properly before the Court. See Williams v. Bd. of Overseers of the Bar, BAR-09-13, at 2 (May 10, 2010) (Alexander, J.). After the Board informs the Court of its findings and recommendations, "[t]he Court shall, with or without hearing, grant or deny the petition for reinstatement by written order which may include such conditions to be met by a specific date on the petitioner's reinstatement as the Court deems necessary to protect the public interest." M. Bar R. 7.3(j)(6). The Court reviews a petition for reinstatement to the practice of law de novo.1 See Williams, BAR-09-13, at 19-20.
As the petitioner, Mangan has the burden of proving by clear and convincing evidence that he should be reinstated to the practice of law. See M. Bar R. 7.3(j)(5); In re Williams, 2010 ME 121, 6, 8 A.3d 666, 668. Specifically, the petitioner bears the burden of "demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State," and that "it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest." M. Bar R. 7.3(j)(5).2
A case conference was held on November 4, 2010, at which the Board was represented by J. Scott Davis, Esq., and Mangan was represented by Caleb J. Gannon, Esq. Neither the Board nor Mangan desired an evidentiary hearing before the Court, and it was stipulated that the record before the Board would serve as the evidentiary record for the Court's determination of Mangan's petition. That record contains the transcript of the testimony of Mangan; Ronald Berry, Mangan's life-long friend; and Frederick A. White, Ph.D., a clinical psychologist who met with Mangan. The record also comprises the exhibits Mangan submitted to the Panel, as well as the supplementary documents filed with the Court upon stipulation of the Board and Mangan.3 Having carefully considered the testimony and the exhibits in this matter, I make the following factual findings and legal conclusions.
Since his disbarment in 2000, Mangan has been continuously employed in a variety of jobs, primarily as either a retail marketer or a paralegal. He and his former wife were divorced in2002. Since then, he has been in a relationship with his current girlfriend with whom he resides in Poland, Maine. The testimony and exhibits presented to the Panel focus largely on Mangan's law-related activities since his disbarment, and the degree to which he understands the wrongfulness of the actions that resulted in his disbarment.
A. Litigation Against Complaining Witness, Bar Counsel, and Assistant Bar Counsel
Mangan's law-related activities in the years immediately following his disbarment do not reflect positively on his moral qualifications, competency, and learning in the law required for admission to practice. In response to his disbarment, Mangan engaged in a campaign of litigation against those he deemed most responsible for his misfortune. He filed a complaint in the United States District Court for the District of Maine against the former client with whom he had a sexual relationship and who was also the complaining witness in the disciplinary proceeding brought against him. See Mangan v. Rumo, 226 F. Supp. 2d 250 (D. Me. 2002). Mangan sued his former client "for malicious prosecution, abuse of process, intentional interference with an advantageous relationship, defamation, and intentional infliction of severe emotional distress." Id. at 252. The former client counterclaimed "for malpractice; negligent and intentional infliction of emotional distress; and punitive damages." Id. The court granted summary judgment against Mangan on his claims of malicious prosecution, abuse of process, interference with an advantageous relationship, and defamation Id. at 252. Despite a strong suggestion by the court,4 Mangan pursued his remaining claim of intentional infliction of severe emotional distress before a jury. See Mangan v. Davis, 263 F. Supp. 2d 130, 130 (D. Me. 2003). The jury awarded no recovery to either party. Id.
Mangan filed a second action in federal court, naming J. Scott Davis, Esq, and Karen Kingsley, Esq., the bar counsel and assistant bar counsel who prosecuted the bar complaint against him, as well as his former client, as defendants. Id. Mangan accused each defendant of "presenting false evidence, fabricating evidence and perjury in connection with his disbarment proceedings." Id. The court dismissed Mangan's complaint based on well-established principles of claim preclusion:
The issues Mangan raises in his complaint are "inextricably intertwined" with the State court's "decisions, in judicial proceedings," to disbar Mangan after hearing, including a review by the highest court ofthe State, and the denial ofa later motion for relief from judgment where Mangan charged that Rumo and bar counsel perpetrated a fraud upon the court. Id. at l3l (citation omitted). The court also reasoned that the "Rooker-Feldman" doctrine applied because "many of the same claims were raised or could have been raised during those state court proceedings or (in Rumo's case) the federal lawsuit." Id.
Following the dismissal of this second action, Mangan appealed to the United States Court of Appeals for the First Circuit, which affirmed the dismissal. See Mangan v. Davis, 2003 U.S. App. LEXIS 26407, at *1 (lst Cir. Dec. 30, 2003). He then filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on June 1, 2004. See Mangan v. Davis, 541 U.S. 1077 (2004).
ln his testimony before the Panel in June 2010, Mangan offered little insight concerning the propriety of this litigation. He did acknowledge that he was acting out of anger because of his disbarment, and that, currently, he views the cases as having been "educational experiences." He expressed no regret for the expense and inconvenience he caused the individuals he sued, or for the waste of judicial resources resulting from his claims. In fact, in responding to a question from his attorney about the litigation, Mangan ascribed blame to his former client's vulnerability for his disbarment:
Q.
There was some discussion conceming the number of matters that you had brought shortly after disbarment. Could you explain how your understanding --we've discussed some of this, but could you discuss how your understanding of the actions that resulted in your disbarment changed over a period of now 10 years?
A.
Over the space of 10 years you realize that what you did was wrong, that you cannot -in that particular case apparently Judge Saufley found that I had taken advantage of a vulnerable woman, and the advantage of that vulnerable woman is primarily a sexual relationship. And during that period of time I had given her thousands of dollars. And it was a good relationship, but the relationship between the two of us went sour after we broke it up and then she turned around and filed a complaint. But then you look at the situation and say, wait a minute now, if women are going to be that vulnerable, you have to be very, very careful as to what you're doing and why. You're not going to get involved with anybody who's vulnerable, let alone a man and a woman. Any person that would have any vulnerability whatsoever in any kind of fashion you just back right off from and everything has to be done on a strictly businesslike manner. And in many ways you are concerned about showing emotion, you're concerned about feeling bad for somebody. It's to the point of an extreme.
Mangan's unsuccessful federal actions establish that during the four years following his disbarment, he failed to accept responsibility for the loss of his license to practice. In addition, his present failure to fully and critically evaluate the judgment he exercised in bringing, trying, and appealing these cases, or to recognize the serious adverse consequences for the individuals he sued, demonstrates that he continues to fail to exercise the judgment required for an attorney to practice law competently.
B. Litigation Against Former Counsel
To petition for reinstatement, Mangan was required to complete a questionnaire in accordance with M. Bar R. 7.3(j)(5). The questionnaire requested, among other things, detailed information regarding every civil action that he had been involved in following his disbarment.5 In his response, Mangan listed the two federal actions previously discussed, as well as fourteen additional lawsuits, most of which appear to have been actions he initiated against former clients to collect legal fees.
When questioned by Bar Counsel before the Panel, Mangan testified about another lawsuit that he had failed to disclose in his written response:
Q. You also sued Lenny Sharon, didn't you, for malpractice?
A. Yes, sir.
Q. I don't see that on the list.
A. I believe it's in there somewhere. I think I had it in there.
Q. Maybe you're right, but here is the beginning and then there's the list and that list. If you can find it, help me.
A. I don't know how it's -
Q. If you can see Sharon -
A. I don't know. I assumed that you were going to send me copies of your exhibits and you never did.
Q. Whoa, whoa, whoa. I'm talking about your answer to the questionnaire of all the civil litigation you've been involved in since you were disbarred. That's not me. That's you.
A. I don't recall listing that.
Q. I know. That's what I'm asking you. Where is it?
A. I don't see it.
Q. Did you sue Lenny Sharon?
A. I did.
Q. Why? What's the grounds?
A. Because of his failure to investigate the matter.
Q. He was your defense counsel on the matter that resulted in your disbarment, correct?
A. Yes.
Q. The result of your action against Mr. Sharon was summary judgment in his favor?
A. That's correct. And the reason for that is I had no expert. But these are all eight years ago.
Q. So is a lot of this stuff you've listed, all your little nickel [and] dime suits you're going after; but you didn't bother to list the suit against Lenny Sharon?
A. It's still eight Years ago.
I take judicial notice, based on the records of the Androscoggin county Superior Court, that Mangan filed a civil complaint alleging legal malpractice against Leonard I. Sharon, Esq., on May 17, 2006. The action concluded with an order dated May 9, 2007, granting Attorney Sharon's motion for a summary judgment. The court (Gormin, J.) found that Mangan had filed the action beyond ihe-applicable statute of limitations period and tha! Mangan had failed to secure an expert witness to establish the requisite standard of care.
Accordingly, the Superior court's records demonstrate that: (l) Mangan failed to disclose in his application for reinstatement the legal malpractice action he filed in 2006 against the attorney who had represented him in his disbarment proceeding; (2) the summary judgment entered against him was not "eight years ago" as he testified, but was just under four years ago; and (3) the action was dismissed not only because Mangan failed to secure an expert witness, as he testified, but also because he failed to file the action in a timely manner.
Mangan's failure to disclose this action in his response to the questionnaire, and his mischaracterization of the action in his testimony, demonstrates either carelessness or an intentional effort to mislead the Board and the court. It is apparent, that Mangan had not come to terms with his personal responsibility for his disbarment by 2003, as he now claims.6 Indeed, Mangan began his lawsuit against Attomey Sharon in 2006. As with his earlier federal actions, Mangan's state lawsuit sought to hold another person-in this instance, his own lawyer-responsible for his disbarment.
C. Unauthorized Practice of Law
In 2001, two criminal complaints were filed against Mangan as a result of him having described himself as a licensed attorney in a resume that he sent to prospective employers. In one instance, Mangan submitted the resume to apply for a position as a special education teacher. Following a jury trial on these criminal charges, Mangan was convicted of unauthorized practice of law (Class E), 4 M.R.S. 807(1), (2) (2010), and false advertising or representation to be an attorney (Class E), 4 M.R.S. 859 (2010).
In his testimony before the Panel, Mangan sought to minimize the seriousness of these criminal convictions. When asked whether he had engaged in the unauthorized practice of law after his disbarment, he testified, "Well, I sent out resumes in the year 2001; and those were the old resumes." He also explained, "I did not believe that a resume for a nonlegal job as, I don't know, a special ed teacher was cause for concern to the Bar."
Mangan does not appear to fully appreciate the wrongfulness of presenting himself in a false light to prospective employers and in violating the laws that prohibit him, as a disbarred attorney, from falsely representing that he is licensed to practice law in Maine.
D. Employment as a Paralegal
Apart from his own litigation, Mangan's primary involvement with the law since his disbarment occurred from October 2007 to March 2010 when he worked as a paralegal for Andrews B. Campbell, Esq. In support of his petition for reinstatement, Mangan asserts that he has "competency and proficiency in law" based on his "demonstrated employment with Andrews B. Campbell, Esq. for the previous two and a half years." Despite this assertion, Mangan did not include a letter of recommendation from Attorney Campbell in support of his petition for reinstatement, nor did he present Attorney Campbell as a witness to testify as to the quality of his paralegal work and his suitability to return to legal practice.7 Without Attorney Campbell's testimony, I cannot fully evaluate and therefore do not accept Mangan's testimony that his work as a paralegal demonstrates his capacity to return to legal practice.
E. Evidence of Counseling
Mangan presented the report and testimony of Frederick A. White, Ph.D., a licensed psychologist who concluded that "Mangan now possesses and is able to demonstrate a clear awareness and understanding of the nature of conflicts of interest, dual-relationships, and strategies for preventing and remediating such circumstances." Dr. White testified that he first met with Mangan on December 8, 2009, and that they had their last meeting on January 8, 2010, "for a total of four contact sessions."
In contrast, Mangan testified to the Panel as follows:
Q. When did you start seeing Dr. White?
A. '09.
Q. Do you know when?
A. September, October, November, December of 2009.
Q.. So less than a year ago?
A. Oh, yes.
Q. When did you stop?
A. April, March.
Mangan's account of his meetings with Dr. White cannot be reconciled with Dr. White's testimony. The same is true for Mangan's characterization of the counseling in the written petition that he filed with the Board. In his petition, Mangan represented that he had engaged in "long term counseling.
Mangan testified, and I find, that he now understands the nature of the ethical violations that led to his disbarment. He further testified that he understands the various steps that he might take as a practicing attorney to avoid any similar violations of the code of Professional Responsibility if he is readmitted to practice. These understandings, however, miss the mark. Mangan's readmission to the Bar does not rest primarily on his understanding as to what he did wrong and what he will need to do to avoid the same mistakes in the future. Rather, his burden is to prove to the high standard of clear and convincing evidence that he currently possesses the "moral qualifications, competency, and learning in law required for admission to practice law in this State," and that "it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest." M. Bar R. 7.3(j)(5).
Based on my findings, it is apparent that Mangan has failed to meet his burden of proof. The (l) unsuccessful litigation Mangan initiated in response to his disbarment, (2) two criminal convictions resulting from his unauthorized practice of law and false advertising or representation, and (3) serious errors and omissions in his petition for reinstatement and his testimony before the Panel, lead me to conclude that Mangan does not have the requisite honesty, competency and learning in the law required to resume legal practice in Maine. I also conclude that his reinstatement would be detrimental to the integrity and standing of the Bar.
It is ORDERED that the petition for reinstatement is DENIED.
For the Court
Jon D. Levy, Associate Justice Maine Supreme Judicial Court
Footnotes
1 As explained in Williams:
The ultimate responsibility to decide a petition for reinstatement by a disbarred attorney is by the Court's. The Grievance Panel and the Board of Overseers of the Bar are the agents delegated by the Court to review these matters, develop a record, and make recommendations, but the ultimate decision on these matters must be made by the Court de novo, not as a matter of deferential review of recommendations forwarded to it.
Williams v. Bd. Of Overseers of the Bar, BAR-09-13, at l9-20 (May 10,2010) (Alexander, J.).
2To determine whether a petitioner has satisfied his or her burden of proof, the Court considers evidence that:
(A) The petitioner has fully complied with the terms of all prior disciplinary orders; (B) The petitioner has neither engaged nor attempted to engage in the unauthorized practice of law; (C) The petitioner recognizes the wrongfulness and seriousness of the misconduct; (D) The petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment; (E) The petitioner has the requisite honesty and integrity to practice law; (F)The petitioner has met the continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (l) no more than one half of the credit hours are earned through in-office courses, self-study, or a combination thereof; and (2) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility.
M. Bar R. 7.3(j)(5)(A)-(F); see also Williams v. Bd. of Overseers of the Bar, BAR-09-13, at 20-21 (May 10, 2010) (Alexander, J.).
3The Board and Mangan stipulated that the Board would supplement the record by filing (1) a transcript of a sentencing hearing conducted by Justice Kevin Cuddy of the Maine Superior Court, at which Mangan had appeared in his capacity as a paralegal, and (2) documentation of Mangan's attendance at continuing legal education programs.
4 After addressing the parties' summary judgment motions, the trial judge intimated that further litigation would be imprudent. What remains for trial, then, are Mangan's claim of intentional infliction of emotional distress through false rape allegations and Rumo's counterclaims based upon a sexual liaison during a lawyer-client relationship. The trial will not be pretty. Both parties would be well advised to put this matter behind them before then. The record they have compiled in this court, however, gives little reason for optimism. Mangan v. Rumo, 226 F. Supp. 2d 250,255 (D. Me. 2002).
5On the questionnaire, the relevant question directed Mangan to:
PROVIDE A STATEMENT SHOWING THE DATES, GENERAL NATURE AND FINAL DISPOSITION OF EVERY CIVIL ACTION, IN ANY JURISDICTION, DURING THE PERIOD FOLLOWING TERMINATION IN WHICH YOU WERE EITHER A PARTY PLAINTIFF OR DEFENDANT OR IN WHICH YOU HAD OR CLAIMED AN INTf,REST, TOGETHER WITH DATES OF FILING OF COMPLAINTS, TITLES OF COURTS AND THE NAMES AND ADDRESSES OF ATTORNEYS FOR SAID PARTIES AND OF THE TRIAL JUDGE OR JUDGES' AND THE NAMES AND ADDRESSES OF ALL WITNESSES WHO TESTIFIED IN SUCH ACTIONS.
6Mangan provided the following testimony in response to questioning by a member of the Panel: Q. And, so, the Associate Justice Saufley at that time has a single justice opinion ordering your disbarment. You appealed that to the law court. And then subsequent to losing that appeal in the law court you sued the young lady, the lady who had been your client and girlfriend? A. Mm-hm. Q. You sued Mr. Davis? A. Mm-hm. Q. And someone else, if l understand correctly, about things that -and Mr. Sharon about activities that revolved around the investigation and prosecution-testimony and eventual disbarment for this misconduct. A. Exactly, Q. And all of those lawsuits resulted in dismissals or judgments for the defense, correct? A. No, not really. Q. So you prevailed in the claim? A. Well, no. In the claim that I had against [my former client], they had counterclaimed for a great deal of money; and a jury came back in my favor on that one awarding nothing. But outside of that, this is kind of like the alcoholic who has to go through his various stages of resolution of life or somebody who is in the process of dying. You initially are declared a certain thing and then you go to the next stage and that's angry, repelling, fighting back and saying no, denial type of thing. And then as you go through the different stages you realize, oh, maybe people can see it that way. You'll notice all of these actions were in 2002, 2003. I think the last one was in 2003. I don't think it was in 2004. I think everything just died in 2003. That would be seven years ago. And from that point on you start thinking, wait, is it me or is it everybody else. And you have to realize that it's you, and at that point in time you start realizing what you have to do is change your life. It's not a simple matter anymore.
7 I have not sought to summarize all of the evidence Mangan has provided in support of his petition. For example, he presented evidence of having attended several continuing legal education programs, and he submitted a total of ten professional and personal reference letters, four of which were from practicing attorneys, expressing support for his return to legal practice. I have no reason to doubt that Mangan attended the educational programs or the sincerity of the beliefs expressed in his references. The probative value of this evidence on the question of Mangan's capacity to return to legal practice, however, is diminished by the conspicuous absence of Attorney Campbell's testimony because Attorney Campbell, as an active member of the Maine Bar who supervised Mangan's paralegal work, was in a position to observe and evaluate Mangan's actual performance.
Board of Overseers of the Bar v. William A. Fogel, Esq.
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Docket No.: BAR 99-7
Issued by: Single Justice, Supreme Judicial Court
Date: March 10, 2000
Respondent: William A. Fogel, Esq.
Bar Number: 007435
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney
ORDER
This matter came before the Court on March 10, 2000 pursuant to an information filed by the Board of Overseers of the Bar. The Board was represented by Bar Counsel J. Scott Davis. Defendant William A. Fogel was present and appeared pro se. The referring judge, U.S. District Court Chief Judge D. Brock Hornby was made aware by Mr. Davis of the parties' proposed resolution of this grievance matter and has taken no position in that regard. Other complainants were also made aware of the proposed resolution.
Stipulations
The parties have stipulated to the following material facts: On or about December 6, 1996 Fogel filed and represented the Plaintiff in a matter in the U.S. District Court, District of Maine at Portland, entitled Anne Dickstein v. State Farm Mutual Automobile Insurance Company, Civil No. 96-355-P-H. On December 15, 1997 Chief Judge D. Brock Hornby was informed that Fogel's current office manager had previously worked on the Dickstein case in her former employment as the Court's case manager. As a result, the Court suggested that counsel for both parties review the docket sheet to confirm whether that former case manager's service to the Court on that case had actually resulted in any issue for the Court or counsel. From that review it appeared that a case manager other than Fogel's employee had handled confidential settlement papers that State Farm had filed in camera on August 18, 1997. Fogel was not personally present for any December pre-trial hearing because he spent extensive time in California tending to his father, who was terminally ill.
Trial of the Dickstein matter commenced on January 28, 1998, Fogel having returned to Maine following his father's funeral. At the end of the first day's trial, Chief Judge D. Brock Hornby set forth on the record the Court's understanding of Fogel's office manager's limited earlier involvement on the Dickstein matter as the Court's case manager therein - as supported by each case manager's respective initial entries on the docket sheet - and that therefore nothing further needed to be done or corrected.
The Court at that time specifically stated on the record that the Court understood the in camera settlement papers filed by each of the respective parties on August 18, 1997 had not been handled by Fogel's employee in her previous case manager status. The Court stated: "Obviously, if she had had access to any kind of settlement papers, that would be a matter for concern, but she has not".
At the end of those comments on January 28th, the Court specifically invited both trial counsel to provide the Court with any other or contrary information either of them had "... about (that case manager) having had any involvement with confidential information..." Fogel's response to the Court was to state, "No, your honor". He made no further comment. The Court recessed for the day and the trial continued on January 29th.
In fact, after being filed with the Court by State Farm on or about August 18, 1997, its confidential documents were handled and reviewed by Fogel's employee in her former capacity as case manager. This action occurred in August 1997 after she had accepted but before she commenced her employment position with Fogel.
Fogel had actually first become aware that his employee had handled the confidential court documents in the Dickstein matter in late October 1997. At that time, Fogel interviewed a witness in preparation for the trial. Upon returning to his office, Fogel told his employee certain information he had just learned about other witness interviews conducted by State Farm's counsel. Upon hearing from Fogel, his employee stated to him that she "knew that". She then confirmed that she had previously been aware of the facts Fogel had just mentioned to her from documents filed in Court. Fogel admitted believing that his employee's knowledge had, as its source, the confidential documents submitted by State Farm in camera in preparation for the previously held settlement conference. The conversation ended with Fogel failing to make further investigation as to the nature, extent, source, or method by which she had obtained her knowledge. Fogel remained silent about that October conversation, informing neither his then law partner, opposing counsel, nor the Court.
Fogel first informed the Court about the above-mentioned facts on the morning of January 30th, the third day of trial, Fogel had alerted the Court's secretary late in the afternoon of January 29th that he intended to "put something on the record" pertaining to the issue at the beginning of the Court session the following day. Both parties agree that he had earlier opportunity to do so at the time of Chief Judge Hornby's January 28th inquiry, any time after court on January 28th", or during the entire trial day on January 29th. Before any such disclosure was initiated by Fogel, he knew that the Court would have received independent information concerning the employee's earlier involvement with the confidential papers had he not so acted. The Court did receive that independent information late in the afternoon of January 29th.
Fogel's failure on January 28, 1998 to immediately correct Chief Judge Hornby's stated misunderstanding of the case manager's prior involvement with State Farm's confidential settlement documents was improper conduct. He should have so informed the Court and opposing counsel by an immediate and truthful response to the Court's specific inquiry of January 28, 1998, i.e. that his employee had earlier access to and actual knowledge of the confidential papers and, more importantly, that he had previously been made aware by her that she had seen and must have read at least part of them.
It was Fogel's obligation as an attorney and officer of the court to immediately inform Chief Judge Hornby, thus correcting the record, rather than to permit the Court to conduct the trial for an additional day while still misunderstanding the facts. In doing so, Fogel acted to the detriment of his obligations to the Court and the orderly administration of justice. As a very experienced and competent trial attorney, Fogel was fully aware of the importance and requirement of complete candor with the Court on such matters.
Conclusions
The parties agree and this Court so finds that Fogel's conduct violated Maine Bar Rules 3. 1(a)(conduct unworthy of an attorney), 3.2(f)(4)(conduct prejudicial to the administration of justice), 3.7(b) (improper concealment of information) and 3.7(e)(I)(i)(improper adversarial conduct).
Sanction
Having found these violations of the Maine Bar Rules to be serious, the Court must impose an appropriate sanction. In that regard, Fogel has admitted that 1) because of his actions, Chief Judge Hornby was left with a misunderstanding that the former case manager had not had access to or knowledge of that confidential information; and 2) he failed to take the necessary action to immediately correct the Court's and counsel's misunderstanding about what earlier access and knowledge his employee had concerning those documents.
Therefore, the Court hereby ORDERS the following sanction as proposed by the parties:
William A. Fogel is suspended from the practice of law in Maine for 90 days. Imposition of 45 days of that period is suspended, and the remaining 45 days is hereby imposed effective this date. During that period of actual suspension, Mr. Fogel may continue to perform totally uncompensated legal services for his one current client at the Immigrant Legal Advocacy Project in Portland. For all other client matters, Mr. Fogel shall comply with the notification and reporting requirements of M. Bar R. 7.3(i) on or before 30 days of this effective date of suspension.
For the Court
Hon. Robert W. Clifford Associate Justice Supreme Judicial Court
Board of Overseers of the Bar v. E. Christopher L'Hommedieu, Esq.
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Docket No.: BAR 01-03
Issued by: Single Justice
Date: October 23, 2001
Respondent: E. Christopher L'Hommedieu
Bar Number: 008229
Order: Suspension
Disposition/Conduct: Conduct Unworthy of an Attorney
ORDER
This matter came directly before the Court on October 23, 2001 pursuant to counsel's stipulated waiver of June 27, 2001 and the Court's Order of June 29, 2001. The Board of Overseers of the Bar (the Board) was represented by Bar Counsel J. Scott Davis. The affected client, Andrew Gaillard, was not present, and Bar Counsel earlier provided his attorney, Jon Holder, Esq., with a copy of the parties' proposed resolution of this grievance matter and notice of this hearing date. Defendant E. Christopher L'Hommedieu, Esq. was present with his attorney, Peter J. DeTroy, III, Esq.
STIPULATIONS
The parties have stipulated to the following material facts:
Mr. L'Hommedieu was admitted to practice in Maine in 1995 and has been practicing in Lewiston, Maine since 1997.
In the summer of 1999, Andrew Gaillard, whom Mr. L'Hommedieu had earl represented on other matters, informed Mr. L'Hommedieu that he was pursuing a claim for Social Security disability benefits.
On or about October 15, 1999 Mr. Gaillard's claim for Social Security disability benefits was denied, whereupon Mr. L'Hommedieu agreed to assist him in the appeal of that decision.
In fact, however, Mr. L'Hommedieu did not timely file the required Petition for Reconsideration or take any other steps to pursue Mr. Gaillard's Social Security appeal.
Throughout 2000, Mr. Gaillard made a number of status inquiry telephone calls to which Mr. L'Hommedieu wrongly assured him that he had done all that could be done and that the responsibility for the delay was with the Social Security Administration.
In fact, at least by November 7, 2000, Mr. L'Hommedieu knew that the fault of the delay was his rather than the Social Security Administration, but he continued to mislead Mr. Gaillard. In November of 2000, Mr. L'Hommedieu personally visited the Social Security Administration Office in Lewiston and confirmed there was no Petition for Reconsideration in Mr. Gaillard's file. He never so advised Mr. Gaillard of that finding.
In January of 2001, Mr. L'Hommedieu went to the Social Security Administration Office and filed Mr. Gaillard's Petition for Reconsideration with required attachments. Mr. Gaillard's signatures contained on the Petition and other filed documents had been falsified and backdated by Mr. L'Hommedieu, by his photocopying of Mr. Gaillard's signatures from other documents onto those filed documents. By so doing, Mr. L'Hommedieu made each document falsely appear to contain the proper signature of Mr. Gaillard.
Shortly thereafter Mr. L'Hommedieu called Mr. Gaillard and informed him that he had made "a mistake?, and referenced his failure to monitor the lack of responsiveness from the Social Security Administration. But Mr. L'Hommedieu failed to then advise Mr. Gaillard that the Petition for Reconsideration had never in fact been timely filed by him, and that the Petition he subsequently filed had been falsified by him.
In late January 2001, Mr. Gaillard fired Mr. L'Hommedieu for reasons related to that delay, and then retained a new attorney to handle his Social Security matter. It was through the efforts of his new attorney that Mr. Gaillard first learned that Mr. L'Hommedieu had misrepresented to him the actual reasons for the delay ? Mr. L'Hommedieu's own neglect - and that the signatures on the documents had been falsified by Mr. L'Hommedieu.
In February 2001, Mr. L'Hommedieu's own attorney reviewed the matter and shortly thereafter self-reported Mr. L'Hommedieu's misconduct to Bar Counsel.
CONCLUSIONS OF LAW
The parties have stipulated and the Court finds that Mr. L'Hommedieu's misconduct was intentional and violated Maine Bar Rules 3.1 (a) (conduct unworthy of an attorney); 3.2(f) (3) (4) (conduct involving dishonesty, fraud, deceit, or misrepresentation; conduct that is prejudicial to the administration of justice); 3.6 (a) (3) (a lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services. A lawyer shall be punctual in all professional commitments. A lawyer shall take reasonable measures to keep the client informed on the status of the client's affairs. A lawyer shall not neglect a legal matter entrusted to the lawyer); and 3. 7 (e) (1) (i) (conduct which seeks to mislead a tribunal).
These violations of the Bar Rules, particularly those involving dishonesty, fraud, deceit and misrepresentation are very serious.
A lawyer's participation in the presentation or in this case, the actual creation of a knowingly false document is the clearest kind of ethical breach. Continuously since long before Maine became a separate state, new lawyers upon admission to the bar have taken the following solemn oath:
You solemnly swear that you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented; you will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same; that you will delay no man for lucre or malice, but will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well as to the courts, as to your clients. So help you God.
4 M.R.S.A. ?806 (1979). As stated above, Maine's Code of Professional Responsibility mandates that a ?lawyer shall not ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation," M. Bar R. 3.2(f) (3).
It is clear that Mr. L'Hommedieu now recognizes that the artful, falsified copying of his client's ?signatures" onto the belatedly filed documents was completely inappropriate and violative of the Code of Professional Responsibility. Since the incident he has received counseling. ?The purpose of [a bar disciplinary] proceeding is not punishment, but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable to discharge properly their professional duties." M. Bar R. 2(a) (Purpose of Rules).
SANCTION
The Court has considered the purpose of this bar disciplinary proceeding in imposing the sanction in this case. Having found these violations of the Maine Bar Rules, and agreeing with the parties that they are serious, the Court must now consider an appropriate sanction. It is well established that the main purpose of attorney discipline is not punishment, but protection of the public. In addition, in imposing discipline, the Court should not only examine the facts of the case at bar, but also the prior record and experience of the attorney involved. Although Mr. L'Hommedieu has practiced law in Maine for only six (6) years, he has never been found to have violated any Bar Rules. Mr. L'Hommedieu stipulated to the facts without a hearing and acknowledges the seriousness of his failure to comply with the Code. He has apologized to the Court and affirmed that he will make every effort to ensure that no future violations occur. As ordered below, such efforts will occur under the guidance of a court-appointed Monitor.
Accordingly, the Court HEREBY ORDERS that E. Christopher L'Hommedieu be and hereby is suspended from the practice of law in Maine for a period of one (1) year commencing November 1, 2001, with all but sixty (60) days that suspension itself being suspended for one year subject to the following terms and conditions:
For the Court
Robert W. Clifford Associate Justice
Board of Overseers of the Bar v. Paul A. Weeks, Esq.
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Docket No.: GCF 10-224
Issued by: Grievance Commission
Date: April 25, 2011
Respondent: Paul A. Weeks, Esq.
Bar Number: 002216
Order: Reprimand/Monitoring Order
Disposition/Conduct: Standards of Care and Judgment
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMMISSION M. Bar R. 7.1(e)(2)(4)
On April 25, 2011, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Paul A. Weeks, Esq. This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on October 27, 2010.
At the hearing, Attorney Weeks was represented by Attorney Peter J. DeTroy and the Board was represented by Assistant Bar Counsel Jacqueline L. L. Gomes. The Complainant, Sally Guaraldo of Brewer, Maine was provided with a copy of this report (in proposal form) and objected to the proposed Reprimand. Ms. Guaraldo was present at the hearing and addressed the Panel concerning the proposed discipline. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Paul A. Weeks, Esq. of Bangor, County of Penobscot, State of Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Weeks was admitted to the Maine Bar on October 1, 1980, and he is currently registered as an active Maine attorney.
In February 2008, a pretrial scheduling order was entered in a case Attorney Weeks filed on behalf of Ms. Guaraldo. Attorney Weeks subsequently missed deadlines contained in a pretrial order to designate expert witnesses and to schedule Alternative Dispute Resolution. Opposing counsel filed a Motion to Dismiss on July 23, 2008. Attorney Weeks did not respond to that Motion. On August 25, 2008, opposing counsel sent a letter to the court clerk asking that the motion be brought to the attention of the court. On September 5, 2008, Ms. Guaraldo?s complaint was dismissed with prejudice due to Attorney Weeks? failure to comply with the relevant deadlines in the pretrial order. As a result, Ms. Guaraldo lost the ability to pursue her claim that she had waterfront access to Phillips Lake in Dedham, Maine which adjoined her property.
Attorney Weeks did assist Ms. Guaraldo in obtaining successor counsel and cooperated in that successor counsel?s ultimately unsuccessful attempt to convince the court to set aside the default.
During the same time period Attorney Weeks was representing Ms. Guaraldo, he also neglected his clients in another matter. Attorney Weeks was previously sanctioned for that misconduct with a Public Reprimand and agreed to accept a one-year term of monitoring (GCF# 09-073).
The then effective Code of Professional Responsibility specifically required attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Weeks? above-outlined failures, Ms. Guaraldo lost all waterfront access rights to her camp. The panel notes that Attorney Weeks has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Weeks expressed his remorse for his serious violations of the Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Weeks agrees that he did in fact violate the Code of Professional Responsibility, the Panel finds that a public reprimand and an additional period of Monitoring for one year under the same terms as the previous Monitoring Agreement serves those purposes. A signed Monitoring Agreement was filed with the Clerk of the Grievance Commission on February 28, 2011. The Panel notes that the Monitoring Agreement was in force as of March 1, 2011.
Therefore, the Panel accepts the agreement of the parties, including Attorney Weeks? separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Paul A. Weeks, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C)(4). Additionally, Attorney Weeks shall submit his practice of law to the monitoring of Stephen C. Packard, Esq. of Newport, Maine for a period of one year commencing on March 1, 2011.
For the Grievance Commission
Benjamin P. Townsend, Esq. Chair
Mary A. Denison, Esq.
Kathleen A. Schulz
Board of Overseers of the Bar v. Robert J. Rubin
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Docket No.: GCF 10-084
Issued by: Grievance Commission
Date: May 9, 2011
Respondent: Robert J. Rubin, Esq.
Bar Number: 008448
Order: Dismissal with Warning
Disposition/Conduct: Improper Communication with an Adverse Party; Conduct Prejudicial to the Administration of Justice; Conduct Unworthy of an Attorney
REPORT OF FINDINGS OF PANEL D OF THE GRIEVANCE COMMISSION
On April 25, 2011, pursuant to due notice, Panel D of the Grievance Commission conducted a disciplinary hearing, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, Robert J. Rubin, Esq. At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes, and Respondent was present and represented by Peter J. DeTroy III, Esq.
At the hearing, the Panel heard testimony from the following witnesses:
Robert J. Rubin, Esq. Robert J. Levine, Esq. Don Y. Mandell Carmen G. Barreto
The Board?s exhibits 1-19, and Respondent?s exhibits 1-11, were admitted without objection.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules. Respondent represented Ms. Barreto in connection with her divorce from Mr. Mandell, and various post-divorce matters. Mr. Mandell was represented by Attorney Levine in those matters.
In the divorce judgment, dated October 10, 2007, Mr. Mandell was awarded the parties? embroidery business, in connection with which Ms. Barreto was ordered to provide him with a computer key. After an unexplained delay of several months, Mr. Mandell filed a motion for relief from judgment, alleging that the computer key was damaged and inoperable. A hearing on the computer key issue was scheduled for August 12, 2008.
On August 5, 2008, Ms. Barreto and Mr. Mandell met, and she gave him a hand-written proposal that she would get the computer running, in return for which he would pay her $1,000 and release all further claims arising out of the divorce. Mr. Mandell forwarded that proposal to Attorney Levine, who contacted Respondent. Attorney Levine proposed that Mr. Mandell pay $750 in escrow, to be held by Attorney Levine until Mr. Mandell confirmed that the computer system was working properly. He did not address the requested release in his written communication with Respondent, but he testified that he clearly informed Respondent in a telephone conversation that Mr. Mandell would not execute a release. Respondent replied that a payment of $750 would be acceptable if it were made directly to Ms. Barreto, rather than in escrow, but that a general release of claims would be required. Respondent and Attorney Levine did not resolve the discrepancies between their positions, including the matter of the proposed general release, but Attorney Levine agreed that Mr. Mandell would meet in person with Ms. Barreto in an effort to resolve their dispute prior to the scheduled hearing.
Over the intervening weekend, Ms. Barreto reiterated to Respondent that she would require a general release, and requested that Respondent draft such a release and forward it to her. Respondent did so early on Monday morning, August 11. Respondent did not forward a copy of the draft release to Attorney Levine; he testified that he was preoccupied by the press of other business, and did not make any considered decision as to sharing the draft release with opposing counsel ? in fact, that it never crossed his mind.
Later that morning, Ms. Barreto met with Mr. Mandell at the community room of St. John the Baptist Episcopal Church in Thomaston, Maine, with their pastor present. She recorded their discussion, and a transcript of that recording was admitted in evidence. Ms. Barreto demonstrated to Mr. Mandell how to operate the computer key. She then stated to Mr. Mandell:
[Ms. Barreto]: I do need you to do one thing. I have a release form here that the lawyer put together. [Mr. Mandell]: Oh, alright.
The transcript then shows a pause while Mr. Mandell read the release, and then the parties? discussion resumes as follows:
[Mr. Mandell]: Yeah alright. [Ms. Barreto]: And now, that will be it then. We are done. We are completely finished with this case and there won?t be any need for any further discussions or motions or anything like that! Correct? [Mr. Mandell]: That?s correct.
Mr. Mandell then signed the release in duplicate, retaining one counterpart original. He testified at the hearing that he understood that the release dealt only with the computer key, and not with any other matters arising out of the divorce.
Mr. Mandell contacted Attorney Levine and notified him that the pending dispute regarding the computer key was resolved. He did not tell Attorney Levine he had signed the release, and did not give him a copy. On the basis of the information provided to him by his client, however, Attorney Levine filed a withdrawal of the pending motion.
Several months later, on behalf of Mr. Mandell, Attorney Levine filed a motion to compel an accounting with respect to the financial settlement between the parties. In opposition to that motion, Respondent raised the general release signed by Mr. Mandell. The District Court set aside the release on the basis of ?defense overreaching,? stating:
The defense, knowing that plaintiff?s lawyer had not agreed to a release, should not have caused the plaintiff to be in a position of deciding whether to sign a release to solve the problem that was the subject of the pending motion.
The Law Court dismissed Ms. Barreto?s appeal of that order as interlocutory, and Mr. Mandell?s motion remains pending before the District Court. Mr. Mandell subsequently filed a grievance complaint asserting that he was the subject of an ?indirect contact? by Respondent while he was represented by counsel.
Because Respondent?s actions in this matter occurred prior to August 1, 2009, this matter is governed by the Maine Code of Professional Responsibility then in effect (the ?Code?). The abrogation of the Code and its replacement by the Maine Rules of Professional Conduct effective August 1, 2009, do not affect the responsibility of the Panel to review Respondent?s conduct under the provisions of the Code in effect at the time of the conduct in question. Board of Overseers of the Bar v. Dubois, No. BAR-09-7 (Dec. 28, 2009) (slip op. at 6, n. 2).
Respondent?s actions potentially implicated former Rule 3.6(f) (causing another to communicate with a represented party without consent of that party?s attorney), and/or former Rule 3.2(f)(4) (conduct prejudicial to administration of justice). Additionally, a finding of a violation of either of these provisions could also support a finding of a violation of former Rule 3.1(a) (conduct unworthy of an attorney).
Causing Another to Communicate with a Represented Party
Former Rule 3.6(f) provided, in pertinent part:
During the course of representation of a client, a lawyer shall not . . . cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the prior consent of the lawyer representing such other party . . ..
(Emphasis added.) The Board has cited numerous disciplinary cases, and one opinion of the Professional Ethics Commission, for the proposition that an attorney may not cause another to communicate with a represented party, but those authorities are inapposite here because it is undisputed that Attorney Levine expressly consented to the communication between Ms. Barreto and Mr. Mandell, notwithstanding his knowledge that the issue of the general release remained unresolved. Accordingly, the Panel concludes that Respondent did not violate former Rule 3.6(f).
Failure to Provide Opposing Counsel with a Copy of the Draft Release
The Board asserts that by failing to provide Attorney Levine with a copy of the draft release, which Respondent knew or should have known Ms. Barreto would present to Mr. Mandell, Respondent engaged in ?conduct that is prejudicial to the administration of justice? in violation of former Rule 3.2(f)(4). In support of that position, the Board cites two opinions of the Professional Ethics Commission of the Maine Board of Overseers of the Bar. While neither opinion appears directly controlling in this matter, those opinions do provide some guidance for the Panel.
Opinion No. 35, dated January 17, 1983, holds that where a judge in a litigated case requests the prevailing attorney to prepare a final decree or judgment, that attorney has an obligation to provide opposing counsel with a copy of the draft proposal. That opinion, however, was based solely on former Rule 3.7(h)(2), barring written communication with a judge or tribunal on the merits of a contested matter without furnishing a copy of the communication to opposing counsel, and is therefore not directly applicable to the situation before the Panel.
Opinion No. 93, dated February 15, 1989, holds that an attorney may communicate directly with a represented party where the communication is authorized by law, but adds:
A word of caution remains in order, however, in that the mere fact that the direct communication is authorized by statute in no way detracts from the fundamental application of Rule 3.6(j) insofar as the rule continues to require that any communication concerning the subject matter of the representation involve opposing counsel.
While no specific language that ?require[d] that any communication concerning the subject matter of the representation involve opposing counsel? appeared in former Rule 3.6(f) at the time of the communications at issue in this matter, the Panel concludes that even though the communication between Ms. Barreto and Mr. Mandell was authorized by Attorney Levine, Respondent knew that the release was intended to be given legal effect in the dispute between the parties, and he therefore should have provided a copy of the proposed release to Attorney Levine. His failure to do so constituted conduct prejudicial to the administration of justice in violation of former Rule 3.2(f)(4), as well as conduct unworthy of an attorney in violation of former Rule 3.1(a).
In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent?s actions in this matter violated duties owed to the legal system and to the profession.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
The Panel concludes that Respondent?s misconduct was negligent, but that he did not intentionally or knowingly violate the Bar Rules.
(iii) the amount of actual or potential injury caused by the attorney?s misconduct;
The dispute over the enforceability of the release, based on Respondent?s failure to share it with Attorney Levine at the time he prepared it, appears significantly to have prolonged the course of the litigation between Ms. Barreto and Mr. Mandell.
(iv) the existence of any aggravating or mitigating factors.
As an aggravating factor, the Panel notes that Respondent was well aware that Attorney Levine had objected strenuously to Ms. Barreto?s demand for a general release, and therefore under these circumstances, Respondent should have considered the risk that providing a draft release to his client might result in Mr. Mandell being put in the position of needing to make a legally significant decision without consulting Attorney Levine. As a mitigating factor, Respondent testified that his failure resulted simply from the press of other business, and was not a part of any conscious plan or subterfuge. Respondent has no record of prior discipline.
In view of the foregoing factors, and in accordance with M. Bar R. 7.1(e)(3)(C), the Panel concludes that an appropriate sanction in this matter would be a dismissal with a warning. Accordingly, the Panel hereby dismisses the complaint with the following warning to Respondent:
Even where opposing counsel has consented to communications between an attorney?s client and opposing counsel?s client, an attorney who prepares a document for his client, such as a release, that is intended to have legal effect in the matter, that he knows will be provided to the other party, and that the attorney knows has not been agreed to by opposing counsel, must share that proposed document with opposing counsel.
For the Grievance Commission
Benjamin Townsend, Esq., Chair
Mary A. Denison, Esq.
Kathleen Schulz
Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: 07-323
Issued by: Grievance Commission
Date: April 6, 2011
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Dismissal
Disposition/Conduct:
REPORT OF FINDINGS AND ORDER
OF PANEL D OF THE GRIEVANCE COMMISSION
On February 28, 2011, with due notice, Panel D of the Grievance Commission conducted a disciplinary hearing concerning alleged misconduct by the Respondent, Donald F. Brown, Esq. This disciplinary proceeding was commenced on August 20, 2009 by the Board of Overseers of the Bar's filing of a disciplinary petition. The February 28, 2011 hearing was open to the public pursuant to Maine Bar Rule 7.1 (e)(l).
At the hearing the Board of Overseers was represented by Assistant Bar Counsel Jacqueline Gomes and Mr. Brown was represented by Walter McKee, Esq. There was no objection to the members of Panel D by the parties, which for this hearing consisted of William Baghdoyan, Esq., Acting Chair, Tobi Schneider, Esq. and Kathleen A. Schultz.
By agreement of the parties, Board's Exhibits # 1-10, revised exhibit #11 and exhibits # 12-A, 12-B, and 12-C were admitted into evidence as well as Respondent's Exhibit #1, which consisted of the Board's original exhibit #11.
Sworn testimony was taken from the complainant, Jack D. Bullock, and from the Respondent, Donald F. Brown.
Respondent Donald F. Brown, Esq. of Brewer, Maine is and at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
Attorney Brown represented Sally Bullock, Mr. Bullock's ex-wife in a contested protection from abuse and divorce action against Mr. Bullock, and Mr. Bullock filed a complaint regarding that representation on October 4, 2007. The complaint alleged, in pertinent part, that Mr. Brown had received confidential attorney-client documents that concerned notes of meetings with his counsel, Charles Budd, Esq. and thoughts or ideas that might be pursued during protective order proceedings and the divorce proceedings, and that Attorney Brown knowingly utilized these confidential documents in Court during his representation of Mrs. Bullock. These documents consisted of photo-copies of some pages of a notebook that Mr. Bullock used to note his thoughts and impressions of events in his daily life, including the divorce and protective order court proceedings, as well as more mundane things such as his appointments and his grocery lists.
These copied pages of Mr. Bullock's notebook were provided to Attorney Brown by his client Sally Bullock at a protective order hearing in the Newport District Court in January 2007. Attorney Brown had not requested that his client provide these documents to him, nor did he have any warning that the documents would be provided. He was handed the documents in the courtroom, just prior to the hearing, by his client. The notebook, along with a computer (which is not in issue in this hearing) were taken from the marital home by Mrs. Bullock and pages of the notebook were copied by Mrs. Bullock. The notebook was returned to Mr. Bullock prior to the January 2007 hearing, as it was clear from his testimony that he had the notebook in his possession on the day of the protective order hearing.
Attorney Brown did utilize the notebook copies to ask Mr. Bullock at least one question at the protective order hearing, regarding whether Mr. Bullock had written a note in the notebook to "speak softly" and "not over-emphasize facts." Attorney Brown testified at the hearing that he had recently reviewed the tape recording of the court hearing in question and that he had asked Mr. Bullock at that hearing what these phrases meant, and that Mr. Bullock denied knowledge of them.
The panel finds that an examination of the copied notebook pages does not reveal them to be obvious lawyer-client documents or even notes of lawyer-client meetings between Mr. Bullock and his attorney, Mr. Budd. Instead, they appear at most to contain some of Mr. Bullock's impressions and notes to himself regarding his cases against his wife. There is no clear indication that these notes contain any confidences exchanged between the lawyer and the client or that Mr. Bullock ever communicated these notes and impressions to his attorney. The panel is convinced that on their face, the notebook copies are not so obviously attorney -client communications that Attorney Brown should have been on notice to immediately return them.
The finding that these notes were not actually attorney - client communications is supported by the fact that Attorney Budd never requested the return of these notes nor did he mention them at all to Mr. Brown during the pendency of the cases. There were apparently several conversations between Mr. Budd and Mr. Brown regarding a computer that Sally Bullock took from the marital home, but none regarding the notes.( Though the computer was part of Mr. Bullock's original complaint to the Board, the computer was not part of the allegations brought by the Board in its petition.)
The panel also finds that this case is distinguishable from the case of Corey v. Norman, Hanson and DeTroy, 1999 ME 196, because in that case there was no question that the documents were in fact confidential, although they were inadvertently delivered to the opposing party. Here, the documents were intentionally delivered to Mr. Brown by his client, but they were not obviously confidential, but were rather, on their face, the apparent personal notes of Mr. Bullock with no indication that they had been shared with or discussed with his attorney.
Because the panel finds the copies of the notebook pages delivered to Attorney Brown by Sally Bullock do not appear to be confidential, and thus Attorney Brown should not have presumed or surmised that they were privileged communications between Mr. Bullock and his attorney, the Panel concludes that Attorney Brown committed no violation of the Maine Bar Rules. Therefore the Panel dismisses the petition against him.
For the Grievance Commission
William E. Baghdoyan, Esq. Chair
Tobi L. Schneider, Esq.
Ms. Kathleen A. Schulz
Board of Overseers of the Bar v. Louise A. Klaila
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Docket No.: GCF 10-129
Issued by: Grievance Commission
Date: May 24, 2011
Respondent: Loiuse A. Klaila
Bar Number: 007264
Order: Reprimand
Disposition/Conduct: Registration, Annual Fees, Continuing Legal Education, Code of Professional Responsibility
REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On May 24, 2011, with due notice, Panel D of the Grievance Commission conducted a disciplinary hearing concerning misconduct by the Respondent, Louise A. Klaila. This disciplinary proceeding was commenced on November 9, 2010 through the Board of Overseers of the Bar?s filing of a Disciplinary Petition. The May 24, 2011 hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(2)(E).
Ms. Klaila failed to file an Answer to the Disciplinary Petition. Therefore, pursuant to Maine Bar Rule 7.1(e)(1), the misconduct alleged in the Petition, as set forth below, was taken as admitted by Ms . Klaila.
At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Ms. Klaila was not represented by counsel and, despite being properly notified of the hearing, did not appear to be heard on the question of sanctions.
Respondent Louise A. Klaila (Klaila) of New Orleans, Louisiana was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine. As such, Klaila, a 1990 admittee to the Maine Bar, has been subject to the Maine Bar Rules. She is currently a suspended Maine attorney (see below.)
On October 20, 2009 Klaila was administratively suspended by the Board due to her CLE deficiencies and her failure to register and pay the necessary fees as required by the Maine Bar Rules, all in violation of Maine Bar Rules 6(a)(1), 10(a) and 12 as well as Rule 3(a) of Maine?s Rules For Lawyers? Fund For Client Protection.
On March 9, 2010, Bar Counsel docketed a sua sponte grievance complaint against Klaila related to her failure to comply with the affidavit requirements of M. R. Prof. Conduct 8.4(a) and M. Bar R. 7.3(i)(2)(A)(B). On February 1, 2011, after several failed attempts at personal service, an Order for Alternate Service was issued. Klaila eventually accepted personal service on February 9, 2011.
As of the date of this hearing, Klaila remains administratively suspended and has never filed an answer to this grievance matter in violation of M. Bar R. 2(c) and M. R. Prof. Conduct 8.1(b). Further, she still has not filed any notification affidavit. Klaila?s conduct resulted in her violations of Maine Bar Rules 6(a)(1); 7.3(i)(2)(A)(B); 10(a); 12 and Maine Rules of Professional Conduct 8.1(b) and 8.4(a).
Due to Klaila?s above-outlined failures, the Maine Bar Rules and the Maine Rules of Professional Conduct were violated by her. As a consequence of her administrative suspension, she is no longer a licensed member of the Maine Bar.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Klaila violated her duties to the legal system by failing to complete the annual registration requirements in 2009 as well as failing to file the required notification affidavit once she was administratively suspended.
Klaila knowingly failed to complete the annual registration requirements in 2009. She was aware of the registration requirements having registered annually with the Board of Overseers of the Bar beginning in 1991, with one exception in Fiscal Year 2007. Having been suspended administratively on October 16, 2006 for failure to complete the annual registration requirements and been reinstated to the active practice of law on September 19, 2007, Klaila was aware of the need to file a notification affidavit and the procedure necessary to regain active status. Klaila ignored the registration requirements.
Klaila?s failure to complete the annual registration requirements caused injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. According to Maine Bar Rule 2 the rules are meant to provide appropriate standards for attorneys regarding their relationship with ?clients, the general public, other members of the legal profession, the courts and other agencies.? The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There are no mitigating circumstances. There are aggravating circumstances: Klaila failed to respond to the mailing containing her annual registration materials. She then failed to file an initial response to the Grievance Complaint. She failed to accept service of the Disciplinary Petition on multiple occasions, which then required Bar Counsel to file a motion requesting approval of an alternate method of service. After finally accepting personal service of the Disciplinary Petition, she failed to file an Answer causing her to be defaulted and deemed to have admitted to the above referenced misconduct.
The evidence supports a finding that Klaila did, in fact, knowingly violate a duty to the legal profession and that there were aggravating circumstances due to her failures to initially accept service of the Disciplinary Petition or subsequently file an Answer when she violated the Maine Bar Rules and the Maine Rules of Professional Conduct.
Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Louise A. Klaila which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C) and (4). Bar Counsel shall deliver that Reprimand to Ms. Klaila by U.S. Mail on this date.
For the Grievance Commission
Benjamin P. Townsend, Esq., Chair
William E. Baghdoyan, Esq.
Ms. Kathleen A. Schulz
Board of Overseers of the Bar v. Daniel C. Purdy, Esq.
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Docket No.: 10-157
Issued by: Grievance Commission
Date: May 24, 2011
Respondent: Daniel C. Purdy, Esq.
Bar Number: 006792
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Conduct Prejudicial to the Administration of Justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMMISSION M. Bar R. 7.1(e)(2)(4)
On May 24, 2011, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Daniel C. Purdy, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition which the Board of Overseers of the Bar amended on November 15, 2010.
At the hearing, Attorney Purdy was pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Prior to the disciplinary proceeding, the parties submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Michael Chasse, the Complainant in this matter, is incarcerated out of state and did not attend or participate in the hearing. Bar Counsel did, however, provide Chasse with a copy of the proposed order in advance of this hearing.
Having reviewed the agreed, proposed Report of Findings as presented by counsel, the Panel makes the following disposition:
On April 7, 2010, Michael L. Chasse filed a grievance complaint against Purdy. Chasse?s complaint detailed his concerns with Purdy?s handling of his Post-Conviction Review matter. Purdy answered the complaint, acknowledging his failure to complete work on Chasse?s case. Indeed, the Piscataquis County Superior Court docket record reflects missed deadlines by Purdy related to his required filings on Chasse?s time-served credit dispute. In total, Purdy?s actions constituted violations of Maine Rules of Professional Conduct 1.3 (Diligence), 1.4 (Communication) and 8.4(d) (Conduct prejudicial to the administration of justice). Eventually, Purdy completed the required filings to then negotiate a settlement of Chasse?s Post-Conviction Review matter.
In his response to the complaint, Purdy admitted his delayed actions and explained that his efforts were impacted by various medical problems which have posed significant challenges to his ability to work. While Mr. Purdy did not provide the explanation as an excuse for his misconduct, he did ask that the Board view his lapse within the context of his personal circumstances.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Purdy?s above-outlined failures, Mr. Chasse?s case was unnecessarily delayed and the Penobscot County?s District Attorney?s office and Bar Counsel were required to repeatedly pursue Attorney Purdy for information and cooperation. He has, however, readily accepted responsibility for his neglect of Chasse?s matter and his unresponsiveness to his colleague and to Bar Counsel. The Panel notes and Bar Counsel has confirmed that Attorney Purdy has no history of prior discipline.
At the disciplinary hearing, Attorney Purdy expressed remorse for his violations of the Maine Rules of Professional Conduct. Notably, M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to discharge properly their professional duties. Since the evidence supports a finding and Attorney Purdy agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves that purpose.
Therefore, the Panel accepts the agreement of the parties, including Attorney Purdy?s waiver of the right to file a Petition for Review under M. Bar R. 7.2(a), and concludes that the appropriate disposition of this case is a Public Reprimand to Daniel C. Purdy, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Benjamin P. Townsend, Esq.
William E. Baghdoyan, Esq.
Kathleen A. Schulz
Board of Overseers of the Bar v. Robert M.A. Nadeau, Esq.
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Docket No.: 7-204
Issued by: Grievance Commission
Date: June 1, 2011
Respondent: Robert M.A. Nadeau, Esq.
Bar Number: 007460
Order: Dismissal with Warning
Disposition/Conduct: Responsibilities Regarding Non-lawyer Assistants
The Board of Bar Overseers presents a ninety-nine (99) numbered paragraph amended petition, dated November 10, 2010, detailing circumstances giving rise to Respondent attorney?s alleged violation of Maine Bar Rules 3.1(a); 3.2(f)(1)(3)(4); 3.6(a)(e)(1)(2)(iii)(iv) and 3.13(c). The undersigned members of Grievance Commission Panel B conducted a hearing regarding this matter on May 19, 2011. The Board was represented by Jacqueline Gomes, Esq. and Respondent was represented by Stephen B. Wade, Esq. of Skelton, Taintor & Abbott, Lewiston, Maine.
The amended petition in essence alleges errors and improprieties in attorney Nadeau?s handling and administration of his law firm?s client trust account, especially during 2007, when his practice and personal life were in considerable tumult. Nadeau was then a veteran attorney owning a diversified law practice with offices in three Maine towns, in which he employed 6 or 7 other lawyers and a staff of 7 or 8 non-lawyers, including a bookkeeper, Deborah Hansen, responsible for the firm?s billings and financial records. Ms. Hansen was hired in 2003, had prior bookkeeping experience and her job performance until 2007 was unremarkable.
In addition to his private law practice, attorney Nadeau devoted 40% of his professional time to his elected position as judge of probate in York County, a position he held for 12 years.
The panel has reviewed voluminous submissions by both parties, and considered testimony by attorney Nadeau and by his mother, Nancy Auclair. Nadeau has at all times conceded errors that were made in administering this bank account. He acted rapidly and effectively after learning of each of these mistakes to correct the improper actions of Ms. Hansen and to insure that none of his clients experienced any loss or other harm. Other than Thomas Orser and his wife, the original complainant, no clients even became aware of errors involving the handling of client funds.
On or about June 22, 2007, Respondent learned that his firm?s bookkeeper, Ms. Hansen, was transferring funds from the firm?s IOLTA account to the firm?s operating account, before actual bills were prepared and sent to clients. (Board Exhibit 24) She did this based on rough estimates of fees due from clients with IOLTA balances. Respondent emailed Ms. Hansen that these actions were wholly improper and had to be corrected. He arranged for her to meet with a C.P.A. to improve her understanding of proper bookkeeping practices, but never thereafter investigated whether she was performing her work properly, instead assuming that her erroneous practices had been corrected.
At about the same time the IOLTA problems were uncovered, Nadeau?s former clients Thomas and Elaine Orser asked Nadeau's office to transfer funds from a recent real estate closing which Nadeau, with the Orsers? consent, had agreed to hold in escrow pending resolution of litigation. Ms. Hansen told the Orsers that no funds were available to them, because they had been transferred to the law firm as payment due for legal fees. These transactions were previously disclosed to the Orsers in billing statements. Respondent discovered that a former associate failed to instruct Ms. Hansen that the escrowed funds were not available to pay the firm?s fees. He immediately replaced those funds in the firm?s IOLTA account, but was unable to release them to the Orsers, as they had requested.
Delays in the Orsers? recovery of their escrowed funds resulted from circumstances beyond Respondent?s control. First and foremost, the controlling escrow agreement precluded release of the funds until litigation was resolved, which did not occur until February, 2008. Within a day or two of that event, Nadeau and Associates filed for bankruptcy. The bank where the IOLTA account was maintained improperly seized the IOLTA account as security for its loan to the law firm. Nadeau vigorously contested this action, and was ultimately successful in regaining control of that account. While waiting for that litigation to conclude, Respondent voluntarily repaid Mr. Orser from his own funds, with interest. This exceeded what attorney Nadeau was required to do by law.
In late 2007 or early 2008 Respondent hired his mother, Nancy Auclair, to learn his new law firm?s billing system and scrutinize its bank accounts. Ms. Auclair was a C.P.A. with a master?s degree in finance. After studying the billing system for a week, she discovered a significant discrepancy between the year-end bank statement for the IOLTA account and the firm?s own record of IOLTA funds. She learned that Ms. Hansen had continued taking fees from the IOLTA account and depositing them in the firm?s operating account, based on estimates of what had been earned, rather than completed billing statements. Respondent promptly restored the overdrawn IOLTA funds from his own funds and loans he got from family members.
Ms. Auclair also discovered that Respondent?s firm?s IOLTA account was improperly used to pay credit card fees. Attorney Nadeau obtained sufficient funds to correct this discrepancy and protect his client deposits. He also terminated the employment of Ms. Hansen and hired a C.P.A. vetted by Ms. Auclair to maintain the firm?s future financial records.
The panel concludes that Respondent ultimately bears some responsibility for the mismanagement of his law firm?s IOLTA account. Even though the mistakes were made by his bookkeeper, attorney Nadeau owned the law firm and had the responsibility to protect his client?s assets by assuring that the various accounts were being managed according to accepted accounting practices. Although Nadeau apparently did not understand the TABS billing system, he should have monitored the IOLTA account deposits regularly and more carefully. This could have been accomplished, for example, by regular reconciliation of the account transactions and balances with statements provided by his bank. Therefore, the panel finds there is probable cause that attorney Nadeau?s supervision of his firm?s IOLTA account and of his firm?s bookkeeper violated Maine Bar Rule 3.13(c)(1).
There is no evidence, and the Board does not argue, that attorney Nadeau was personally aware of or sanctioned any of the errors involving the firm?s IOLTA account. He responded immediately and effectively upon learning of each bookkeeping irregularity. There is no evidence of any harm suffered by any client of the firm, and no harm was otherwise experienced by the public, the profession or the judicial system by the Respondent?s conduct. There is also no likelihood that these mistakes will reoccur, as Respondent has adopted improved bookkeeping and accounting practices. For these reasons, we conclude that the petition shall be dismissed with a warning. Maine Bar Rule 7.1(d)(4)(A).
For the Grievance Commission
Maurice Libner, Esq. (Chair)
Anne Courtney, Esq.
Susannah White
Board of Overseers of the Bar v. William L. Dawson, Jr., Esq.
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Docket No.: GCF Nos. 10-328; 10-423 and 11-057
Issued by: Grievance Commission
Date: June 27, 2011
Respondent: William L. Dawson, Jr., Esq.
Bar Number: 006887
Order: Reprimand
Disposition/Conduct: Competence, Communication, Diligence, Engage in Conduct that is Prejudicial to the Administration of Justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On June 27, 2011, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, William L. Dawson Jr., Esq. Pursuant to M. Bar R. 7(b)(6) the parties consented to this proceeding being conducted by one attorney member and one lay member of Panel D. This disciplinary proceeding had been commenced by the filing of Disciplinary Petitions by the Board of Overseers of the Bar (the Board) on March 25, 2011 and May 27, 2011, respectively. Those matters were then consolidated for hearing by agreement of the parties.
At the hearing, Attorney Dawson appeared pro se and the Board was represented by Bar Counsel J. Scott Davis. The Complainants, Heidi L. Stanley of Swanville, Maine; Pamela S. Rondina of Norton, Massachusetts and John H. Schleicher of Lakewood Ranch, Florida were each provided with a copy of this report (in proposal form). Ms. Stanley was not in attendance, but did indicate to the Board her agreement with the proposed report and disposition(s). Ms. Rondina had intended to attend the hearing, but a family emergency required her to be in California at the time of the hearing. As a result, by agreement of the parties, the Panel was provided with and admitted as an exhibit Ms. Rondina?s email of June 23, 2011 containing the comments she had intended to make at the hearing. In that email, Ms. Rondina stated her support for the findings and action proposed by Bar Counsel and Respondent Dawson. Mr. Schleicher was present and made comment to the Panel regarding Attorney Dawson?s conduct and the proposed report. Prior to the disciplinary proceeding, the parties had submitted that stipulated, proposed sanction report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, Ms. Rondina?s email exhibit and after receiving sworn testimony from Mr. Schleicher and Attorney Dawson, the Panel makes the following disposition:
Respondent William L. Dawson, Jr. (Dawson) of Belfast, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Dawson was admitted to the Maine Bar in 1989 and he is currently registered as an active Maine attorney. He is a sole practitioner.
Heidi L. Stanley (Stanley) filed a complaint dated September 15, 2010 against Attorney Dawson. Stanley had hired Dawson on or about April 27, 2010 to probate the estate of her deceased domestic partner, Travis Seekin. On or about June 25, 2010 Dawson filed an Application for Informal Appointment of Personal Representative (PR) with the Waldo County Probate Court requesting that Travis?s brother, Earl Seekin, be appointed as the Personal Representative (PR). That appointment was formally declined on July 6, 2010 by the Register of Probate. Dawson did inform Stanley that the Informal Appointment had been rejected, but failed to also explain to her the reason for that rejection or how he planned to now proceed on her behalf. After repeated attempts to contact Dawson for status information during the months of August and September 2010, Stanley contacted the Waldo County Probate Court. On September 14, 2010 she discovered that Dawson had not filed anything to secure the appointment of a PR after July 6, 2010.
Stanley secured new legal counsel to represent her concerning Travis Seekins? estate and filed a grievance complaint. Bar Counsel sent a docketing letter dated September 22, 2010 to Dawson requesting his written response by October 13, 2010. Dawson failed to so respond. Despite multiple letters and phone calls to Dawson?s law office, he still failed to communicate with Bar Counsel regarding this complaint until he was served with the disciplinary Petition. Dawson filed an Answer to the disciplinary Petition acknowledging that he did not act diligently or communicate effectively with Ms. Stanley. Dawson?s conduct in the Stanley matter violated Maine Rules of Professional Conduct 1.1; 1.3; 1.4; 8.1(b); and 8.4(d).
On December 27, 2010 Pamela Rondina (Rondina) of Norton, Massachusetts filed a grievance complaint against Dawson. Dawson was the named Personal Representative (PR) of the Estate of William Keswick who died in July 2005. On December 3, 2007 the Waldo County Superior Court issued its Consent Judgment and Order approving the parties? agreement thereto dated November 26, 2007 and confirming the ownership of two KeyBank IRA accounts that had been among Keswick?s assets. The IRA funds of $25,000.00 were determined to belong to the Keswick Estate and were released to Dawson legally as PR of that estate. Thereafter, Dawson was required to deposit those funds in a new account set up for Rondina, who was Keswick?s niece and sole beneficiary. Despite his detailed letter of May 28, 2008 to Rondina describing and promising the legal action he would undertake to maintain the proper segregation of those IRA?s for the Keswick estate, Dawson failed to follow up and set up the account(s) and/or properly disburse those funds to Rondina. Dawson continuously failed to return Rondina?s requests for status information, and nearly one year ago (on July 26, 2010) had promised her that he would ?take care of it right away.? Despite that promise, he has yet to properly finalize this estate and the funds remain in the custody of KeyBank.
In this matter, Bar Counsel?s docketing letter of December 29, 2010 requested Dawson?s written response by January 19, 2011. Again, Dawson did not respond to Bar Counsel until he was served with a disciplinary Petition. Dawson filed an Answer to the disciplinary Petition acknowledging that he did not expeditiously transfer the funds to Rondina, claiming that failure was due in part to the bank?s refusal to conduct a custodial transfer. Rondina has still not received those funds, now totaling at least $25,000.00. Dawson also agreed and admitted that he did not communicate effectively with Rondina. Dawson?s conduct in the Rondina matter violated Maine Bar Rules 3.1(a); 3.2(f)(3)(4); 3.6(a)(2)(3) and Maine Rules of Professional Conduct 1.1; 1.3; 1.4; 1.15(iii)(iv;); 1.16(b)(1); 2.1; 8.1(b); 8.4(a)(d).
On February 14, 2011 John H. Schleicher (Schleicher) of Lakewood Ranch, Florida filed a complaint against Dawson. Dawson represented Schleicher?s mother, Eunice, in a personal injury claim which was settled July 14, 2008. Funds from the settlement were held by Dawson to pay a subrogation lien. That lien was still outstanding when Eunice Schleicher passed away on September 30, 2008. Schleicher was appointed PR of his mother?s Estate and directed Dawson to pay the lien and disburse any remaining funds. Due to Dawson?s failure to pay the lien holder, Schleicher was served with a third-party complaint on August 10, 2010. Schleicher?s counsel made multiple demands for Dawson to pay the lien holder prior to scheduling Dawson to be deposed. On the eve of the deposition, Dawson agreed to make the necessary payments. As a result, the lien holder was paid $3,333.33, but Dawson only very recently provided his IOLTA check for the outstanding $1,666.67 to Schleicher?s private attorney. Schleicher also incurred significant personal legal fees caused by Dawson?s misconduct and failure to timely pay that amount due to Schleicher. On June 23, 2011 Dawson remitted one-half of those owed attorney fees - $1,060.03 ? to Schleicher?s attorney.
Although Bar Counsel?s docketing letter of February 23, 2011 requested his written response to this grievance complaint by March 15, 2011, Dawson again failed to so respond to Bar Counsel concerning this grievance matter. Dawson?s conduct in the Schleicher matter violated Maine Bar Rules 3.1(a); 3.2(f)(4); 3.6(a)(2)(3) and Maine Rules of Professional Conduct 1.1; 1.3; 1.4; 1.5; 1.15(d)(f); 3.2; 8.1(b) and 8.4(c)(d).
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Dawson?s above-outlined failures in communicating with his three (3) clients, neglecting their cases, failing to remit and pay their respectively owed money amounts and failing to respond to Bar Counsel?s requests for information on all three cases, he did not uphold those responsibilities. The evidence supports a finding and Attorney Dawson agrees that he did in fact violate the provisions of the then effective Code of Professional Responsibility and the Maine Rules of Professional Conduct as cited above.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Among the factors to be considered in imposing disciplinary sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. In each of the above cases, Attorney Dawson breached duties to his clients by not acting with reasonable diligence and not communicating with them about their respective matters. Dawson also violated his duties owed to the profession of law by failing to answer Bar Counsel?s inquiries.
As an attorney who has practiced law in Maine for over twenty years, Dawson knowingly failed to act on behalf of each of the aggrieved clients. His failure to respond to Bar Counsel was likewise knowing and unacceptable conduct.
Dawson?s conduct caused little or no actual injury to Ms. Stanley because she was able to proceed with successor counsel in a few short months. Dawson?s conduct did cause injury to Ms. Rondina because she was deprived of access to funds that were undisputedly hers for a period in excess of three years. Mr. Schleicher was financially harmed by Dawson?s conduct in that he was forced to hire another attorney to defend himself against a lawsuit filed to disgorge the funds Dawson failed to disburse from his IOLTA account, and money due to Mr. Schleicher?s mothers? Estate was withheld for over two years. Dawson?s conduct caused injury to the profession as Bar Counsel and the respective review panels of the Grievance Commission were unable to evaluate the extent of Dawson?s misconduct in each instance due to his failure to submit any responses prior to the preliminary reviews by Grievance Commission panels in each instance.
Dawson?s pattern of misconduct by neglecting his duties in all three cases constitutes an aggravating circumstance. There are several mitigating factors. Dawson has practiced law in Maine for over 20 years with no prior disciplinary sanctions. Dawson faced family challenges which resulted in his wife and him seeking and receiving guardianship of two young grandchildren in 2007. That guardianship was later challenged which then involved emotional and prolonged litigation. Both Dawson and his wife experienced stress?related illnesses attributable to the intense litigation. The panel notes that Attorney Dawson has taken some responsibility for his transgressions, but still has outstanding money obligations in the Rondina and Schleicher matters. At the disciplinary hearing, Attorney Dawson expressed his remorse for his serious violations of the then applicable Code of Professional Responsibility and now current Maine Rules of Professional Conduct.
As a result, the Panel understands and expects the following events will occur:
Dawson has indicated to the Panel his understanding that his failure to fully comply with any of the above listed four (4) requirements shall result in Bar Counsel?s docketing of a new grievance complaint(s) under M. Bar R. 7.1(b) based upon Dawson?s failure to fulfill the requirements of this order of the Panel.
Therefore, based upon all of the above findings and conditions, the Panel accepts the agreement of the parties, including Attorney Dawson?s separately executed waiver of the right to file a Petition for Review, and concludes as follows:
For the Grievance Commission
Benjamin P. Townsend, Esq. Chair
Joseph R. Reisert, Ph.D.
Board of Overseers of the Bar v. Richard F. van Antwerp
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Docket No.: BAR-11-06
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 26, 2011
Respondent: Richard F. van Antwerp
Bar Number: 003134
Order: Resignation
Disposition/Conduct: Resignation by Attorney Under Disciplinary Investigation
Order M. Bar R. 7.3(g
Attorney Richard F. van Antwerp was admitted to practice in Maine in 1985. This matter is before the Court to consider his voluntary resignation, dated May 10, 2011, that has been tendered by him pursuant to M. Bar R. 7.3(g). As submitted, Attorney van Antwerp's letter of resignation was supported by his Affidavit dated May 10, 2011. On May 18, 2011 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney van Antwerp's resignation from the Maine bar.
Therefore, after hearing on July 8, 2011, at which Attorney van Antwerp appeared and was represented by counsel, it is hereby ORDERED:
Pursuant to M. Bar R. 7.3(g)(3), Richard F. van Antwerp's resignation from the Maine bar is accepted. As a result, thirty (30) days from the date of this Order, his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Mr. van Antwerp shall comply with the notification reporting requirements of M. Bar R. 7 .3 (i)(1) before the effective date of his resignation.
As required by M. Bar R. 7.3(g)(3), Richard F. van Antwerp's supporting Affidavit dated May 10, 2011, is hereby impounded and shall not be available for inspecti.on unless otherwise ordered by the Court. Should Mr. van Antwerp seek reinstatement to the Maine bar, however, that Affidavit may then be made public without further order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Hon. Warren M. Silver, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. Mary K. Kahl, Esquire
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Docket No.: BAR-11-9
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 26, 2011
Respondent: Mary K. Kahl, Esq.
Bar Number: 003554
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Appointment Receiver M. Bar R 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Sarah A. McDaniel, Esq. is appointed the Receiver of Attorney Mary K. Kahl's law practice. With the cooperation of Personal Representative Ms. Perry, Attorney McDaniel shall:
Attorney McDaniel shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at the State court appointment rate. The assets of Attorney Kahl shall be the first choice for source of payment to the Receiver, although ultimately, she may serve in a pro bono capacity or be compensated from another source ordered by the Court.
Attorney McDaniel shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
Attorney McDaniel shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney McDaniel may be engaged by any former client of Attorney Kahl provided that she informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorney McDaniel is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney McDaniel's appointment by this Order.
Attorney McDaniel shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receivers shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
For the Court
Hon. Joseph M. Jabar, Associate Justice - Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re James S. Horton
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Docket No.: BAR-98-2
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 19, 1999
Respondent: James S. Horton
Bar Number: 001791
Order: Reinstatement Denied
Disposition/Conduct: N/A
Board of Overseers of the Bar v. Charles R. Bean, Esq.
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Docket No.: GCF 10-341; 11-171
Issued by: Grievance Commission
Date: July 25, 2011
Respondent: Charles R. Bean, Esq.
Bar Number: 002805
Order: Reprimand/Monitoring Order
Disposition/Conduct: Communication; Conduct Prejudicial to the Administration of Justice; Standards of Care and Judgment/Neglect; Diligence
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION
On July 25, 2011, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Charles R. Bean, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 5, 2011.
At the July 25, 2011 stipulated hearing, Attorney Bean appeared pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Additionally, complainants Robert Chiozzi and Margaret Fahey-Chiozzi were present for the proceeding. Complainant Stephen Hamilton also attended and all three complainants were provided with a copy of the parties? proposed Report of Findings and Order to review in advance of the hearing.
Prior to that hearing, counsel had submitted a stipulated, proposed Report of Findings for the Grievance Commission Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Charles R. Bean of South Portland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Bean was admitted to the Maine Bar in 1983 and he is currently registered as an active Maine attorney with a solo practice in South Portland, Maine.
In June 2004, Attorney Bean met with and was retained by Carl Lemke, an elderly resident of Cape Elizabeth, Maine. Following their first meeting, Attorney Bean drafted various estate planning documents. Those documents included a Will, Powers of Attorney (POA) and a Revocable Living Trust, all subsequently executed by Mr. Lemke. Mr. Lemke explained to Attorney Bean that he had no heirs and thus he intended to leave his estate to his friends/caretakers, Mr. and Mrs. Chiozzi. In his Will, Mr. Lemke named the Chiozzis as Trustees and Robert Chiozzi as his Durable POA for financial and health care decisions. Mr. Lemke?s Will also named Attorney Bean as his Personal Representative.
On March 30, 2008, Mr. Lemke passed away. His estate (totaling approximately $600,000) consists of real property which passed in trust to the Chiozzis and various bank accounts and three certificates of deposit accounts. On April 3, 2008 Attorney Bean applied for an Informal Probate of Mr. Lemke?s Will and for appointment as the Personal Representative (PR). Since becoming the PR, however, Attorney Bean has performed minimal work to distribute the remaining assets or otherwise finalize and close the estate. Although the Chiozzis forwarded bills/documents to Attorney Bean and repeatedly inquired about status and closure, he became unwilling to respond to their inquiries. His failure to do so constituted a violation of M. R. Prof. Conduct 1.4(4) [communication] and 8.4(d) [conduct prejudicial to the administration of justice]. Likewise, for various personal and professional reasons, Attorney Bean became unable to perform the necessary work to finalize the informal probate of Mr. Lemke?s estate. By way of his Answer to the Disciplinary Petition, Attorney Bean gave some explanation for his significant delays. He now agrees that his failures to respond and to perform his duties as Personal Representative constituted violations of M. Bar R. 3.6(a)(2)(3) (standards of care and judgment/neglect) and M. R. Prof. Conduct 1.3 (diligence) and 8.4(d) (conduct prejudicial to the administration of justice).
Moreover, when Bar Counsel?s office contacted Attorney Bean during its investigation and processing of this complaint matter, Bean failed to answer the complaint or to otherwise respond to Bar Counsel?s inquiries. Attorney Bean has expressed his regret at that lapse and acknowledges that his lack of response constituted a violation of M. R. Prof. Conduct 8.1(b) [Bar Admission and Disciplinary Matters]. As referenced above, Attorney Bean ultimately did file an Answer to the Disciplinary Petition and he has accepted responsibility for his failures to properly discharge his duties. He has committed to finalize and close the Lemke Estate by October 1, 2011. Given his remarks, the Panel expects that Attorney Bean will ensure that the Lemke Estate is concluded by that October 1 deadline.
Regarding the more recent complaint filed by Mr. Hamilton, it is clear that Mr. Hamilton began contacting Attorney Bean in 2008 to discuss a return of Hamilton?s unused fee. Until Mr. Hamilton engaged a new lawyer in 2010, he had received minimal response from Attorney Bean. At the hearing, Attorney Bean acknowledged his failure to address the fee questions, and Hamilton?s reimbursement request. Attorney Bean agrees that he failed to appropriately respond to his former client, in violation of M.R. Prof. Conduct 3.3 [fees] and 1.4 [communication].
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Bean?s actions, the finalization of Mr. Lemke?s informal probate has been significantly delayed. The beneficiaries of that estate, Mr. and Mrs. Chiozzi, have waited patiently to have the probate matter concluded. Likewise, Mr. Hamilton has tried to engage Attorney Bean in discussions intended to resolve their dispute about Mr. Hamilton?s requested refund. However, his requests for information and resolution were not timely addressed by Attorney Bean.
The Panel notes that Attorney Bean was publicly reprimanded in 2004 and again in 2006 for conduct in each separate instance similar to that described in the Chiozzi complaint. It appears that Attorney Bean has struggled somewhat to manage his practice and he has informed the Panel that he is preparing to wind down his office toward the goal of retirement.
At the hearing, Attorney Bean apologized for his actions and accepted responsibility for his violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct. In that regard, the Panel anticipates that Attorney Bean will improve his calendaring system, his communications/responsiveness and his management of his caseload, so as to avoid future complaints of neglect and avoidance. To further address the concerns about practice management, the parties have agreed that Attorney Bean will submit his practice to monitoring by Attorneys Mark V. Hewes and Peter M. McGee of Portland, ME. The parties have executed a monitoring agreement which the Panel has reviewed and accepted as part of the disposition in this proceeding.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence of misconduct supports a finding and Attorney Bean agrees he did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that its issuance of two public reprimands and a monitoring of Attorney Bean?s practice should serve to adequately protect the public.
Therefore, the Panel accepts the agreement of the parties including Attorney Bean?s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of two Public Reprimands to Charles R. Bean, Esq. which are now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(c)(4).
For the Grievance Commission
Martha C. Gaythwaite, Esq., Chair
Martica S. Douglas, Esq.
John R. Hutchins
Board of Overseers of the Bar v. Richard S. Emerson, Jr.
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Docket No.: GCF 98-168
Issued by: Grievance Commission
Date: August 20, 1999
Respondent: Richard S. Emerson, Jr.
Bar Number: 000934
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Andrews B. Campbell
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Docket No.: Bar 98-1
Issued by: Supreme Judicial Court
Date: October 19,1999
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E. Blackburn
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Docket No.: BAR 99-8
Issued by: Supreme Judicial Court
Date: September 28, 1999
Respondent: Thomas E. Blackburn
Bar Number: 001327
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR 99-1
Issued by: Supreme Judicial Court
Date: April 12, 1999
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Temporary Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Jeffrey J. Fairbanks
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Docket No.: Bar 99-3
Issued by: Supreme Judicial Court
Date: June 25, 1999
Respondent: Jeffrey J. Fairbanks
Bar Number: 008150
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Donna L Zeegers
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Docket No.: BAR 99-4
Issued by: Supreme Judicial Court
Date: December 3,1999
Respondent: Donna L Zeegers
Bar Number: 002327
Order: Receiver Appointment
Disposition/Conduct:
Board of Overseers of the Bar v. Christopher M. Uhl
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Docket No.: BAR 11-8
Issued by: Supreme Judicial Court
Date: August 9, 2011
Respondent: Christopher M. Uhl
Bar Number: 007897
Order: Temporary Suspension
Disposition/Conduct: Reciprocal Discipline
ORDER OF TEMPORARY SUSPENSION
Christopher M. Uhl was admitted to the practice of law in the Commonwealth of Massachusetts in 1993 and in the State of Maine on May 16, 1994. In May 2010, the Massachusetts Supreme Judicial Court temporarily suspended Uhl from the practice of law and, on July 28, 2010, Uhl was convicted in the United States District Court, District of Massachusetts, of six counts of tax evasion.1 Uhl is currently incarcerated.
After Uhl notified the Maine Board of Overseers of the Bar of his status in Massachusetts, Bar counsel petitioned this Court for the imposition of reciprocal discipline pursuant to Maine Bar Rule 7.3(h)(1). The Court issued an Order and Notice providing Uhl an opportunity to oppose Bar counsel's request for reciprocal discipline. Uhl failed to file any response. He has not asserted that the disciplinary action taken in Massachusetts was flawed due to notice, process, or proof; has not asserted that the imposition ofreciprocal discipline in Maine would result in grave injustice; and has not asserted that the misconduct giving rise to the suspension in Massachusetts does not justify the same discipline in Maine.
After review, the Court ORDERS:
For the Court
Ellen A. Gorman Associate Justice Maine Supreme Judicial Court
Footnotes
1 The Massachusetts SJC order does not recite the reason for the suspension. In its petition the Board of Overseers appears to link the two events, although the suspension preceded the convictions. Uhl's convictions could result in the imposition of a suspension pursuant to M. Bar R. 7.3(d), but Bar counsel's petition referred solely 10 Rule 7.3(h).
Board of Overseers of the Bar v. John E. Welch
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Docket No.: SJC-53.9
Issued by: Supreme Judicial Court
Date: August 20,1980
Respondent: John E. Welch
Bar Number: 001665
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas O. Bither
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Docket No.: SJC 53-3
Issued by: Supreme Judicial Court
Date: March 24,1980
Respondent: Thomas O. Bither
Bar Number: 001691
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. David L. Brooks
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Docket No.: File No. 95-K-39
Issued by: Grievance Commission
Date: April 10, 1996
Respondent: David L. Brooks
Bar Number: 001079
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Jonathan W. Dox
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Docket No.: Bar 95-10
Issued by: Supreme Judicial Court
Date: January 30, 1996
Respondent: Jonathan W. Dox
Bar Number: 007411
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. David W. Holler
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Docket No.: BAR 96-2
Issued by: Supreme Judicial Court
Date: June 6, 1996
Respondent: David W. Holler
Bar Number: 006775
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Francis M. Jackson
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Docket No.: File Nos. 94-K-114 and 94-K-189
Issued by: Grievance Commission
Date: April 8, 1996
Respondent: Francis M. Jackson
Bar Number: 000045
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Richard M. Maraghy
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Docket No.: File No. 92-S-236
Issued by: Grievance Commission
Date: March 19, 1996
Respondent: Richard M. Maraghy
Bar Number: 000217
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. John E. Nale
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Docket No.: GCF 96-S-14
Issued by: Grievance Commission
Date: September 4, 1996
Respondent: John E. Nale
Bar Number: 000211
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas F. Shehan
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Docket No.: BAR 95-8
Issued by: Supreme Judicial Court
Date: January 10, 1996
Respondent: Thomas F. Shehan
Bar Number: 003978
Order: Suspension Reciprocal Discipline
Disposition/Conduct:
Board of Overseers of the Bar v. Schuyler G. Steele
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Docket No.: BAR 96-14
Issued by: Supreme Judicial Court
Date: November 27, 1996
Respondent: Schuyler G. Steele
Bar Number: 002817
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Earle S. Tyler, Jr.
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Docket No.: BAR 93-14 and BAR 94-4
Issued by: Supreme Judicial Court
Date: March 13, 1996
Respondent: Earle S. Tyler, Jr.
Bar Number: 001745
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard D. Violette
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Docket No.: File Nos. 92-S-224 &93-G-106
Issued by: Grievance Commission
Date: January 8, 1996
Respondent: Richard D. Violette
Bar Number: 003042
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Schuyler G. Steele
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Docket No.: BAR 96-14
Issued by: Supreme Judicial Court
Date: October 22, 1996
Respondent: Schuyler G. Steele
Bar Number: 002817
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. David P. Pancoast
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Docket No.: BAR 95-11
Issued by: Supreme Judicial Court
Date: February 20, 1006
Respondent: David P. Pancoast
Bar Number: 003450
Order: Reciprocal Discipline
Disposition/Conduct:
Board of Overseers of the Bar v. David F. Gould
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Docket No.: BAR 95-3
Issued by: Supreme Judicial Court
Date: September 9, 1996
Respondent: David F. Gould
Bar Number: 001779
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: BAR 96-15
Issued by: Supreme Judicial Court
Date: January 31, 1997
Respondent: Thomas M. Mangan
Bar Number: 001743
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re David M. Cox
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Docket No.: JUD-93-1
Issued by: Grievance Commission
Date: April 23, 1997
Respondent: David M. Cox
Bar Number: 000697
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Richard K. Dubois
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Docket No.: BAR 96-12
Issued by: Supreme Judicial Court
Date: April 18, 1997
Respondent: Richard K. Dubois
Bar Number: 007032
Order: Suspended Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Stephen W. Devine
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Docket No.: Bar-92-14
Issued by: Supreme Judicial Court
Date: April 14, 1997
Respondent: Stephen W. Devine
Bar Number: 001824
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Albert P.C. Lefebvre
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Docket No.: BAR-96-8
Issued by: Supreme Judicial Court
Date: February 3, 1997
Respondent: Albert P.C. Lefebvre
Bar Number: 002800
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. James E. Millett
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Docket No.: BAR-96-10
Issued by: Supreme Judicial Court
Date: January 29, 1997
Respondent: James E. Millett
Bar Number: 000074
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Richard M. Reamer
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Docket No.: BAR-96-9
Issued by: Supreme Judiicial Court
Date: January 29, 1997
Respondent: Richard M. Reamer
Bar Number: 003744
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. John M. Whalen
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Docket No.: BAR-96-5
Issued by: Supreme Judicial Court
Date: February 10, 1997
Respondent: John M. Whalen
Bar Number: 000827
Order: Suspended Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. J. Michael Huston
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Docket No.: BAR-98-6
Issued by: Supreme Judicial Court
Date: December 23, 1998
Respondent: J. Michael Huston
Bar Number: 002154
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Francis M. Jackson
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Docket No.: Bar-97-14
Issued by: Supreme Judicial Court
Date: May 26, 1998
Respondent: Francis M. Jackson
Bar Number: 000045
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Laurie Anne Miller
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Docket No.: File No. 97-106
Issued by: Grievance Commission
Date: March 31, 1998
Respondent: Laurie Anne Miller
Bar Number: 003231
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Robert M. Napolitano
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Docket No.: File No. 95-G-117
Issued by: Grievance Commission
Date: February 2, 1998
Respondent: Robert M. Napolitano
Bar Number: 001021
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Charles B. Rodway
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Docket No.: Bar-97-16
Issued by: Supreme Judicial Court
Date: August 5, 1998
Respondent: Charles B. Rodway
Bar Number: 000757
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Peter M. Weatherbee
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Docket No.: File No. 98-4
Issued by: Grievance Commission
Date: November 6, 1998
Respondent: Peter M. Weatherbee
Bar Number: 000333
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Lowell D. Weeks
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Docket No.: Bar-97-12
Issued by: Supreme Judicial Court
Date: July 7, 1998
Respondent: Lowell D. Weeks
Bar Number: 001430
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Mary Notaris
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Docket No.: BAR-11-4
Issued by: Supreme Judicial Court
Date: August 16, 2011
Respondent: Mary Notaris
Bar Number: 007642
Order: Disbarment Reciprocal Discipline
Disposition/Conduct: Diligence; Communication; Making a False Statement in Connection with a Disciplinary Matter
ORDER
On May 10, 2011 the Board of Overseers of the Bar (Board) petitioned this Court for reciprocal discipline against Mary Notaris, a New Hampshire resident and suspended Maine attorney. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the November 10, 2010 Supreme Court of New Hampshire's Order disbarring Notaris in that state.
The Court notes that on June 23, 2011, Notaris was served with a copy of the Board's pleadings and this Court's May 16, 2011 Order and Notice. Thereafter, Notaris had 30 days in which to notify this Court of any claim by her that identical discipline in Maine would be unwarranted. While Notaris failed to file an answer to the Court's Order and Notice, she did ultimately engage in negotiations with Assistant Bar Counsel Aria Eee. The parties have subsequently reached agreement as to findings and disposition of this matter. Additionally, the parties have agreed to integrate Notaris' more recent disciplinary action with this Reciprocal Discipline matter. That action was initially processed as a Grievance Commission matter but Notaris has elected to waive the Grievance Commission forum and have the Court resolve all of her pending disciplinary matters.
In January 1992, Notaris was admitted to practice law in Maine. Shortly thereafter, she was admitted to practice in Massachusetts and New Hampshire. From 1994 until her November 2010 disbarment, Notaris maintained a law office in Salem, New Hampshire.
Notaris has acknowledged that her misconduct in New Hampshire constitutes similar misconduct in Maine and encompasses several violations of the Maine Rules of Professional Conduct. Specifically, those violations include Rules 1.3 (Diligence), 1.4 (Communication), 8.1(a) (Making a false statement of material fact in connection with a disciplinary matter), and 8.4(c) (Conduct involving dishonesty, deceit, and misrepresentation). Notaris also agrees that she violated Maine Bar Rule 7.3(i)(2) when she failed to file with the Court and the Board the required affidavit attesting to her compliance with the provisions of that Rule. On July 11, 2011, the Board received Notaris' affidavit indicating that she has no clients for whom she is providing legal representation.
In that regard, although Notaris is no longer licensed to practice law in any jurisdiction, she continues to work at Salem Legal Services as a Mediator and an Office Manager. The Court emphasizes that any work performed by Notaris must not be legal services, despite her training and prior bar licensures. Moreover, any advertizing for Salem Legal Services, LLC must reflect the fact that Notaris is no longer practicing law or providing legal advice to consumers and clients of Salem Legal Services, LLC.
Accordingly, upon consideration of the Board of Overseers of the Bar's Petition for Reciprocal Discipline and the parties' proposed agreement, it is hereby ORDERED as follows:
For the Court
Donald G. Alexander, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. David E. Hunt
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Docket No.: BAR-11-11
Issued by: Maine Supreme Judicial Court
Date: August 18, 2011
Respondent: David E. Hunt
Bar Number: 002522
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Motion for Appointment of Receiver M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Kurt Klebe, Esq. is appointed the Receiver of Attorney David E. Hunt's law practice. As soon as possible, Attorney Klebe shall:
Attorney Klebe shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at a designated rate. Attorney Hunt shall be the first choice for source of payment to Attorney Klebe, although ultimately, the Court may determine that Attorney Klebe serves in a pro bono capacity. Otherwise Attorney Klebe may be compensated from any other source ordered by the Court, including those matters in which Attorney Hunt's clients have outstanding obligations to him. Attorney Klebe has standing to pursue claims as Receiver for past due legal fees related to Attorney Hunt's practice.
Attorney Klebe shall act as Receiver until discharged by the Court in accordance with paragraph 3 of Rule: 7.3(f).
Attorney Klebe so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under this Rule. Furthermore, Attorney Klebe may be engaged by any former client of Attorney Hunt, provided that he informs any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend Attorney Klebe's employment by the client . Attorney Klebe is subject to all Bar Rules and the Maine Rules of Professional Conduct, including M.R. Prof. Conduct 1.7, 1.8 and 1.9 regarding conflicts of interest. However, the client's retention of Attorney Klebe as successor counsel is not a per se conflict of interest solely by reason of Attorney Klebe's appointment by this Order.
Attorney Klebe, his agents and employees shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, Attorney Klebe shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
For the Court
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert B. Pomeroy
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Docket No.: BAR-11-7
Issued by: Supreme Judicial Court
Date: August 19, 2011
Respondent: Robert B. Pomeroy
Bar Number: 007269
Order: Disbarment Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
ORDER
May 20, 2011, the Board of Overseers of the Bar petitioned this Court for an Order of Disbarment in the reciprocal discipline matter filed by the Board. Attached to the Board's Petition for Reciprocal Discipline was a certified copy of the March 25, 2011 Commonwealth of Massachusetts Supreme Judicial Court's Order of Indefinite Suspension of Mr. Pomeroy.
The Court notes that Mr. Pomeroy was served with a copy of the Board's pleadings and this Court's June 24, 2011 Order & Notice. Thereafter, Mr. Pomeroy had thirty days in which to notify this Court of any claim by him that disbarment in Maine would be unwarranted. Mr. Pomeroy has defaulted by failing to file any response to this Court's Order.
Upon consideration of the Board of Overseers of the Bar's Petition for Reciprocal Discipline; and after providing Mr. Pomeroy an opportunity to respond, it is hereby ORDERED as follows:
For the Court
Andrew M. Mead, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. James M. Cameron
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Docket No.: BAR-11-2
Issued by: Supreme Judicial Court
Date: August 29, 2011
Respondent: James M. Cameron
Bar Number: 006893
Order: Suspension
Disposition/Conduct: Conviction of Crimes
ORDER of SUSPENSION
By agreement of the parties, the August 30, 2011 hearing scheduled in the above pending matter is now ORDERED indefinitely continued, pending a decision from the First Circuit Court of Appeals regarding James M. Cameron's appeal of the March 10, 2011 convictions entered by the U.S. District Court, District of Maine, Case Number 1-09-CR-000024-001.
While the appeal is pending, Mr. Cameron's license to practice law shall remain administratively suspended, pursuant to an order issued by the Board of Overseers of the Bar on October 19, 2010. In addition, by agreement of the parties, Mr. Cameron's license to practice law is also suspended by this Court, pursuant to M. Bar R. 7.3(d)(1), because his federal convictions for multiple counts of child pornography crimes, which demonstrate his unfitness to practice, remain in place pending appeal.
For the Court
Ellen A. Gorman, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. Allan W. Hanson
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Docket No.: GCF 10-196 and 10-425
Issued by: Grievance Commission
Date: August 29, 2011
Respondent: Allan W. Hanson
Bar Number: 006814
Order: Reprimand
Disposition/Conduct: Conduct Unworthy of an Attorney, Neglect of a Client's Legal Matter, Diligence, Communication
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
On July 28, 2011, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by Respondent Allan W. Hanson, Esq. This disciplinary proceeding had been commenced by the filing of an Amended Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 7, 2011. Hanson filed his Answer to that Amended Petition on June 29, 2011.
At the July 28, 2011 hearing, Attorney Hanson appeared pro se and the Board was represented by Bar Counsel J. Scott Davis. The two complainants had each been earlier provided with a copy of the parties? proposed Report of Findings and Order to review in advance of the hearing. Complainant Brenda Wilcox attended the hearing and and presented sworn narrative comments to the Panel concerning the parties? proposed sanction concerning her matter. Complainant Richard Doucette was not in attendance at the hearing, but Bar Counsel orally described his critical and supportive comments in reaction to the proposed Report.
The Panel also received sworn comments from Attorney Hanson, including his responses to questions from the Panel and Bar Counsel.
In that regard, prior to the hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Upon its review of that document in conjunction with those comments and testimony received at that hearing, the Panel then confidentially deliberated as to whether to then accept and adopt that proposed Report or proceed otherwise in light of the law office practice management issues described by Ms. Wilcox and acknowledged by Attorney Hanson. As a result, the Panel continued its disposition of these two involved complaint matters and directed the parties to obtain an attorney Monitor and involve the Maine Assistance Program (MAP) to address the caseload and time management issues currently affecting Attorney Hanson?s law practice. The Panel?s proceeding was then continued until August 25, 2011 to then consider adoption of the parties? revised proposed disposition consistent with the Panel?s directive. As a result, having reviewed the revised agreed, proposed findings as presented by counsel consistent with the Panel?s directive at that initial proceeding on July 28, 2011, the Panel now makes the following disposition:
Respondent Allan W. Hanson, Esq. of Caribou, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Hanson was admitted to the Maine Bar in 1989 and he is currently registered as an active Maine attorney with a solo practice in Caribou.
On April 30, 2010, Richard Doucette filed a complaint against Attorney Hanson claiming that he had mishandled Doucette?s post judgment divorce matter in 2009. Part of Doucette?s upset involved Hanson?s mishandling of what action to take concerning a contempt judgment issued by the District Court against Doucette. Doucette claimed, and Hanson now agrees, that Hanson did not thoroughly and adequately respond to Doucette?s written directive to appeal that contempt judgment. Hanson also failed to properly handle Doucette?s needs regarding issues of alimony, medical bills and a Qualified Domestic Relations Order (QDRO). Doucette ultimately became so upset with Hanson?s misconduct that he elected to handle his remaining divorce matters by himself directly with opposing counsel, without legal assistance from Hanson. Hanson now agrees that his conduct was in violation of then applicable M. Bar R. 3.1(a) {conduct unworthy of an attorney}; 3.6(a)(2){handling a legal matter without preparation} and 3.6(a)(3){neglect of a client?s legal matter}.
On December 27, 2010, Brenda L. Wilcox filed a complaint alleging that Attorney Hanson neglected her breach of contract matter regarding her purchase of her modular home. That neglect was exemplified by the fact that although Hanson commenced representation of Wilcox in November 2008, he did not prepare her court complaint until June 2010 or actually file it until October 2010. By that time, his legal representation had been terminated by Wilcox due to his inaction and lack of response to her phone calls. In his responses to the Board, Hanson explained that Ms. Wilcox?s case had become more complicated than he initially anticipated, and that the filing of her lawsuit was impacted by his demanding court schedule. Hanson now acknowledges and agrees that his lack of communication and that delayed filing constituted his violations of then applicable M. Bar R. 3.6(a)(3) [standards of care and judgment/neglect of a client?s legal matter] as well as currently pertinent M. R. Prof. Conduct 1.3 [diligence] and 1.4 [communication]. At the hearing, Hanson expressed his remorse for the delay in filing Wilcox?s lawsuit, the resulting negative impact to her underlying legal action, and for acting in a manner which made her feel ignored and inconsequential.
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Hanson?s above-outlined failures, Mr. Doucette?s post divorce matter and Ms. Wilcox?s breach of contract case languished. The Panel notes that Attorney Hanson has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Hanson apologized to Doucette and Wilcox and accepted responsibility for his violations of the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Hanson?s prior sanction record includes two minor non-disciplinary informal warnings in 1998 and 2001, respectively, as well as a reprimand by consent in 2004. All three of those earlier complaints involved misconduct by Attorney Hanson similar to these matters, i.e. neglect of clients? matters.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence supports a finding and Attorney Hanson agrees that he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct, the Panel finds that a public reprimand in each instance serves those purposes.
Therefore, after receiving testimony from Ms. Wilcox and Attorney Hanson as well as Bar Counsel?s comments at that proceeding on July 28, 2011 and upon its review and acceptance of the parties? signed Confidential Monitoring Agreement, the Panel now accepts the revised proposed agreement of the parties, including Attorney Hanson?s separately executed waiver of the right to file any Petition for Review of either grievance matter. Thus, with the involvement of MAP and Monitor Michael E. Carpenter, Esq. now in place consistent with the terms contained in that referenced Confidential Monitoring Agreement the Panel now does conclude that the appropriate disposition of these cases is a Public Reprimand (in each case) of Allan W. Hanson, Esq. which are now each hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
James A. McKenna III, Esq., Acting Chair
M. Ray Bradford Jr., Esq.
Norman Ross
Board of Overseers of the Bar v. Ronald G. Caron
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Docket No.: BAR-00
Issued by: Supreme Judicial Court
Date: January 25, 2000
Respondent: Ronald G. Caron
Bar Number: 001371
Order: Suspension Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
Order
On October 27, 1999 Ronald G. Caron was convicted and sentenced by the U. S. District Court (Honlby, C.J.) for his violation of 18 U.S.C. Section 152 (Concealment of assets in a bankruptcy case). As a result, Bar Counsel initiated a disciplinary proceeding in that court pursuant to U.S. District Court Local Rule 83.3(a)(1)(4). On January 7, 2000 that court issued an agreed upon order suspending Mr. Caron from practice in that court for 15 months. In that order the court found that Mr. Caron's criminal conviction and his conduct related thereto constitute his violation of Maine Bar Rules 3.1(a), 3.2(f)(2),(3),(4), 3.6(e)(2)(iv) and 3.7(e)(l)(i).
Now therefore, it is ORDERED pursuant to M. Bar R. 7.3(h)(Reciprocal Discipline) that Ronald G. Caron be and hereby is now also suspended from practice in Maine for a period of fifteen (15) months, commencing retroactive to the date he voluntarily ceased the practice of law, June 30, 1999. Therefore, Mr. Caron may subsequently resume the practice of law in this Court only upon his initiation and full compliance with the requirements and procedures of Maine Bar Rule 7.3(j) (Reinstatement) after September 30, 2000.
Dated: January 25, 2000
For the Court
Howard H. Dana, Jr.
Associate Justice
Supreme Judicial Court
Board of Overseers of the Bar v. In Re Ronald G. Caron
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Docket No.: BAR-00-1
Issued by: Supreme Judicial Court
Date: November 2, 2000
Respondent: Ronald G. Caron
Bar Number: 001371
Order: Reinstatement
Disposition/Conduct: NA
ORDER OF REINSTATMENT
Petitioner, Ronald G. Caron, Sr., was suspended from the practice of law by this Court on January 25, 2000 pursuant to Maine Bar Rule 7.3 (h). Petitioner has requested reinstatement and has performed all requirements set forth in Maine Bar Rule 7.3(j), including meeting with the Board of Overseers of the Bar and Bar Counsel. Upon due consideration of Petitioner Ronald G. Caron, Sr.'s Petition for Reinstatement and the unanimous recommendation of the Board of Overseers of the Bar that Petitioner Ronald G. Caron, Sr. be so reinstated, the following is ORDERED:
Petitioner is hereby reinstated effective as of the date of this Order.
Dated: November 2, 2000
For the Court
Howard H. Dana, Jr.
Associate Justice
Supreme Judicial Court
Board of Overseers of the Bar v. Steven A. Juskewitch
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Docket No.: GCF 10-228
Issued by: Grievance Commission
Date: September 2, 2011
Respondent: Steven A. Juskewitch
Bar Number: 000272
Order: Dismissal with Warning
Disposition/Conduct: Competence, Diligence
REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
On August 24, 2011, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, Steven A. Juskewitch, Esq. At the disciplinary hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Respondent was present and represented by Malcolm L. Lyons, Esq.
At the hearing, the Panel heard testimony from the following witnesses:
Daniel Lunt Linda Lunt Richard C. Gardner Stephanie Fountaine Barbara Ward Rose Giosia, Esq. Steven A. Juskewitch, Esq.
The Board?s exhibits 1-19, and Respondent?s exhibits 1-3, were admitted without objection1. Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Bar Rules.
In July 2008, Daniel and Linda Lunt entered into a ?House Sale Agreement? for the sale of their home in Long Island Plantation, also known as the island of Frenchboro, to their son Zachary Lunt and his wife Laurette Lunt. For various personal and financial reasons, Daniel and Linda were under significant pressure to leave the island community.
The ?House Sale Agreement? agreement was prepared without assistance of legal counsel. Daniel and Linda testified that the agreement was notarized, and that the notary faxed it to Respondent?s office. Respondent denied ever having received it, and the copy submitted in evidence by the Board is neither signed nor notarized, although Daniel and Linda were in possession of a full copy of Respondent?s file. The ?House Sale Agreement? stated: ?The final closing for this house will take place only at Steve Juskewitch?s Law Office on July 24, 2008, at 11:00p.m. [sic].?
At or about the same time, Daniel and Linda engaged Respondent to help them sell their home. Linda forwarded copies of two source deeds to Respondent?s paralegal, Stephanie Fountaine, for her use in preparing a property description for the deed. Daniel and Linda did not engage Respondent to conduct a title search, nor to research the extent of the property interest governed by the description they provided. Both Respondent and Ms. Fountaine testified that it was Respondent?s practice never to hold real estate closings, but only to prepare deeds and transfer tax forms on request, and that Respondent would not have agreed to hold a closing if asked to do so; they both expected Daniel and Linda to come to Respondent?s office, execute the deed, and take the deed and real estate transfer tax form with them. However, Respondent did not document the scope of the engagement, nor confirm it in writing with Daniel and Linda.
The Frenchboro property owned by Daniel and Linda included not only their house and an adjacent lot on which their septic system was located, but also a half-interest in a wharf across the street. Daniel and Linda asserted that Respondent should have known, from other unspecified previous conversations, that they did not wish to include the wharf interest in the house sale. However, the wharf interest was included in the source deed that Daniel and Linda provided to Respondent and Ms. Fountaine; Daniel and Linda both testified at the hearing that they never specifically communicated to Respondent their intent not to include the wharf interest in the proposed conveyance to Zachary and Laurette; and on the evidence presented at the hearing, the Panel is unable to find that Respondent was ever clearly informed that the wharf interest was not to be included.
Respondent was in court on the morning of July 24, 2008, the day that Daniel and Linda were expected to review and sign the deed. Without any prior indication that he would attend, Daniel Lunt?s father, David Lunt, arrived at Respondent?s office that morning, followed by Zachary and Laurette. At some point, another Ellsworth attorney, Melissa Hale, Esq., also came to Respondent?s office to participate in the transaction; it appears she was representing David with respect to a mortgage to be granted to him to secure payment of a loan to Zachary and Laurette to finance their purchase of the property.
Daniel and Linda arrived shortly after David, but upon seeing that David was there, they left without getting out of their vehicle. Daniel and Linda were estranged from David, and at the time of this transaction, Respondent was also representing Linda in her separate personal injury claim against Sandra Lunt, David?s wife and Daniel?s mother.
Daniel and Linda then returned, but Linda ran their vehicle over a stone wall at the rear of Respondent?s parking lot, where it remained stuck until freed by a wrecker. Daniel and Linda refused to enter Respondent?s office due to David?s presence. Both Daniel and Linda testified that they were upset, distracted, and traumatized, both by David?s presence and by the difficulty of summoning a wrecker to free their vehicle. Daniel and Linda each agreed, and the evidence at the hearing appeared to confirm, that their memories of the events of the day may not be entirely complete.
In Respondent?s absence, Ms. Fountaine attempted to manage the situation. She came out of the office five or six times to confer with Daniel and Linda in the parking lot, spending a total of approximately one hour with them. She testified that she provided each person in attendance with a copy of the draft deed, although Daniel and Linda testified that they did not recall receiving copies.
Ms. Fountaine testified that she read the property description in the proposed deed, other than the metes and bounds description for Parcel 2, to Daniel and Linda. The property description for Parcel 2 in the deed begins with the words ?[a] certain lot or parcel of land with all buildings and wharf thereon . . ..? (Emphasis added.) Daniel and Linda each testified that neither of them has any recollection of hearing the word ?wharf? in the property description, nor of reading it in the deed. While Daniel has a reading disability, Linda does not. Apart from difficulty in reading, Daniel does not have any impairment in his ability to make adequately considered decisions.
When Respondent walked back from the court to his office, he saw Daniel and Linda?s vehicle stuck on the stone wall, and Daniel and Linda standing with Ms. Fountaine in his parking lot. Ms. Fountaine summarized the preceding events for him. Respondent understood that the reason for David?s presence was to make sure that the transaction was completed promptly; Ms. Fountaine testified that David?s expressed intent was to make sure that all of Daniel and Linda?s property on the island was conveyed to Zachary.
Respondent testified that Linda told him that she really wished that she and Daniel did not have to sell the wharf; that he went into the office and asked David whether the wharf could be excluded; and that he returned and told Daniel and Linda that David wanted them to convey all their island property, and that David would not finance the purchase otherwise. Daniel and Linda denied any recollection of this exchange. It was undisputed, however, that Respondent advised Daniel and Linda that they did not need to go through with the transaction that day if they had unresolved concerns, and that they considered leaving, but that they ultimately decided to proceed with the transaction. Daniel and Linda signed the deed, and Respondent executed the acknowledgment, on the hood of their car. Daniel and Linda each testified that Ms. Fountaine took their acknowledgment, but the evidence at the hearing demonstrated that their recollection was mistaken.
Respondent then conferred with Attorney Hale on a closing statement, which was hand-written primarily by Attorney Hale. Respondent learned that Zachary and Laurette were required to obtain homeowners? insurance, but did not have the money to pay the $500 premium. After discussion, Daniel and Linda agreed to lend Zachary and Laurette that amount out of the sale proceeds, and Respondent subsequently prepared a promissory note for that loan.
Attorney Hale then raised the issue of proration of the property taxes. Respondent told her the property tax issue had never been previously raised or discussed, and it would not be possible to accomplish a proration if the parties wanted to complete the transaction that day. He proposed, and it appears all parties agreed, that the status of the property taxes be left as is ? in other words, if that year?s taxes had already been paid, it would be a windfall to the buyers, and if they had not, it would be a windfall to the sellers.
Daniel and Linda did not pay any Frenchboro property taxes following the sale, including any taxes assessed on the wharf. Daniel testified that he had an unwritten agreement with Zachary that Zachary would pay the property taxes on the wharf, even though it had not been conveyed to Zachary and Laurette. In March 2009, Daniel and Linda sued Zachary in Small Claims Court on an unpaid debt for the purchase of certain lobstering gear, and Zachary sued them for failure to pay the property taxes. Those actions were taken up together; Daniel and Linda subpoenaed Respondent to testify about the property taxes, and Daniel and Linda prevailed as to both matters. Daniel and Linda were apparently upset, however, that Respondent spoke in a friendly manner with Zachary at the court.
In August 2009, Daniel and Linda informed Respondent that neither they nor Zachary had intended to include the wharf interest in the July 2008 deed. They related that, instead, they intended subsequently to convey their interest in the wharf separately to Zachary and his brother Nathaniel, by means of a new and separate deed. Respondent told them he had no specific recollection about what was included in the conveyance, and that he was sure the deed had conveyed whatever Daniel and Linda had intended on that day. He advised Daniel and Linda, however, that if all parties were in agreement, the situation could be cured by means of a corrective deed. He testified that Daniel and Linda assured him Zachary and Laurette were in agreement with them on this point; Linda denied that she or Daniel made such a representation.
Daniel and Linda requested that Respondent send a letter to Zachary and Laurette confirming that the wharf interest was not included in the July 2008 conveyance. After some discussion with Daniel and Linda, but without consulting Ms. Fountaine, who was on maternity leave, Respondent prepared and sent a letter dated August 27, 2009, to Daniel and Linda, with a copy to Zachary and Laurette, which stated:
This letter will confirm that your Warrant [sic] Deed, dated July 24, 2009 [sic], to Zachary and Laurette describes two parcels and, specifically, excepts and reserves the half interest Daniel received from David and Sandra Lunt on January 30, 2004
It is my understanding that the half interest pertains to a wharf but I have not reviewed the deeds pertaining to that half interest since it was not part of the conveyance to Zachary and Laurette.
It was undisputed that Respondent?s August 2009 letter did not accurately represent the effect of the July 2008 conveyance. At the hearing, Respondent stated that he was unable to account for the ?terrible? quality of this letter, other than the fact that Ms. Fountaine was on maternity leave at the time, he had prepared it himself, and he felt unable to do good work in a timely manner without Ms. Fountaine?s help. He expressed regret and remorse for having sent the August 2009 letter.
It does not appear that Respondent ever received any response from Zachary and Laurette. However, Zachary and Nathaniel declined to go through with any subsequent purchase of the wharf interest, their position being that it had already been conveyed to Zachary and Laurette in the 2008 deed.
When Ms. Fountaine returned from maternity leave, Respondent discussed the issue with her, and she reminded him that the conveyance of the wharf interest had indeed been discussed. With his recollection refreshed by Ms. Fountaine, on October 21, 2009, Respondent sent Daniel and Linda another letter, as follows:
Finally, Stephanie, my paralegal, is back from maternity leave! When I explained to her that you thought the wharf was not included in the closing held on July 24, 2008, (of course) she remembered all the details of that day.
Stephanie says I was in court and arrived after you had agreed to include the wharf in the deed. She went over the deed description in detail with both of you to confirm that the wharf was being sold and it was what you wanted to do.
Stephanie and Barbara, my part time secretary, both recall that each of you ?just wanted to get rid of what you owned and to get off the island!? Stephanie remembers the other lawyer arriving before I got back from court. She remembers going several times from the office down to where the car was stuck and remembers my talking with both of you down in back of the office. She described it as being very hectic because of Daniel?s father?s involvement and then the arrival of Attorney Hale.
Hopefully, this will clear up the confusion to the events and intentions at the closing. I apologize that my memory of my somewhat Johnny-Come-Lately-To-The-Dance involvement in the closing was not more complete when we first talked about the wharf issue. Thank goodness for good staff. Please let me know if you have any information to share or have any questions.
Daniel and Linda subsequently requested on multiple occasions, and Respondent provided on each occasion, a complete copy of Respondent?s file related to the July 2008 real estate transaction. By letter dated May 30, 2010, Daniel submitted a grievance complaint concerning Respondent?s actions.
Because Respondent?s actions in this matter occurred both before and after August 1, 2009, this matter is governed in part by the Maine Code of Professional Responsibility in effect prior to that date (the ?Code?), and in part by the Maine Rules of Professional Conduct (the ?Rules?), which replaced the Code effective as of August 1, 2009. It is the responsibility of the Panel to review Respondent?s conduct under the applicable ethical rules in effect at the time of the conduct in question. Board of Overseers of the Bar v. Dubois, No. BAR-09-7 (Dec. 28, 2009) (slip op. at 6, n. 2). For purposes of this proceeding, the July 2008 real estate transaction was governed by the former Code, and the August 2009 and October 2009 letters were governed by the Rules.
Respondent?s actions in connection with the July 2008 real estate transaction potentially implicated former Rule 3.6(a), which stated, in pertinent part:
A lawyer must employ reasonable care and skill . . . in the performance of professional services. . . . A lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances, provided that, with respect to the provision of limited representation, the lawyer may rely on the representations of the client and the preparation shall be adequate within the scope of the limited representation . . ..
A violation of the above rule could also have constituted conduct prejudicial to the administration of justice in violation of former Rule 3.2(f)(4), and/or conduct unworthy of an attorney in violation of former Rule 3.1(a).
Former Rule 3.4(i) provided: ?A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances, and the client provides informed consent after consultation.?2 As explained in the 2001 Advisory Notes to former Rule 3.4(i):
Both lawyer and client have authority and responsibility to determine the objectives and means of representation. The scope of services to be provided by a lawyer may be limited by agreement with the client. . . . Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer?s advice may be based on the scope of the representation agreed upon by the lawyer and client, and the client?s representation of the facts.
The Panel concludes that Respondent?s representation of Daniel and Linda in connection with the July 2008 conveyance was a limited representation. Accordingly, Respondent?s preparation for the events of July 24, 2008, must be judged in light of the scope of that limited representation, and of the information communicated to him by Daniel and Linda. Respondent did what he reasonably understood Daniel and Linda had engaged him to do: prepare a deed and transfer tax form conveying the property described in the source deeds they provided. At minimum, Respondent was never informed of their intention not to include the wharf interest, and indeed it appears Respondent and Ms. Fountaine may have discussed the issue specifically with Daniel and Linda, and determined that they were willing to include the wharf interest in the conveyance, despite their reluctance to do so. The Panel is unable to conclude that Respondent?s conduct with respect to the July 2008 conveyance violated any provisions of the Code. Had Respondent?s representation of Daniel and Linda not been limited to preparation of the deed, the Panel might well have concluded that Respondent had a duty to advise Daniel and Linda more fully, including advising them not to act precipitously in selling their property due to pressure to leave the island.
With respect to matters occurring on or after August 1, 2009, which, for purposes of this proceeding, included the August 2009 and October 2009 letters, Respondent?s actions potentially implicated Rule 1.1, which provides that ?[a] lawyer shall provide competent representation to a client,? as well as Rule 1.3, which provides that ?[a] lawyer shall act with reasonable diligence and promptness in representing a client.? Respondent?s August 2009 letter did not reflect reasonable diligence or competence in determining the legal effect of the July 2008 deed with respect to the wharf interest, nor the actual facts with respect to any understanding on the part of Zachary and Laurette on that point. Accordingly, the Panel concludes that Respondent?s conduct with respect to the August 2009 letter violated Rules 1.1 and 1.3.
The October 2009 letter, on the other hand, appears to have been a good faith effort on the part of Respondent to rectify the August 2009 letter. The Panel concludes that Respondent?s conduct with respect to the October 2009 letter did not violate any provision of the Rules.
Finally, the Board has alleged violations by Respondent of various other provisions of the Code and/or the Rules, including violations relating to the alleged unreasonableness of Respondent?s fee for the July 2008 transaction; Respondent?s alleged failure to provide the entire real estate file to Daniel and Linda; Respondent?s alleged breach of a duty to remove David from his office on July 24, 2008, because David?s presence was distressing to Daniel and Linda; and Respondent?s alleged misrepresentations to Daniel and Linda. The Panel did not find any of those allegations persuasive. In summary, the Panel concludes that Respondent?s only misconduct in this matter was sending the August 2009 letter without adequate preparation and diligence.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable properly to discharge their professional duties. See M. Bar. R. 2(a). In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent violated duties owed to Daniel and Linda, and to the legal profession. Respondent did not violate any duty owed to the public, nor to the legal system.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
Respondent?s misconduct was, at worst, negligent.
(iii) the amount of actual or potential injury caused by the attorney?s misconduct;
Respondent?s misconduct with respect to the August 2009 letter caused no actual or potential injury.
(iv) the existence of any aggravating or mitigating factors.
A substantial mitigating factor with respect to Respondent?s misconduct is the confusion that prevailed with respect to the July 2008 transaction. The events of July 24, 2008, were chaotic. The property descriptions in the various deeds and mortgages were confusing and inconsistent. Daniel and Linda had unrealistic expectations, which they never communicated adequately to Respondent, about his role in the transaction.
Further mitigating factors include Respondent?s apparent reliance on the representation by Daniel and Linda in August 2009 that Zachary and Laurette had understood all along that the wharf interest was not included in the July 2008 deed, and Ms. Fountaine?s absence on maternity leave at the time Respondent prepared the August 2009 letter. Those factors help to explain, though they do not excuse, Respondent?s misconduct. Finally, Respondent expressed remorse for sending the August 2009 letter.
An aggravating factor noted by the Panel is Respondent?s prior disciplinary history, consisting of a dismissal with a warning issued October 6, 2010. See Grievance Commission File No. 09-272. While the circumstances of that matter were very different, the Panel concludes that both instances of misconduct stemmed, in part, from excessive informality in certain aspects of Respondent?s documentation practices. If Respondent had more formally documented the scope of his engagement and his clients? expectations surrounding the July 2008 transaction, he might well have avoided committing misconduct by sending the August 2009 letter. Finally, Respondent?s high degree of reliance on Ms. Fountaine, while not rising to the level of a violation of Rule 5.3, ?Responsibilities Regarding Nonlawyer Assistants,? could also be considered an aggravating factor.
For the foregoing reasons, the Panel concludes that the appropriate disposition of this matter is a dismissal with a warning in accordance with M. Bar R. 7.1(e)(3)(B). Accordingly, the Panel hereby DISMISSES the complaint, with the following WARNING to Respondent:
You are hereby warned that in order to meet your professional duty to provide competent representation to your clients, you must act with reasonable diligence, including making appropriate efforts to determine the actual state of affairs before communicating information to clients. Improving your office practices with respect to documentation of client engagements and expectations, and communications with office staff, could substantially assist you in meeting that duty.
For the Grievance Commission
Benjamin Townsend, Esq., Acting Chair
Tobi L. Schneider, Esq.
Norman A. Ross
Footnotes
1At the close of the Board?s case in chief, Respondent moved for judgment as a matter of law. The Chair denied Respondent?s motion without addressing its merits, on the basis that notwithstanding the authority of the Chair to ?control the course of proceedings? under M. Bar. R. 7.1(e)(2)(D), the Maine Bar Rules governing public disciplinary proceedings before a panel of the Grievance Commission mandate that the panel ?shall hold a hearing,? and do not contemplate dismissal of the complaint as a matter of law (other than by an abatement for failure of the complainant to proceed, in accordance with M. Bar R. 7.3(b)).
2The clients? written consent to limited representation would have been required only if the representation had involved a court appearance.
Board of Overseers of the Bar v. In Re Jeffrey J. Fairbanks
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Docket No.: BAR-99-3
Issued by: Supreme Judicial Court
Date: August 7, 2000
Respondent: Jeffrey J. Fairbanks
Bar Number: 008150
Order: Reinstatement Decision & Amended Order
Disposition/Conduct: Reprimand
Board of Overseers of the Bar v. David Austin
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Docket No.: GCF 90-K-208
Issued by: Grievance Commission
Date: January 28, 1992
Respondent: David Austin
Bar Number: 000041
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Robert P. Brown
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Docket No.: GCF-91-S-228
Issued by: Grievance Commission
Date: June 17, 1992
Respondent: Robert P. Brown
Bar Number: 003334
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Robert P. Brown
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Docket No.: Bar-92-9
Issued by: Supreme Judicial Court
Date: July 31, 1992
Respondent: Robert P. Brown
Bar Number: 003334
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. James A. Brunelle
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Docket No.: Bar-91-18
Issued by: Supreme Judicial Court
Date: May 26, 1992
Respondent: James A. Brunelle
Bar Number: 003954
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Edward H. Cloutier
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Docket No.: BAR-92-003
Issued by: Supreme Judicial Court
Date: September 14, 1992
Respondent: Edward H. Cloutier
Bar Number: 000132
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Edward H. Cloutier
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Docket No.: Bar-92-003
Issued by: Supreme Judicial Court
Date: December 7, 1992
Respondent: Edward H. Cloutier
Bar Number: 000132
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Stanley P. Cohen
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Docket No.: BAR-92-6
Issued by: Supreme Judicial Court
Date: April 15, 1992
Respondent: Stanley P. Cohen
Bar Number: 001790
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. David J. Corson
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Docket No.: GCF 90-S-185 an d90-S-186
Issued by: Grievance Commission
Date: May 4, 1992
Respondent: David J. Corson
Bar Number: 000683
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Elizabeth Kelly Ebitz
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Docket No.: BAR-92-10
Issued by: Supreme Judicial Court
Date: August 18, 1992
Respondent: Elizabeth Kelly Ebitz
Bar Number: 002036
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Barry M. Faber
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Docket No.: GCF 90-S-86
Issued by: Grievance Commission
Date: April 29, 1992
Respondent: Barry M. Faber
Bar Number: 000089
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Peter C. Fessenden
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Docket No.: BAR-92-15
Issued by: Supreme Judicial Court
Date: December 17, 1992
Respondent: Peter C. Fessenden
Bar Number: 000684
Order: Suspended Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. George W. Heselton
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Docket No.: GCF 88-K-137 and 89-K-56
Issued by: Grievance Commission
Date: February 25, 1992
Respondent: George W. Heselton
Bar Number: 001022
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Martin R. Johnson
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Docket No.: BAR-92-2
Issued by: Supreme Judicial Court
Date: March 16, 1992
Respondent: Martin R. Johnson
Bar Number: 001244
Order: Temporary Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas F. Malone
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Docket No.: BAR-90-13 and BAR-91-33
Issued by: Supreme Judicial Court
Date: May 21, 1992
Respondent: Thomas F. Malone
Bar Number: 001813
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Donald T. Massey
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Docket No.: GCF 90-S-265
Issued by: Grievance Commission
Date: June 5, 1992
Respondent: Donald T. Massey
Bar Number: 002697
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Brian R. Olson
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Docket No.: Bar-91-22 and Bar-92-12
Issued by: Supreme Judicial Court
Date: October 2, 1992
Respondent: Brian R. Olson
Bar Number: 000271
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Tristine Grimes Smith
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Docket No.: GCF 90-S-185 and 90-S-186
Issued by: Grievance Commission
Date: May 4, 1992
Respondent: Tristine Grimes Smith
Bar Number: 002878
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Schulyer G. Steele
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Docket No.: GCF 90-S-267
Issued by: Grievance Commission
Date: October 15, 1992
Respondent: Schulyer G. Steele
Bar Number: 002817
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Torrey A. Sylvester
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Docket No.: BAR-92-01
Issued by: Supreme Judicial Court
Date: May 19, 1992
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Richard H. Thompson
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Docket No.: GCF 91-K-244
Issued by: Grievance Commission
Date: September 23, 1992
Respondent: Richard H. Thompson
Bar Number: 002539
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Judith W. Thornton
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Docket No.: GCF 90-S-211 and 90-S-212
Issued by: Grievance Commission
Date: February 24, 1992
Respondent: Judith W. Thornton
Bar Number: 003807
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Emily Fuller Watson
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Docket No.: BAR-92-11
Issued by: Supreme Judicial Court
Date: July 16, 1992
Respondent: Emily Fuller Watson
Bar Number: 000695
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. George F. Wood
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Docket No.: BAR-91-025
Issued by: Supreme Judicial Court
Date: January 3, 1992
Respondent: George F. Wood
Bar Number: 001167
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Andrea S. Manthorne
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Docket No.: BAR11-5
Issued by: Maine Supreme Judicial Court
Date: September 6. 2011
Respondent: Andrea S. Manthorne
Bar Number: 004413
Order: Reinstatement
Disposition/Conduct: NA
ORDER
For good cause shown, and there being no objection by the Board of Overseers of the Bar, it is hereby ORDERED that Andrea S, Manthorne's Amended Petition for Reinstatement is granted,
For the Court
Jon D. Levy, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. Thomas E. Audet
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Docket No.: Bar-93-8
Issued by: Supreme Judicial Court
Date: August 11, 1993
Respondent: Thomas E. Audet
Bar Number: 002084
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E. Audet
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Docket No.: Bar-93-8
Issued by: Supreme Judicial Court
Date: September 29, 1993
Respondent: Thomas E. Audet
Bar Number: 002084
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Dan P. Barrett
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Docket No.: GCF 92-S-32
Issued by: Grievance Commission
Date: February 4, 1993
Respondent: Dan P. Barrett
Bar Number:
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. John W. Benoit
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Docket No.: GCF 92-S-42
Issued by: Grievance Commission
Date: June 22, 1993
Respondent: John W. Benoit
Bar Number: 000501
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas O. Bither
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Docket No.: BAR-93-2
Issued by: Supreme Judicial Court
Date: June 8, 1993
Respondent: Thomas O. Bither
Bar Number: 001691
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re James A. Brunelle
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Docket No.: BAR-91-18 and BAR-93-5
Issued by: Supreme Judicial Court
Date: April 5, 1993
Respondent: James A. Brunelle
Bar Number: 003954
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Philip L. Ingeneri
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Docket No.: BAR-11-10
Issued by: Supreme Judicial Court
Date: September 21, 2011
Respondent: Philip L. Ingeneri
Bar Number: 001443
Order: Resignation
Disposition/Conduct: N/A
ORDER
Attorney Philip L. Ingeneri was admitted to practice in Maine in 1970. This matter is before the Court to consider his voluntary resignation, dated August 25, 2011, that has been tendered by him pursuant to M. Bar R. 7.3(g). Mr. Ingeneri?s letter of resignation is supported by his Affidavit also dated August 25, 2011. On August 31, 2011 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Mr. Ingeneri?s resignation from the Maine bar.
After conducting a testimonial hearing on September 21, 2011, at which Bar Counsel and Mr. Ingeneri appeared, it is hereby ORDERED:
Pursuant to M. Bar R. 7.3(g)(3), Philip L. Ingeneri?s resignation from the Maine bar is accepted. Thirty (30) days from the date of this Order, his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. Within that same thirty (30) day period, Mr. Ingeneri shall also comply with and certify to the Court and to the Board of Overseers of the Bar his completion of all notification reporting requirements pursuant to M. Bar R. 7.3(i)(1).
As required by M. Bar R. 7.3(g)(3), Philip L. Ingeneri?s supporting Affidavit dated August 25, 2011 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Mr. Ingeneri seek reinstatement to the Maine bar, that Affidavit may then be made public without further order of this Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Donald G. Alexander, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. James F. Cloutier
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Docket No.: GCF 92-K-20
Issued by: Grievance Commission
Date: January 13, 1993
Respondent: James F. Cloutier
Bar Number: 002126
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Richard B. Slosberg
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Docket No.: BAR-99-1
Issued by: Supreme Judicial Court
Date: October 13, 2000
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Reinstatement
Disposition/Conduct: NA
Board of Overseers of the Bar v. Albert P.C. Lefebvre
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Docket No.: Yor-97-77
Issued by: Maine Supreme Judicial Court
Date: January 29, 1998
Respondent: Albert P.C. Lefebvre
Bar Number: 002800
Order: Decision Affirmed
Disposition/Conduct:
Board of Overseers of the Bar v. In Re George Francis Wood
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Docket No.: BAR-91-025
Issued by: Supreme Judicial Court
Date: December 13, 2001
Respondent: George Francis Wood
Bar Number: 001167
Order: Reinstatement
Disposition/Conduct: NA
Board of Overseers of the Bar v. Earle S. Tyler, Jr.
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Docket No.: BAR-00-4
Issued by: Supreme Judicial Court
Date: February 22, 2001
Respondent: Earle S. Tyler, Jr.
Bar Number: 001745
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. George Francis Wood
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Docket No.: BAR-91-025
Issued by: Supreme Judicial Court
Date: February 12, 2002
Respondent: George Francis Wood
Bar Number: 001167
Order: Decision & Amended Order
Disposition/Conduct:
Board of Overseers of the Bar v. Charles G. Williams III
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Docket No.: BAR-02-5
Issued by: Supreme Judicial Court
Date: April 16, 2002
Respondent: Charles G. Williams III
Bar Number: 008827
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Lenore A. Anderson
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Docket No.: BAR-01-04
Issued by: Supreme Judicial Court
Date: January 18, 2022
Respondent: Lenore A. Anderson
Bar Number: 003071
Order: Receiver Appointment
Disposition/Conduct:
Board of Overseers of the Bar v. Stephen W. Devine
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Docket No.: Bar-92-14
Issued by: Supreme Judicial Court
Date: January 22, 1993
Respondent: Stephen W. Devine
Bar Number: 001824
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Mark S. Freme
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Docket No.: BAR-93-7
Issued by: Supreme Judicial Court
Date: June 10, 1993
Respondent: Mark S. Freme
Bar Number: 002971
Order: Temporary Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Christopher D. Hardy
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Docket No.: GCF 93-K-61
Issued by: Grievance Commission
Date: November 10, 1993
Respondent: Christopher D. Hardy
Bar Number: 002636
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re James Horton
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Docket No.: BAR 88-15, 89-12,. 90-12
Issued by: Grievance Commission
Date: June 2, 1993
Respondent: James Horton
Bar Number: 001791
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. Margaret T. Johnson
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Docket No.: GCF 91-J-57
Issued by: Grievance Commission
Date: February 18, 1993
Respondent: Margaret T. Johnson
Bar Number: 000143
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. James P. Loring
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Docket No.: GCF 91-S-120
Issued by: Grievance Commission
Date: December 21, 1993
Respondent: James P. Loring
Bar Number: 003392
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Joseph R. Mackey
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Docket No.: BAR-93-15
Issued by: Supreme Judicial Court
Date: November 29, 1993
Respondent: Joseph R. Mackey
Bar Number: 000689
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas F. Malone
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Docket No.: Bar-93-9
Issued by: Supreme Judicial Court
Date: May 25, 1993
Respondent: Thomas F. Malone
Bar Number: 001813
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Homer Michael
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Docket No.: BAR-93-4
Issued by: Supreme Judicial Court
Date: May 28, 1993
Respondent: Homer Michael
Bar Number: 001346
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. James G. Palmer
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Docket No.: Bar-93-6
Issued by: Supreme Judicial Court
Date: May 5, 1993
Respondent: James G. Palmer
Bar Number: 001532
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Norman S. Reef
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Docket No.: BAR-93-1
Issued by: Supreme Judicial Court
Date: October 27, 1993
Respondent: Norman S. Reef
Bar Number: 000459
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Neil Shankman
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Docket No.: GV-91-S-277
Issued by: Grievance Commission
Date: February 19, 1993
Respondent: Neil Shankman
Bar Number: 001578
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-92-13, 93-3
Issued by: Supreme Judicial Court
Date: July 1, 1993
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Paul O. Dillon
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Docket No.: GCF 10-337
Issued by: Grievance Commission
Date: September 27, 2011
Respondent: Paul O. Dillon
Bar Number: 006894
Order: Reprimand
Disposition/Conduct: Diligence; Communication; Misconduct; Neglect
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On September 27, 2011, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Paul O. Dillon, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 2, 2011.
At the hearing, Respondent Dillon appeared pro se and the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Complainants, Hazel and Edwin Littlefield, were provided with a copy of the parties? proposed Report of Findings and Order to review in advance of the hearing and approved the parties? proposed sanction. Complainant Hazel Littlefield was also present and she addressed the Panel. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Paul O. Dillon, Esq. (Dillon) of Corinth, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Dillon was admitted to the Maine Bar in 1989 and he is currently a sole practitioner.
On September 15, 2010, Edwin and Hazel Littlefield (the Littlefields) filed a complaint against Dillon stating that they had engaged him at the beginning of November 2007 for estate planning purposes. They alleged that he failed to timely complete all of the legal work necessary to effectuate their intent, repeatedly told them that the work would be completed by certain dates and failed to provide any reason for the delays.
Based upon Dillon?s analysis of their financial circumstances and their intent, the Littlefields resolved to create individual revocable living trusts, Wills to supplement those trusts and other estate planning documents. At an appointment on November 29, 2007, the Littlefields executed the trusts and other ancillary documents prepared by Dillon.
In order to effectuate the Littlefields? estate planning decisions, all of their assets then needed to be equally placed into their individual trusts. Those assets were diversified involving multiple financial accounts, life insurance policies and annuities, a parcel of real estate in Florida and seventeen (17) parcels of real estate in Maine. Additionally, some of the Maine real estate parcels were co-owned by other family members. While Dillon timely completed the essential documents to transfer financial assets to the trusts, he acknowledges that he did not complete and record all of the ancillary deeds until February of 2011.
The Littlefields initially intended to transfer their Maine real estate holdings to the trusts from their then existing ownership arrangements which consisted of property held in joint tenancy together, property held jointly with rights of survivorship, property held in joint tenancy with other co-owners and property held as tenants in common with other co-owners. Before the trust documents were executed, however, the Littlefields and other co-owners agreed to exchange some of the co-owned properties and to divide other properties so that the Littlefields would be the sole owners of all the real estate parcels transferred into their respective trusts.
Dillon timely drafted the deeds which required the Littlefields? signatures. After this grievance complaint was filed, Dillon recognized his neglect in delaying the recording of those deeds after they had been executed on or about November 29, 2007. Dillon has now admitted to the Littlefields that he had, unrealistically, planned on recording all of the deeds at the same time. Dillon has now further admitted that he became overwhelmed with the task of drafting the additional deeds which required the creation of legal descriptions for the properties being exchanged and divided. Instead of notifying the Littlefields that he was having difficulty developing the new legal descriptions and rights of way for the properties being divided, Dillon repeatedly gave them false and unrealistic assurances that the deeds would be completed by self-imposed time limits.
Prior to the time the Littlefields filed this grievance complaint, Dillon had caused an attorney to draft and record the Florida deed. In mitigation of his then partially recognized neglect of the Littlefields? matter, Dillon paid for the drafting and recording of that deed. He renewed his efforts to complete and record the rest of the deeds after learning of the Littlefields? complaint. Most of the deeds which required additional signatures were completed in November 2010 and all of the deeds were recorded by February 2011. Dillon has now accepted responsibility for failing to timely complete all of the legal work necessary to fund their respective trusts and has apologized to the Littlefields for not meeting the earlier deadlines he had given them. In further mitigation of his misconduct, Dillon paid for the recording and transfer tax on all of the Maine properties.
Dillon admits that his failure to complete the work in a reasonable time, failure to keep his clients informed and general neglect of the matter prior to August 1, 2009 constituted violations of the then applicable Code of Professional Responsibility: 3.1(a); 3.2(f)(4) and 3.6(a)(3). Dillon also admits that his continued failures after August 1, 2009 constituted violations of the following Maine Rules of Professional Conduct: 1.3; 1.4(a)(1)(2)(3)(4) and 8.4(a)(d).
Moreover, when Bar Counsel?s office contacted Dillon during its investigation and processing of this complaint matter, Dillon failed to ever answer or respond to the Littlefields? complaint despite having been granted three extensions of time in which to do so. Dillon ultimately did file an Answer to the Disciplinary Petition and he has accepted responsibility for his failures to properly discharge his duties. Dillon has expressed his regret at that lapse and admits that his initial lack of response constituted a violation of M. R. Prof. Conduct 8.1(b) and 8.4(d).
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered in determining sanctions under the ABA Standards is to determine what duty has been breached. The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Dillon violated the duties he owed to the Littlefields by failing to complete the documents necessary to fund their chosen estate plans and failing to inform them of the reasons for his delay. Additionally, Dillon violated his duties to the profession by failing to participate in or cooperate with the investigation conducted by Bar Counsel.
Dillon did not intentionally mislead the Littlefields when he told them that his work would be concluded because he did believe (unrealistically) that he would complete the work each time he set a deadline. His failure to respond to Bar Counsel?s inquiries was due in part to personal reasons and in part to his efforts to complete and record the Littlefields? deeds.
The Littlefields were injured when Attorney Dillon?s lack of diligence deprived them of the certainty of their chosen estate plans for over three (3) years and exposed their respective probate estates to unnecessary state and federal estate taxes during that time.
The Panel notes that Dillon was issued a dismissal with a warning on April 2, 1998 after he neglected to arrange for coverage of another client?s matter during a time he was unavailable due to illness. In this instance, with the Littlefields, Dillon neglected to timely complete the work because the task became daunting to him.
The Panel notes, however, the presence of several mitigating factors. Among them, Dillon has taken responsibility for his transgressions, apologized to the Littlefields, completed the previously neglected work and paid the expenses necessary to produce and record their deeds. Additionally, Dillon took responsibility for his failure to respond to Bar Counsel and apologized for his misconduct. At the disciplinary hearing, Dillon expressed his remorse for his serious violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct.
Since the evidence supports the above findings and Dillon agrees that he did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Dillon?s separately executed Waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Paul O. Dillon, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C),(4).
For the Grievance Commission
Maurice A. Libner, Esq., Chair
Mary A. Denison, Esq.
Kathleen A. Schulz
Board of Overseers of the Bar v. Torrey A. Sylvester
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Docket No.: BAR 92-1
Issued by: Supreme Judicial Court
Date: October 8, 1993
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. George F. Wood
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Docket No.: BAR-91-25
Issued by: Supreme Judicial Court
Date: April 16, 1993
Respondent: George F. Wood
Bar Number: 001167
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Todd R. Collins
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Docket No.: GCF 11-071
Issued by: Grievance Commission
Date: October 12, 2011
Respondent: Todd R. Collins
Bar Number: 008970
Order: Dismissal
Disposition/Conduct: NA
ORDER OF DISMISSAL PURSUANT TO BOARD REGULATION NO. 51
For good cause, and under the terms set forth below, Panel E of the Grievance Commission of the Board of Overseers of the Bar ("the Panel") hereby dismisses the Disciplinary Petition dated July 27,2011 in this matter pursuant to Board Regulation No.51.
Respondent Todd R. Collins is the current District Attorney of Prosecutorial District 8; he took office in January 2011. A sua sponte grievance complaint was docketed and filed on March 3, 2011, concerning a long-standing1 policy of the Office of the District Attorney, the ?No Talk, No Deal? Policy. Respondent provided the Panel with a copy of the Policy and a detailed and candid explanation of the Policy.
Furthermore, when Respondent learned that the Board of Overseers was questioning the Policy, he promptly issued written orders suspending the operation of the Policy and protecting any party from adverse action while the Policy was under review.
The purpose of the Policy is to decrease the drug crime in Aroostook County by encouraging defendants to confess to the charges against themselves, and to cooperate with the agents of the Maine Drug Enforcement Agency [MDEA] in their investigation and/or prosecution of other drug crimes in Aroostook County. The Policy announced that, as a prerequisite to entering into plea negotiations with the District Attorney?s Office, a defendant must submit to a voluntary interview with an agent, a ?debriefing,? talking candidly about both his/her involvement with the pending charges, and also about whatever else that he/she was aware about illegal drug activity of others. A defendant who declined to submit to an interview was free to exercise his/her rights by going to trial, or to enter an open plea and present his/her evidence and argument to the judge on the issue of the appropriate sentence. However, there would be no negotiations for a plea agreement with the District Attorney?s Office, absent a ?full debriefing.?
Concurrent with the ?No Talk, No Plea? Policy, the MDEA agents had a policy, with respect to defendants who were represented by counsel, not to allow counsel to sit in on the debriefing interview. Defendants were allowed to have their attorney waiting in the hall, and were allowed to recess the interview at any time, in order to step out and consult privately with their attorney, but if any defendant insisted on his/her attorney?s presence, the agent would simply terminate the interview, and report the defendant to the District Attorney?s Office as not complying with the ?No Talk, No Plea? Policy. A central tenant of the Policy is that the defendant and counsel would then be foreclosed from plea negotiations with the District Attorney?s Office.
This Panel reviewed the complaint and response pursuant to. M. Bar R. 7.1(d) ?Preliminary Panel Review.? Under the Maine Bar Rules, that stage of the grievance complaint process is a preliminary review, conducted on the documents only, to screen out non-meritorious complaints, and to forward complaints which appear to have ?probable cause? to another Panel for a full hearing. M. Bar R. 7.1(d)(5).
This Panel was concerned that the ?No Talk, No Plea? Policy, in combination with the understood policy of the MDEA agents about the presence, or rather absence, of defense attorneys, could be seen as a violation of Maine Rules of Professional Responsibility 4.2(c):
(c) If a prosecutor knows a person is represented with respect to the matter under investigation:
(1) the prosecutor shall not communicate directly with that person absent consent of the other lawyer or a court order; and
(2) The prosecutor shall not extend, through any third person an offer to meet with the prosecutor or an offer to enter into plea negotiations with the prosecutor, or an offer of a plea agreement absent consent of the other lawyer or a court order. [emphasis added]
Accordingly, at its earlier preliminary review, this Panel found probable cause of misconduct subject to sanction and thereby directed Bar Counsel to forward the complaint to another Panel for a formal, public hearing at which this issue could be explored and decided with the assistance of an evidentiary record and the presence of Bar Counsel and the Respondent.2
Shortly after this Panel?s determination, the Respondent offered to modify his ?No Talk, No Deal? Policy in the following way:
Respondent shall provide the defendant and the defendant's attorney (for those defendants represented by counsel) with an election of one of the following options prior to their engaging in a debriefing interview: (1) bifurcating the interview by allowing the defendant's attorney to be present for that portion of the interview dealing with the facts of the pending case, but then to have the defendant's attorney leave so that the defendant can discuss those matters not subject to the attorney's representation privately with the agents; (2) allowing the defendant's attorney to be present for the full interview with the agents, but with the understanding that the attorney will necessarily withdraw from all conflict cases generated from that interview process; (3) allowing the defendant to meet with the agents outside the presence, but with the written consent, of the defendant's attorney; or (4) obtaining a written waiver of counsel and/or Miranda warnings from defendants (for unrepresented defendants).
Respondent (through counsel) letter of September 29, 2011.
This Panel concludes that these modifications in the ?No Talk, No Deal? Policy completely eliminate any concerns that the Policy might conflict with M.R.P.C. 4.2(c), even in its most expansive interpretation.
Given the above factors, and consistent with the purpose of the Rules as set forth in M. Bar. R. 2, therefore, this Panel's directive to proceed to hearing is hereby rescinded pursuant to Board Regulation No. 51, and this matter is now hereby dismissed pursuant to M. Bar R. 7.1 (d).
This Order of Dismissal shall be deemed to be a hearing order of the Grievance Commission and therefore shall be published on the Board's website consistent with Board Regulation 56.
For the Grievance Commission
Victoria E. Powers, Esq., Chair for the entire Panel E
Footnotes
1Apparently, the policy pre-dated Collins' election to office by roughly 22 years; he re-issued the policy over his own signature shortly after taking office. It is this version of the policy that was submitted to the Panel.
2Respondent has made it clear to the Panel that he believes the Policy complies with all of the Maine Rules of Professional Conduct, and MRPC 4.2(c) in specific.
Board of Overseers of the Bar v. Andrews B. Campbell
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Docket No.: BAR-87-15
Issued by: Supreme Judicial Court
Date: February 22, 1994
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas S. Carey
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Docket No.: GCF 93-K-129, 93-K-232
Issued by: Grievance Commission
Date: June 22, 1994
Respondent: Thomas S. Carey
Bar Number: 000095
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Edward H. Cloutier
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Docket No.: BAR-92-003
Issued by: Supreme Judicial Court
Date: May 2, 1994
Respondent: Edward H. Cloutier
Bar Number: 000132
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Richard S. Edwards
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Docket No.: BAR-93-12, BAR-93-18
Issued by: Supreme Judicial Court
Date: December 30, 1993
Respondent: Richard S. Edwards
Bar Number: 001083
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Torrey A. Sylvester
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Docket No.: BAR-92-01
Issued by: Supreme Judicial Court
Date: November 28, 1994
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas R. Acker
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Docket No.: Bar-90-15
Issued by: Supreme Judicial Court
Date: March 1, 1995
Respondent: Thomas R. Acker
Bar Number: 003381
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas R. Acker
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Docket No.: Bar-90-15
Issued by: Supreme Judicial Court
Date: May 9, 1995
Respondent: Thomas R. Acker
Bar Number: 003381
Order: Decision
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Thomas R. Acker
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Docket No.: Bar-90-15
Issued by: Supreme Judicial Court
Date: September 29, 1995
Respondent: Thomas R. Acker
Bar Number: 003381
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Jacob Apuzzo
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Docket No.: BAR-94-6
Issued by: Supreme Judicial Court
Date: January 17, 1995
Respondent: Jacob Apuzzo
Bar Number: 002635
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Andrews B. Campbell
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Docket No.: Cum-94-723
Issued by: Supreme Judicial Court
Date: July 27, 1995
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. Richard S. Edwards
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Docket No.: BAR-93-12, BAR93-18
Issued by: Supreme Judicial Court
Date: October 10, 1995
Respondent: Richard S. Edwards
Bar Number: 001083
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Gordon P. Gates
Docket No.: Bar-95-1, Bar-95-5
Issued by: Supreme Judicial Court
Date: July 10, 1995
Respondent: Gordon P. Gates
Bar Number: 007403
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. David W. Holler
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Docket No.: GCF 93-S-110, 93-S-187
Issued by: Grievance Commission
Date: October 30, 1995
Respondent: David W. Holler
Bar Number: 006775
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Torrey A. Sylvester
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Docket No.: BAR-92-01
Issued by: Supreme Judicial Court
Date: November 27,, 1995
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. John M. Whalen
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Docket No.: GCF 93-K-125
Issued by: Grievance Commission
Date: December 6, 1995
Respondent: John M. Whalen
Bar Number: 000827
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Peter J. Becker
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Docket No.: BAR-86-1, BAR-86-12
Issued by: Supreme Judicial Court
Date: October 27, 1986
Respondent: Peter J. Becker
Bar Number: 001645
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. James J. Fitzpatrick
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Docket No.: BAR-85-104
Issued by: Supreme Judicial Court
Date: April 3, 1986
Respondent: James J. Fitzpatrick
Bar Number: 000715
Order: Reprimand Decision Affirmed
Disposition/Conduct:
Board of Overseers of the Bar v. James S. Horton
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Docket No.: BAR-86-16
Issued by: Supreme Judicial Court
Date: October 27, 1986
Respondent: James S. Horton
Bar Number: 001791
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Parrish A. Manson, Jr.
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Docket No.: BAR-84-41, BAR-85-102
Issued by: Supreme Judicial Court
Date: February 25, 1986
Respondent: Parrish A. Manson, Jr.
Bar Number: 000823
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Lawrence E. Merrill
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Docket No.: BAR 85-99
Issued by: Supreme Judicial Court
Date: February 19, 1986
Respondent: Lawrence E. Merrill
Bar Number: 000990
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Jeffrey Pickering
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Docket No.: BAR-86-9
Issued by: Supreme Judicial Court
Date: April 18, 1986
Respondent: Jeffrey Pickering
Bar Number: 001644
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Susan E. Roman
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Docket No.: BAR-85-103
Issued by: Supreme Judicial Court
Date: September 2, 1986
Respondent: Susan E. Roman
Bar Number: 002532
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Neil S. Shankman
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Docket No.: BAR-85-100
Issued by: Supreme Judicial Court
Date: July 31, 1986
Respondent: Neil S. Shankman
Bar Number: 001578
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Oscar Walker
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Docket No.: BAR-86-10
Issued by: Supreme Judicial Court
Date: August 8, 1986
Respondent: Oscar Walker
Bar Number: 001585
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. In Re James D. Carr
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Docket No.: BAR-84-17
Issued by: Supreme Judicial Court
Date: December 20, 1985
Respondent: James D. Carr
Bar Number: 001744
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. James M. Dineen
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Docket No.: Yor-85-56
Issued by: Supreme Judicial Cou
Date: November 4, 1985
Respondent: James M. Dineen
Bar Number: 001653
Order: Suspension Decision Affirmed
Disposition/Conduct:
Board of Overseers of the Bar v. Richard M. Dostie
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Docket No.: 85-102
Issued by: Grievance Commission
Date: November 14, 1985
Respondent: Richard M. Dostie
Bar Number: 001589
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Joanne M. Davis Edwards
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Docket No.: BAR-83-49
Issued by: Supreme Judicial Court
Date: January 18, 1985
Respondent: Joanne M. Davis Edwards
Bar Number: 001742
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Wallace A. Bilodeau
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Docket No.: BAR-86-14, BAR-87-5, BAR-87-16
Issued by: Supreme Judicial Court
Date: October 21, 1987
Respondent: Wallace A. Bilodeau
Bar Number: 000887
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. John M. Callaway
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Docket No.: BAR-87-17
Issued by: Supreme Judicial Court
Date: December 11, 1987
Respondent: John M. Callaway
Bar Number: 001916
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Andrews B. Campbell
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Docket No.: BAR-86-24
Issued by: Supreme Judicial Court
Date: August 26, 1987
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Andrews B. Campbell
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Docket No.: Bar-87-15
Issued by: Supreme Judicial Court
Date: December 17, 1987
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Paulette Dodge
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Docket No.: Bar-87-8, Bar-87-18
Issued by: Supreme Judicial Court
Date: December 7, 1987
Respondent: Paulette Dodge
Bar Number: 003005
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Richard M. Dostie
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Docket No.: BAR-87-7
Issued by: Supreme Judicial Court
Date: August 11, 1987
Respondent: Richard M. Dostie
Bar Number: 001589
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Charles Kadish
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Docket No.: BAR-87-20
Issued by: Supreme Judicial Court
Date: December 4, 1987
Respondent: Charles Kadish
Bar Number: 002668
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Jeffrey Pickering
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Docket No.: BAR-87-1
Issued by: Supreme Judicial Court
Date: April 24, 1987
Respondent: Jeffrey Pickering
Bar Number: 001644
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Norman S. Reef
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Docket No.: BAR-86-18
Issued by: Supreme Judicial Court
Date: May 19, 1987
Respondent: Norman S. Reef
Bar Number: 000459
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Susan E. Roman
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Docket No.: Bar-87-2
Issued by: Supreme Judicial Court
Date: May 28, 1987
Respondent: Susan E. Roman
Bar Number: 002532
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Susan E. Roman
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Docket No.: Bar-87-2
Issued by: Supreme Judicial Court
Date: May 28, 1987
Respondent: Susan E. Roman
Bar Number: 002532
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Earl J. Wahl
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Docket No.: BAR 86-11
Issued by: Supreme Judicial Court
Date: January 20, 1987
Respondent: Earl J. Wahl
Bar Number: 000959
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Richard S. Bach
Docket No.: BAR-03-02
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 3, 2003
Respondent: Richard S. Bach
Bar Number: 007337
Order: Resignation
Disposition/Conduct: Resignation
Board of Overseers of the Bar v. Wallace A. Bilodeau, Esq.
Docket No.: Bar-03-01
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 29, 2003
Respondent: Wallace A. Bilodeau, Esq.
Bar Number: 000887
Order: Temporary Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Sue A. Bushey
Docket No.: BAR-97-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 28, 2003
Respondent: Sue A. Bushey
Bar Number: 003069
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Patricia A. Danisinka-Washburn, Esq.
Docket No.: Bar-03-04
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 5, 2003
Respondent: Patricia A. Danisinka-Washburn, Esq.
Bar Number: 001747
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Patricia A. Danisinka-Washburn, Esq.
Docket No.: Bar-03-04
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 26, 2003
Respondent: Patricia A. Danisinka-Washburn, Esq.
Bar Number: 001747
Order: Suspended Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Elizabeth Kelly Ebitz, Esq.
Docket No.: GCF-02-166
Issued by: Grievance Commission
Date: July 3, 2003
Respondent: Elizabeth Kelly Ebitz
Bar Number: 002036
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Gordon P. Gates
Docket No.: BAR-95-1 and 95-5
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 10, 2003
Respondent: Gordon P. Gates
Bar Number: 007403
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Amy B. McGarry
Docket No.: GCF-02-105
Issued by: Grievance Commission
Date: April 9, 2003
Respondent: Amy B. McGarry
Bar Number: 008348
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Patricia A. Danisinka-Washburn
Docket No.: Bar-03-4
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 9, 2004
Respondent: Patricia A. Danisinka-Washburn
Bar Number: 001747
Order: Reinstatement Final Order
Disposition/Conduct:
Board of Overseers of the Bar v. Carolee T. Howes, Esq.
Docket No.: BAR-04-09
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 13, 2004
Respondent: Carolee T. Howes, Esq.
Bar Number: 008142
Order: Receiver Appointment
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg, Esq.
Docket No.: BAR-04-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 23, 2004
Respondent: Richard B. Slosbert, Esq.
Bar Number: 003446
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Donald A. Spear
Docket No.: BAR-04-2
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 24, 2004
Respondent: Donald A. Spear
Bar Number: 000227
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas R. Acker
Docket No.: Bar-05-08
Issued by: Single Justice, Maine Supreme Judicial Court
Date: October 18, 2006
Respondent: Thoams R. Acker
Bar Number: 003381
Order: Receiver Appointment
Disposition/Conduct:
Board of Overseers of the Bar v. Teresa L. DeNafio
Docket No.: BAR-94-7
Issued by: Single Justice, Maine Supreme Judicial Court
Date: January 30, 1995
Respondent: Teresa L. DeNafio
Bar Number: 003494
Order: Suspension Reciprocal Discipline
Disposition/Conduct:
Board of Overseers of the Bar v. James H. Dineen
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Docket No.: Cum-84-9
Issued by: Supreme Judicial Court
Date: September 5, 1984
Respondent: James H. Dineen
Bar Number: 001426
Order: Decision
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Morris D. Rubin
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Docket No.: SJC BAR-83-41
Issued by: Supreme Judicial Court
Date: January 23, 1984
Respondent: Morris D. Rubin
Bar Number: 002850
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel G. Aiken
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Docket No.: BAR-83-14
Issued by: Supreme Judicial Court
Date: May 25, 1983
Respondent: Daniel G. Aiken
Bar Number: 002020
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Jacob Apuzzo
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Docket No.: 87-K-138
Issued by: Grievance Commission
Date: November 30, 1988
Respondent: Jacob Apuzzo
Bar Number: 002635
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Jura Burdinik
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Docket No.: 87-S-58, 87-S-71, 87-S-95, 87-S-126, 87-S-150, 87-S-162, 87-S-175, 88-S-49
Issued by: Grievance Commission
Date: September 28, 1988
Respondent: Jura Burdinik
Bar Number: 002022
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. James Martin Dineen
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Docket No.: 86-215
Issued by: Grievance Commission
Date: February 19, 1988
Respondent: James Martin Dineen
Bar Number: 001653
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Ward T. Hanscom
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Docket No.: 87-S-28
Issued by: Grievance Commission
Date: January 27, 1988
Respondent: Ward T. Hanscom
Bar Number: 001630
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. James S. Horton
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Docket No.: 83-11
Issued by: Grievance Commission
Date: March 9, 1988
Respondent: James S. Horton
Bar Number: 001791
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. George S. Hutchins, Jr.
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Docket No.: 87-K-66, 87-S-73, 87-K-102
Issued by: Grievance Commission
Date: August 9, 1988
Respondent: George S. Hutchins, Jr.
Bar Number: 001845
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Calvin B. Sewall
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Docket No.: 86-198, 87-K-8
Issued by: Grievance Commission
Date: May 2, 1988
Respondent: Calvin B. Sewall
Bar Number: 000274
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Ralph W. Brown
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Docket No.: 89-S-93, 89-S-126
Issued by: Grievance Commission
Date: November 17, 1989
Respondent: Ralph W. Brown
Bar Number: 002704
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Andrews B. Campbell
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Docket No.: Bar-87-15
Issued by: Supreme Judicial Court
Date: July 26, 1989
Respondent: Andrews B. Campbell
Bar Number: 001344
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Donald H. Goodridge
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Docket No.: BAR-88-16
Issued by: Supreme Judicial Court
Date: August 3, 1989
Respondent: Donald H. Goodridge
Bar Number: 000980
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Neil D. Mackerron
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Docket No.: 88-K-67, 88-K-68, 88-K-75
Issued by: Grievance Commission
Date: October 23, 1989
Respondent: Neil D. Mackerron
Bar Number: 001090
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Neil D. Mackerron
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Docket No.: CUM-90-153
Issued by: Supreme Judicial Court
Date: October 18, 1990
Respondent: Neil D. Mackerron
Bar Number: 001090
Order: Decision Affirmed
Disposition/Conduct:
Board of Overseers of the Bar v. Neil D. Mackerron
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Docket No.: Bar-88-10, Bar-88-10A
Issued by: Supreme Judicial Court
Date: March 28, 1990
Respondent: Neil D. Mackerron
Bar Number: 001090
Order: Reprimand Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel J. Murphy
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Docket No.: AND-89-331
Issued by: Supreme Judicial Court
Date: February 27, 1990
Respondent: Daniel J. Murphy
Bar Number: 001900
Order: Disbarment Decision Affirmed
Disposition/Conduct:
Board of Overseers of the Bar v. Harvey J. Putterbaugh
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Docket No.: BAR-88-2
Issued by: Supreme Judicial Court
Date: January 12, 1990
Respondent: Harvey J. Putterbaugh
Bar Number: 002898
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Arthur H. Bloomberg
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Docket No.: Bar-91-15
Issued by: Supreme Judicial Court
Date: October 11, 1991
Respondent: Arthur H. Bloomberg
Bar Number: 001829
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Arthur H. Bloomberg
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Docket No.: Bar-91-15
Issued by: Supreme Judicial Court
Date: December 20, 1991
Respondent: Arthur H. Bloomberg
Bar Number: 001829
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Arthur H. Bloomberg
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Docket No.: 91-S-21, 67, 92, 146, 196
Issued by: Grievance Commission
Date: October 18, 1991
Respondent: Arthur H. Bloomberg
Bar Number: 001829
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Robert A. Cohen
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Docket No.: BAR-91-19
Issued by: Supreme Judicial Court
Date: July 29, 1991
Respondent: Robert A. Cohen
Bar Number: 001122
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Gerald S. Cope
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Docket No.: BAR 91-4
Issued by: Supreme Judicial Court
Date: July 25, 1991
Respondent: Gerald S. Cope
Bar Number: 001801
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR-88-7
Issued by: Grievance Commission
Date: December 5, 1991
Respondent: William B. Cote
Bar Number: 002892
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Parker Denaco
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Docket No.: 89-K-10
Issued by: Grievance Commission
Date: January 3, 1991
Respondent: Parker Denaco
Bar Number: 001163
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Julio V. Desanctis
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Docket No.: 89-S200
Issued by: Grievance Commission
Date: November 5, 1991
Respondent: Julio V. Desanctis
Bar Number: 001751
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Peter C. Fessenden
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Docket No.: 90-K-177
Issued by: Grievance Commission
Date: June 4, 1991
Respondent: Peter C. Fessenden
Bar Number: 000684
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Dennis C. Hagemann
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Docket No.: BAR 91-9
Issued by: Supreme Judicial Court
Date: April 3, 1991
Respondent: Dennis C. Hagemann
Bar Number: 002839
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Joseph R. Hunt
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Docket No.: BAR-91-11
Issued by: Supreme Judicial Court
Date: July 30, 1991
Respondent: Joseph R. Hunt
Bar Number: 0002926
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Patrick E. Hunt
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Docket No.: 89-K-175
Issued by: Grievance Commission
Date: February 7, 1991
Respondent: Patrick E. Hunt
Bar Number: 002707
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. John S. Jenness, Jr.
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Docket No.: 90-K-68
Issued by: Grievance Commission
Date: June 5, 1991
Respondent: John S. Jenness, Jr.
Bar Number: 001205
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Philip K. Jordan
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Docket No.: 90-S-28
Issued by: Grievance Commission
Date: June 26, 1991
Respondent: Philip K. Jordan
Bar Number: 000979
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Richard Morton
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Docket No.: 90-K-172
Issued by: Grievance Commission
Date: October 22, 1991
Respondent: Richard Morton
Bar Number: 001648
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel J. Murphy
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Docket No.: BAR-88-4
Issued by: Supreme Judicial Court
Date: July 31, 1991
Respondent: Daniel J. Murphy
Bar Number: 001900
Order: Findings, Conclusions and Order
Disposition/Conduct:
Board of Overseers of the Bar v. Harvey J. Putterbaugh
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Docket No.: BAR-89-10
Issued by: Supreme Judicial Court
Date: August 1, 1991
Respondent: Harvey J. Putterbaugh
Bar Number: 002898
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Claudia Sharon
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Docket No.: 88-K-131
Issued by: Grievance Commission
Date: February 26, 1991
Respondent: Claudia Sharon
Bar Number: 003289
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Clarence H. Spurling
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Docket No.: BAR-90-14
Issued by: Supreme Judicial Court
Date: December 12, 1991
Respondent: Clarence H. Spurling
Bar Number: 007416
Order: Reinstatement
Disposition/Conduct:
Board of Overseers of the Bar v. Torrey A. Sylvester
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Docket No.: 89-S-204, 89-S-205
Issued by: Grievance Commission
Date: October 2, 1991
Respondent: Torrey A. Sylvester
Bar Number: 001296
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Richard D. Violette, Jr.
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Docket No.: 89-S-201
Issued by: Grievance Commission
Date: December 12, 1991
Respondent: Richard D. Violette, Jr.
Bar Number: 003042
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Frank B. Walker
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Docket No.: 90-K-187
Issued by: Grievance Commission
Date: December 16, 1991
Respondent: Frank B. Walker
Bar Number: 000058
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel G. Aiken
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Docket No.: SJC 53.16
Issued by: Supreme Judicial Court
Date: December 31, 1981
Respondent: Daniel G. Aiken
Bar Number: 002020
Order: Findings, Conclusions and Order
Disposition/Conduct:
Board of Overseers of the Bar v. Daniel G. Aiken
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Docket No.: SJC 53.16
Issued by: Supreme Judicial Court
Date: October 6, 1981
Respondent: Daniel G. Aiken
Bar Number: 002020
Order: Findings, Conclusions and Order
Disposition/Conduct:
Board of Overseers of the Bar v. Paul B. Fitzgerald
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Docket No.: SJC-53.2, SJC-54.1
Issued by: Supreme Judicial Court
Date: January 22, 1981
Respondent: Paul B. Fitzgerald
Bar Number: 002114
Order: Findings, Conclusions and Order
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Philip L. Ingeneri
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Docket No.: Law-81-510
Issued by: Supreme Judicial Court
Date: February 9, 1982
Respondent: Philip L. Ingeneri
Bar Number: 001443
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. Andrew J. Doukas
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Docket No.: Bar-10-13
Issued by: Supreme Judicial Court
Date: October 25, 2011
Respondent: Andrew J. Doukas
Bar Number: 002932
Order: Order and Decision
Disposition/Conduct:
ORDER
This matter came before the Court pursuant to M. Bar R. 7.2(b)(1) upon the filing of an Information by the Board of Overseers of the Bar. Bar Counsel J. Scott Davis, Esq. represented the Board and Andrew J. Doukas, Esq. represented himself at the November 16, 2010, hearing.
The court issued an order on December 2, 2010. The court held several telephone conferences pursuant to said order and no further conferences with the court are necessary pursuant to the December 2, 2010 order. Mr. Doukas has satisfied the order but paragraph 2(b) shall remain in effect unless a further hearing waives that requirement.
For the Court
Warren M. Silver, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. Warren M. Turner
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Docket No.: BAR-11-15
Issued by: Supreme Judicial Court
Date: October 24, 2011
Respondent: Warren M. Turner
Bar Number: 001623
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Motion for Appointment of Receiver M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Thomas G. Ainsworth, Esq. is appointed the Receiver of Attorney Warren M. Turner?s law practice. As soon as possible, Attorney Ainsworth shall:
Attorney Ainsworth shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at a designated rate. Attorney Turner shall be the first choice for source of payment to Attorney Ainsworth, although ultimately, the Court may determine that Attorney Ainsworth serves in a pro bono capacity. Otherwise, Attorney Ainsworth may be compensated from any other source ordered by the Court, including those matters in which Attorney Turner?s clients have outstanding obligations to him. Attorney Ainsworth has standing to pursue claims as Receiver for past due legal fees related to Attorney Turner?s practice.
Attorney Ainsworth shall act as Receiver until discharged by the Court in accordance with paragraph 3 of Rule: 7.3(f).
Attorney Ainsworth so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under this Rule. Furthermore, Attorney Ainsworth may be engaged by any former client of Attorney Turner, provided that he informs any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend Attorney Ainsworth?s employment by the client . Attorney Ainsworth is subject to all Bar Rules and the Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, the client?s retention of Attorney Ainsworth as successor counsel is not a per se conflict of interest solely by reason of Attorney Ainsworth?s appointment by this Order.
Attorney Ainsworth, his agents and employees shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, Attorney Ainsworth shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
For the Court
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Miklos M. Pongratz
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Docket No.: GCF 10-227
Issued by: Grievance Commission
Date: November 2, 2011
Respondent: Miklos M. Pongratz
Bar Number: 009563
Order: Dismissal
Disposition/Conduct: No misconduct.
Order of Dismissal
On October 17, 2011, pursuant to due notice, Panel C of the Grievance Commission conducted a disciplinary hearing at the Cumberland County Superior Courthouse, in accordance with Maine Bar Rule 7.1(e)(2) and open to the public, on a complaint concerning the Respondent, Miklos Pongratz, Esq. At the disciplinary hearing, the Board was represented by Bar Counsel J. Scott Davis, and Respondent was present and represented by Peter J. DeTroy, Esq.
The Panel Members were John Hutchins (lay member); Peter Fessenden, Esq. and Martha Gaythwaite, Esq. The parties stated that they had no objection to the composition of the Panel.
The Panel heard testimony from Attorney Pongratz; the complainant, Kimberly Nevers (f/k/a Johnson), Joseph Goodman, Esq. and Karen Greenleaf-Smith (Ms. Nevers? mother). Attorney Goodman and Ms.Smith were subpoenaed to appear. Board Exhibits 1-17 and Respondent's Exhibits 1-24 were admitted in evidence without objection.
Ms. Nevers?s complaint arises from Attorney Pongratz? representation of Ms. Nevers in a contested divorce proceeding from June of 2009 until March of 2010. The 74 paragraph Disciplinary Petition dated January 27, 2011 details various incidents allegedly arising during that representation including inappropriate physical contact and suggestive conduct, failure to provide Ms. Nevers with accurate and timely updates on her case, involving Ms. Nevers? mother in the divorce litigation without Ms. Nevers? consent, acting in an unprofessional manner towards the opposing side and his attorney, making misrepresentations to the Court and opposing counsel about Ms. Nevers?s position, and charging an unreasonable fee. At the hearing, Attorney Pongratz denied Ms. Nevers? allegations and contended that Ms. Nevers had no complaint about Attorney Pongratz?s legal services until he attempted to collect his fee. Attorney Pongratz further asserted that Ms. Nevers?s claims did not arise until after she had read Justice Levy?s Findings of Facts in another disciplinary proceeding which had resulted in Attorney Pongratz?s suspension from the practice of law. It is Attorney Pongratz?s belief that Ms. Nevers was attempting to use the threat of an ethics complaint to ?leverage? him into not pursuing his bill for legal services. Ms. Nevers testified that she has never read Justice Levy?s decision.
The Panel heard and considered all the evidence presented by the parties.1 The allegations against Attorney Pongratz are serious and raise significant concerns. However, the Panel?s decision must be based on a preponderance of the evidence that Attorney Pongratz violated one of the applicable disciplinary rules. After carefully weighing all the evidence, the Panel concludes that it does not support a finding of prohibited conduct by Attorney Pongratz.
Resolution of the allegations required the Panel to make a number of difficult determinations. Although the Panel finds that Ms. Nevers?s testimony was sincere, her memory is inconsistent with emails and other documents that were generated during the time the events were taking place. Her recollection was uncorroborated by the testimony of other witnesses with respect to certain key events.
At the time of the events, Ms. Nevers was challenged by financial and health issues. Given her situation, Attorney Pongratz should have provided better written communications to his client explaining the plan of action in the case and confirming that it was authorized. Nevertheless, in the face of insufficient evidence that his conduct breached his professional ethical obligations, the Panel dismisses the Petition.
For the Grievance Commission
Martha C. Gaythwaite, Esq., Chair
Footnotes
1 Some of the conduct at issue in this matter occurred prior to the abrogation of the former Maine Code of Professional Responsibility (former M. Bar R. 3), and the replacement of the Code by the Maine Rules of Professional Conduct, effective August 1, 2009. The Panel analyzes Respondent's conduct in this matter under the provisions of the now-abrogated Code of Professional Responsibility or the Maine Rules of Professional Conduct as appropriate.
Board of Overseers of the Bar v. James N. Papatones
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Docket No.: BAR-93-11
Issued by: Supreme Judicial Court
Date: May 18, 1994
Respondent: James N. Papatones
Bar Number: 001912
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Billie Louise Wolf
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Docket No.: BAR-84-42
Issued by: Supreme Judicial Court
Date: February 4, 1985
Respondent: Billie Louise Wolf
Bar Number: 000130
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E. Audet
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Docket No.: BAR-93-8; BAR-93-22
Issued by: Supreme Judicial Court
Date: May 23, 1994
Respondent: Thomas E. Audet
Bar Number: 002084
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Arron E. Budnitz
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Docket No.: Abr-95-12
Issued by: Supreme Judicial Court
Date: February 20, 1996
Respondent: Arron E. Budnitz
Bar Number: 003456
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Mark S. Freme
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Docket No.: BAR-93-7
Issued by: Supreme Judicial Court
Date: June 20, 1994
Respondent: Mark S. Freme
Bar Number: 002971
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Neil D. MacKerron
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Docket No.: BAR-90-9
Issued by: Supreme Judicial Court
Date: July 19, 1990
Respondent: Neil D. MacKerron
Bar Number: 001090
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Richard A. Petersen
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Docket No.: BAR-93-2
Issued by: Supreme Judicial Court
Date: December 13, 1994
Respondent: Richard A. Petersen
Bar Number: 001563
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Lawrence R. Schultz
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Docket No.: BAR-87-22
Issued by: Supreme Judicial Court
Date: November 12, 1987
Respondent: Lawrence R. Schultz
Bar Number: 000479
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Harry A. Tabenken
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Docket No.: BAR 82-10
Issued by: Supreme Judicial Court
Date: May 20, 1982
Respondent: Harry A. Tabenken
Bar Number: 001522
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. In Re Michael T. Phelan
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Docket No.: Bar-11-13
Issued by: Supreme Judicial Court
Date: December 1, 2011
Respondent: Michael T. Phelan
Bar Number: 003760
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Order
Upon the application of Michael T. Phelan for reinstatement to the bar of the State of Maine, and upon the unanimous vote of the Board of Overseers of the Bar supporting said application, the Petition is hereby granted.
Effective January 1, 2012, Michael T. Phelan is reinstated to the bar of the State of Maine with all the rights and responsibilities thereto.
FOR THE COURT
Andrew M. Mead, Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. David E. Warren; James Kilbreth, III; Eric D. Altholz; Mark K. Googins; Roger A. Clement, Jr.; Juliet T. Browne
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Docket No.: Bar-10-11
Issued by: Law Court
Date: December 8, 2011
Respondent: David E. Warren; James Kilbreth, III; Eric D. Altholz; Mark K. Googins; Roger A. Clement, Jr.; Juliet T. Browne
Bar Number: 002695; 002891; 007289; 002985; 007421; 008261
Order: Law Court: Affirmed in Part/Vacated in Part
Disposition/Conduct: Responsibility of a Partner or Supervising Lawyer
Panel: LEVY, MEAD, GORMAN, and JABAR, JJ.
Majority: LEVY, MEAD, and GORMAN
Dissent: Jabar, J.
[?1] This case arises from an investigation by the Board of Overseers of the Bar (the Board) into the actions of six Verrill Dana LLP attorneys?David E. Warren, James T. Kilbreth III, Eric D. Altholz, Mark K. Googins, Roger A. Clement Jr., and Juliet T. Browne?who were involved in the discovery and reporting of the misconduct of John Duncan, a former partner in the law firm. The Board, acting through Bar Counsel, appeals1 from a prehearing discovery order entered by a single justice of the Maine Supreme Judicial Court (Silver, J. ) granting the six attorneys? motion to quash a subpoena, and also appeals from a judgment entered by a single justice (Alexander, J. ) determining that none of the six attorneys violated the Maine Bar Rules (Tower 2008) in responding to Duncan?s misconduct.2 We affirm in part and vacate in part.
A. Factual Findings
[?2] John Duncan joined Verrill Dana in 1978 and was a partner practicing in the firm?s private clients group, with the principal responsibilities of administering trust and estate accounts and providing related legal services. In late 2006, one of the firm?s paralegals discovered a discrepancy in the account of one of Duncan?s clients. The check register that Duncan prepared for that client account reflected that a payment had been made to Verrill Dana, but the check, as shown on the account?s bank statement, had been made payable to Duncan. The paralegal brought the matter to the attention of Duncan?s secretary. By comparing the bank statements to the check registers for the client?s account, Duncan?s secretary identified a total of fourteen such discrepancies dating back to 2003. In June 2007, Duncan?s secretary ultimately confided in another attorney at the firm, who promptly notified Warren, the firm?s managing partner, of the concerns and delivered the supporting documentation to him.
[?3] Warren immediately obtained copies of the checks made payable to Duncan and the 2006 spreadsheet for the account in question. These documents revealed to Warren that the checks had not been signed over to a firm account. Although Warren was aware that, in some instances, an attorney might have authority to write checks to himself from a client?s account, he did not believe that Duncan had any such authority.
[?4] On June 13 or 14, 2007, Warren advised Kilbreth, the chair of the firm?s executive committee, that Duncan appeared to be writing checks from a client account to himself rather than to the firm. Two weeks later, Warren confronted Duncan; Duncan explained that the checks represented attorney fees that he had earned for work on the account, but which should have been paid over to the firm in accordance with the partnership agreement. Duncan also stated that that client account was the only one from which he had written checks to himself. Duncan offered to write the firm a check to cover the funds and to resign from the firm. Warren deferred action on Duncan?s offer to resign until speaking with Kilbreth and the executive committee, but did ask Duncan to pay the partnership $77,500 representing the fees that he had failed to turn over to the firm. Duncan repaid the money in full. [?5] At a July 9, 2007, executive committee meeting, Warren told committee members Altholz, Googins, Clement, and Browne about Duncan?s actions and his offer to resign. Ultimately, the committee agreed to decline Duncan?s offer to resign. The single justice did not specifically find, but the record is undisputed, that there was no discussion during this meeting about making a report to the Board of Overseers of the Bar. The executive committee also did not discuss bringing Duncan?s conduct to the attention of Gene Libby, the firm?s in house general counsel. The committee concluded that Warren should notify Kurt Klebe, the head of the private clients group, to allow him to implement practices to prevent similar events from occurring in the future.
[?6] Throughout the summer of 2007, Warren delayed notifying Klebe of Duncan?s actions because he thought attention from Klebe might drive an already fragile Duncan ?over the edge.? Although the executive committee members repeatedly asked Warren if Klebe had been notified, they acquiesced in his decision to temporarily defer action. [?7] On October 2, 2007, Warren met with Klebe to inform him of Duncan?s misconduct. After the meeting, Klebe began an investigation and quickly discovered another account from which Duncan had written a check to himself, ostensibly for fees, which had not been turned over to the firm. As he reviewed more of Duncan?s client accounts during the remainder of October, Klebe uncovered similar problems.
[?8] On October 10, 2007, Verrill Dana received a ?preservation? letter advising them that Duncan?s secretary was pursuing an employment lawsuit against the firm and asking that certain evidence be preserved. Only then did Libby, the firm?s in-house general counsel, learn that Duncan had been mishandling funds. Libby undertook an investigation and retained outside counsel to assist him. In re Motion to Quash Bar Counsel Subpoena, 2009 ME 104, ? 3, 982 A.2d 330. In the course of this investigation, Libby gathered emails and other documents, and wrote memos to others and to the file discussing both the evidence he had gathered and his conclusions about the evidence. Id.
[?9] On October 27, 2007, after learning that Duncan?s misconduct involved additional client accounts, the executive committee voted to terminate Duncan effective December 31, 2007. The following week, the results of an independent audit ordered by the firm revealed that Duncan had also billed clients for work he had not performed and taken money from those clients? accounts to ?pay? himself. At that point, the firm immediately terminated Duncan and notified the Board of Overseers of the Bar, the United States Attorney, and the Cumberland County District Attorney of Duncan?s thefts and other improprieties.
B. Discovery Dispute
[?10] Libby resigned from Verrill Dana in November of 2007. Id. Following his resignation, Libby informed Bar Counsel that he believed he had unprivileged knowledge of violations of the Maine Bar Rules that had occurred at Verrill Dana. Bar Counsel subpoenaed the information and documents that formed the basis of Libby?s belief, and Verrill Dana moved to quash the subpoena, asserting that the information was protected by the lawyer-client privilege and the work product doctrine. Id. ? 5. Bar Counsel argued that the crime-fraud exception removed any such privilege. Id.; see M.R. Evid. 502(d)(1).
[?11] A single justice of the Maine Supreme Judicial Court (Silver, J. ) held a hearing on the motion to quash, reviewed the disputed documents in camera, and issued an order in April of 2009 denying Verrill Dana?s motion. Id. The single justice found that the crime-fraud exception to the lawyer-client privilege applied to all of the disputed documents. Id.
[?12] On Verrill Dana?s appeal, we first determined that the appeal should not be dismissed as interlocutory. Id. ?? 6-12. Next, we set forth the test to be used in determining when the crime-fraud exception could pierce a claim of lawyer-client privilege. Id. ?? 13-19. Finally, we vacated the single justice?s order and remanded the matter because we could not determine whether the single justice had properly applied the crime-fraud exception. Id. ? 22.
[?13] On remand, the single justice granted Verrill Dana?s motion to quash. The single justice found that Libby and the firm had a lawyer-client relationship and that the firm had ?met the requirements of M.R. Evid. 502(a)-(c)? for asserting the lawyer client privilege. The single justice also found that ?even if the firm was not honest and forthcoming about the Duncan matter from June to October, any possible misconduct in failing to come forward ended? when the firm involved Libby. Because any misconduct constituted past conduct, rather than ongoing conduct, the court determined that the crime-fraud exception did not apply.
C. Alleged Bar Rule Violations
[?14] In September 2010, Bar Counsel filed an information alleging that Warren and the five members of the executive committee had violated M. Bar R. 3.1(a), 3.2(e)(1), (f)(2), (3), (4), 3.6(i), 3.13(a), (b) (Tower 2008) by failing to investigate, discover, and report Duncan?s misconduct, and failing to mitigate losses to clients and the firm resulting from Duncan?s misconduct. Following a three-day hearing, the single justice (Alexander, J.) found that the Board had failed to prove, by a preponderance of the evidence, that the six attorneys committed the violations charged in the information. Regarding the alleged violation of M. Bar R. 3.2(e)(1), the single justice concluded:
Based on what the respondents knew or believed at the time, on facts now known to be incomplete, the respondents did not believe that the perceived-to-be aberrational misapplication of firm funds from one account required a report to the Board or the prosecutor as an action that, in light of Duncan?s thirty-year history, raised ?a substantial question as to another lawyer?s honesty, trustworthiness, or fitness as a lawyer.? The [c]ourt also notes that ultimately, Duncan?s actions were reported to the Board and the prosecutor. The only real issue is whether, in light of all the circumstances discussed above, the Board has proved that the four-month delay from discovery to first report was unreasonable. The delay is not proved to be unreasonable on the facts of this case.
[?15] Regarding Rule 3.13(a), the single justice found that the six attorneys made reasonable efforts to assure that lawyers in the firm would adhere to the Code of Professional Responsibility (the Code). The court also found that the Board failed to prove that any of the six attorneys (1) had direct supervision over any lawyer whose conduct was at issue; (2) ordered or ratified the conduct at issue; or (3) knew of the conduct in time to avoid or mitigate its consequences, but failed to take reasonable, remedial action.
[?16] Bar Counsel appeals from the order granting Verrill Dana?s motion to quash and from the judgment concluding that the six attorneys did not violate M. Bar R. 3.2(e)(1) or M. Bar R. 3.13(a).3
A. Order on the Motion to Quash
[?17] This is the second time that an order on Verrill Dana?s motion to quash Bar Counsel?s subpoena has been appealed. The issues raised by the parties in this appeal can be readily resolved by our analysis in In re Motion to Quash Bar Counsel Subpoena, 2009 ME 104, 982 A.2d 330.
[?18] Verrill Dana contends that because the grant of the motion to quash was an appealable final order, Bar Counsel?s appeal should be dismissed as untimely. Although Verrill Dana advances several rationales for treating the single justice?s (Silver, J. ) order granting the motion to quash as a final judgment, we find none of them persuasive in light of our precedent.
[?19] The general rule is that discovery orders are deemed interlocutory and therefore are reviewable only on appeal from the final judgment. In re Motion to Quash, 2009 ME 104, ? 10, 982 A.2d 330; Estate of Cox v. E. Me. Med. Ctr., 2007 ME 15, ? 7, 915 A.2d 418; Hanley v. Evans, 443 A.2d 65, 66 (Me. 1982). We recognized as much in In re Motion to Quash, but reviewed the court?s interlocutory order denying the motion pursuant to the death knell exception to the final judgment rule because the failure to conduct an immediate review would have rendered impossible any review of Verrill Dana?s claim. 2009 ME 104, ?? 9-11, 982 A.2d 330. The order from which the appeal was taken in this case was the one that granted Verrill Dana?s motion to quash. This order was an interlocutory discovery order, and Bar Counsel acted appropriately by delaying the appeal until the entry of a final judgment.
[?20] Bar Counsel challenges the single justice?s grant of the motion to quash on the grounds that it (1) failed to evaluate whether each document listed on Verrill Dana?s privilege log was a confidential communication protected by the lawyer-client privilege, and (2) incorrectly applied the crime-fraud exception. Bar Counsel?s first argument raises an issue that is not properly before us on appeal. We reject the second contention on the merits.
[?21] In In re Motion to Quash, Verrill Dana appealed from the single justice?s determination that the crime-fraud exception defeated the firm?s lawyer client privilege. 2009 ME 104, ? 1, 982 A.2d 330. Neither party raised any challenge in that appeal to the single justice?s determination that the lawyer client privilege applied to the disputed documents, and therefore we did not address the issue. Rather, after setting forth the test for determining the applicability of the crime-fraud exception, we remanded the case for the single justice to ?consider for each of the firm?s clients at issue whether documents concerning transactions with that client meet the test for application of the exception, or whether some or all of them remain privileged.? Id. ? 22.
[?22] On remand, the single justice revisited the existence of the lawyer client privilege, and again found that the privilege existed between Libby and the firm. Because the existence of the lawyer-client privilege was fully resolved in the single justice?s first order, and not challenged by either party during the first appeal, the parties had no right to ask the single justice to revisit that issue. See Bean v. Cummings, 2008 ME 18, ? 18, 939 A.2d 676 (stating that the scope of a mandate cannot be ?enlarged, limited or modified? following the appeal). Accordingly, whether the lawyer-client privilege protected each document listed on Verrill Dana?s privilege log is not properly before us on appeal, notwithstanding the single justice?s reconsideration of that issue on remand.
[?23] Next, Bar Counsel asserts that the single justice did not properly apply the crime-fraud exception. To evaluate whether the crime-fraud exception can pierce a client?s claim of lawyer-client privilege, we adopted the following test: ?(1) [whether] the client was engaged in (or was planning) criminal or fraudulent activity when the attorney-client communications took place; and (2) [whether] the communications were intended by the client to facilitate or conceal the criminal or fraudulent activity.? In re Motion to Quash, 2009 ME 104, ? 18, 982 A.2d 330 (quotation marks omitted). We review a court?s determination of whether the crime fraud exception applies to disputed documents for an abuse of discretion. See In re Grand Jury Proceedings, 183 F.3d 71, 78 (1st Cir. 1999).
[?24] Contrary to Bar Counsel?s contention, the single justice did not commit an abuse of discretion by misunderstanding or misapplying the crime-fraud exception. Consistent with our discussion in In re Motion to Quash, the single justice determined that the firm was not planning or engaged in any fraudulent activity at the time it enlisted Libby?s help in the matter, and that the firm did not intend to facilitate or conceal any fraudulent or criminal conduct in the communications with Libby. We therefore affirm the single justice?s order granting Verrill Dana?s motion to quash.
B. Judgment on the Alleged Violations of Maine Bar Rule 3
[?25] Bar Counsel argues that the single justice (Alexander, J. ) erred in determining that Warren and the executive committee had not violated the Code. Bar Counsel asserts that the six attorneys violated M. Bar R. 3.2(e)(1) by not immediately reporting Duncan?s conduct to the Board, and violated M. Bar R. 3.13(a) by failing to have sufficient policies and procedures in place to prevent and respond to such conduct. We interpret the meaning of the rules de novo as a matter of law, Cayer v. Town of Madawaska, 2009 ME 122, ? 7, 984 A.2d 207, and review for clear error the findings of fact that determine the applicability of the rule, Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268, 1270 (Me. 1993).
[?26] Maine Bar Rule 3.2(e)(1) as it then existed prescribed the mandatory circumstances in which a lawyer is required to report the misconduct of another lawyer:
A lawyer possessing unprivileged knowledge of a violation of the Maine Bar Rules that raises a substantial question as to another lawyer?s honesty, trustworthiness, or fitness as a lawyer in other respects shall report such knowledge to the appropriate disciplinary or investigative authority.
Actual knowledge is required, but may be inferred from the circumstances when it is apparent that the lawyer must have known of the misconduct. 2 Geoffrey C. Hazard, Jr., W. William Hodes, & Peter R. Jarvis, The Law of Lawyering ? 64.4 (3d ed. Supp. 2009). When a lawyer has actual knowledge, that lawyer must determine two things in deciding whether she has an obligation to report the misconduct: (1) whether the other lawyer?s conduct relates to his honesty, trustworthiness, or fitness to practice law, and (2) whether the conduct is sufficiently serious to raise a ?substantial question? about at least one of these three traits. See M. Bar R. 3.2(e)(1); Me. Prof. Ethics Comm?n, Op. No. 100, 1 Maine Manual on Professional Responsibility 0-349 to 0 351 (Oct. 4, 1989). Whether an attorney has a ?substantial question? about a colleague?s honesty, trustworthiness, or fitness to practice law is a subjective test that requires a determination of what the attorney?s actual belief was at the time. M. Bar R. 3 Reporter?s Notes, 1 Maine Manual on Professional Responsibility 3-35 (Supp. 2007); 2 Geoffrey C Hazard, Jr. et al., The Law of Lawyering ? 64.4.
[?27] The parties do not dispute that by July of 2007, these six attorneys had actual knowledge that Duncan had, on fourteen occasions over a period of three years, deposited client funds totaling $77,500 into his personal bank account. The single justice applied the required subjective standard, and found that the six attorneys believed Duncan?s conduct was ?an aberrant event by an otherwise honest and trustworthy individual that had not spread wider than this single account and would not be repeated.? The single justice also found that this understanding of Duncan?s behavior by the six attorneys persisted throughout the summer of 2007, and continued until October of 2007, when they realized that Duncan?s assertions that he had taken funds from only one client account were untrue. The single justice concluded that the Board failed to prove, by a preponderance of evidence, that the six attorneys violated Rule 3.2(e)(1), based on its determination that the six attorneys ?did not believe that the perceived to-be aberrational misapplication of firm funds from one account . . . [was] an action that, in light of Duncan?s thirty-year history, ?rais[ed] a substantial question as to another lawyer?s honesty, trustworthiness, or fitness as a lawyer.?? (Quoting M. Bar R. 3.2(e)(1).)
[?28] We are bound to uphold the single justice?s finding that the six attorneys did not subjectively question Duncan?s honesty, trustworthiness, or fitness to practice law if there is any competent evidence in the record, including any reasonable inferences, to support that finding. See Brown, 623 A.2d at 1270.
[?29] For many lawyers, the initial report of Duncan?s actions certainly would have raised a substantial question as to his honesty, trustworthiness, or fitness as a lawyer in other respects.4 Nevertheless, each of the six attorneys testified that it never even occurred to him or her that Duncan?s mishandling of funds gave rise to an obligation to report Duncan pursuant to Rule 3.2(e). Each flatly admitted that despite hearing of Duncan?s conduct, no one discussed whether they should review the Bar Rules or whether they should consult the firm?s counsel.
[?30] This testimony, which the single justice found credible, supports the single justice?s finding that the six attorneys did not subjectively believe that Duncan?s acts raised a substantial question of his honesty, trustworthiness, or fitness as a lawyer. Given this testimony, the wholly subjective nature of the test to be applied, and the fact that the six attorneys reported Duncan as soon as they realized their trust was misplaced, we must affirm the single justice?s determination that Bar Counsel failed to prove that the six attorneys violated M. Bar Rule 3.2(e).
[?31] Although we affirm based on the subjective nature of the inquiry and the deferential standard of review, we comment on the parties? treatment of the matter. The operative inquiry is whether the six attorneys had knowledge of conduct by Duncan that raised substantial questions of Duncan?s ?honesty, trustworthiness, or fitness as a lawyer.? M. Bar. R. 3.2(e)(1). All parties have attempted to obscure this narrow question with immaterial considerations. Bar Counsel has undertaken lengthy and unrelenting attempts to convince the single justice and this Court that Duncan?s actions were ?theft.? Likewise, the six attorneys attempt to distinguish between misconduct involving ?firm? funds in violation of the partnership agreement?which they believed, for a time, was the extent of Duncan?s misconduct?and misconduct involving ?client? funds?which they did not understand Duncan to have committed until later in 2007.
[?32] These contentions demonstrate a misunderstanding of the proceedings underway. Rule 3.2(e)(1) requires the disclosure of misconduct by a fellow attorney that raises a ?substantial question as to [his] honesty, trustworthiness, or fitness as a lawyer? without regard to whether the alleged victim is a client or colleague. That Duncan engaged in dishonest, fraudulent, deceitful, or misrepresentative conduct pursuant to M. Bar R. 3.2(f)(3) by, at least, diverting firm funds to himself in knowing violation of the partnership agreement could raise a ?substantial question as to [his] honesty, trustworthiness, or fitness as a lawyer? pursuant to M. Bar R. 3.2(e)(1) even if no client funds were ever implicated. The plain language of Rule 3.2(e)(1) makes no distinction in the duty to report misconduct based on the identity of the alleged victim. See M. Bar R. 2(a) (Tower 2008) (stating that the rules are intended to apply to an attorney?s relationship with ?clients, the general public, other members of the legal profession, the courts and other agencies of this State?). Furthermore, whether Duncan?s partners thought he had committed a theft pursuant to criminal statutes is not, and was never, the issue in these bar proceedings. See 7 Am Jur. 2d Attorneys at Law ? 44 (2007) (?To warrant disciplinary action it is not necessary that the misconduct of an attorney is such as will render the attorney liable to criminal prosecution . . . .?).
[?33] Maine Bar Rule 3.13(a) addressed the responsibilities of partners and lawyers for compliance with the Code.5 Bar Counsel asserts that the attorneys violated (1) M. Bar R. 3.13(a)(1) because, at the time of Duncan?s misconduct, there were no procedures in place to ensure compliance with ethics rules, and (2) M. Bar R. 3.13(a)(3)(ii) because they failed to take remedial measures to avoid or mitigate the consequences of Duncan?s behavior.
[?34] Rule 3.13(a)(1) requires law firm partners to make efforts to enact procedures that will deter unethical behavior. These measures may include professional ethics education, the development of policies or procedures to address ethics concerns that arise, and the creation of an ?ethical atmosphere.? M. Bar R. 3.13 Advisory Committee Note to 1997 amend., 1 Maine Manual on Professional Responsibility 3-105 (Supp. 2007). Other policies and procedures that a firm should have in place are those designed to avoid conflicts of interest, ensure deadlines are met, account for client funds, and provide supervision and support to inexperienced lawyers. Restatement (Third) of Law Governing Lawyers ? 11 cmt. g (2000); accord M.R. Prof. Conduct 5.1(a) & cmt. (2) (providing the current iteration of M. Bar R. 3.13(a)(1)). Appropriate supervision may vary depending upon the size and nature of the law firm, but cannot be expected to guarantee against all violations of the Code. See 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering ? 42.4 (3d ed. Supp. 2010). Compliance with this rule, unlike with Rule 3.2(e)(1), is determined based on an objective standard of reasonableness. M. Bar R. 3.13(a)(1).
[?35] We recognize that these six attorneys, comprising Verrill Dana?s executive committee, were caught completely ?off guard? by Duncan?s conduct. We also recognize that they dealt with Duncan with compassion, and there is no suggestion of bad faith in their failure to refer his conduct to Bar Counsel or to individuals in the firm who were more capable of assessing the need for action, such as the firm?s own counsel. However, we cannot ignore that, when faced with the significant malfeasance of a self-destructing partner, none of the attorneys even recognized that the Maine Code of Professional Responsibility required them to contemplate reporting that partner?s conduct and subsequent breakdown. Notwithstanding the single justice?s factual findings, when a firm?s practices and policies do not require the firm?s leadership to at least consider whether it has an ethical obligation to report a colleague in the circumstances presented by this case, we are compelled to find, as a matter of law, that the firm failed to have in effect ?measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.?
[?36] In addition, although we generally agree with the single justice?s legal conclusion that ?[a]mong experienced lawyers in a firm, informal supervision and periodic review? are sufficient to meet the ethical requirements of Rule 3.13(a)(1), see Attorney Grievance Comm?n of Md. v. Kimmell, 955 A.2d 269, 285-86 (Md. 2008), that is not the case with respect to any lawyer who has recently been found to have acted in a substantially ?aberrant? fashion, and whom his partners believe to be suicidal and at risk of being pushed ?over the edge? if the partner responsible for the lawyer?s day-to-day supervision is so informed. The obligations under Rule 3.13(a)(1) vary not only depending on whether an attorney is experienced or inexperienced, but also on whether the attorney is understood to be suffering from a serious emotional impairment. As the single justice found, Warren permitted Duncan to continue to practice law for more than three months without putting any additional measures into effect to ensure Duncan?s ethical performance. This response, which was acceded to by the full executive committee, did not, as a matter of law, satisfy Rule 3.13(a)(1)?s requirement of ?reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.? Id.
[?37] Accordingly, we conclude that the six attorneys, as the partners in the firm who were acting as the firm?s executive committee, and the only lawyers within the firm who knew of Duncan?s actions, violated M. Bar R. 3.13(a)(1).
[?38] Finally, pursuant to subsection Rule 3.13(a)(3)(ii), partners and supervising attorneys have a duty to prevent or rectify the harm actually caused by a violation of the Bar Rules if any of those attorneys learns of the harm at a point when there is still an opportunity to take corrective action. M. Bar R. 3.13(a)(3)(ii); see 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering ? 42.6 (3d ed. Supp. 2010). The single justice found, and the record supports, that after the attorneys discovered Duncan?s misconduct in June of 2007, there were no consequences from the delay in reporting that could have been avoided or mitigated. We do not disturb that portion of the single justice?s decision.
The entry is:
Order granting the motion to quash the subpoena is affirmed. Judgment finding no violation of the Maine Bar Rules is vacated and remanded for entry of a judgment consistent with this opinion and an appropriate sanction.
JABAR, J., concurring in part and dissenting in part.
[?39] I concur with the Court?s decision affirming the single justice?s decision granting the motion to quash, but I dissent from the Court?s decision vacating that portion of the single justice?s judgment determining that there was no violation of the Maine Bar Rules. While I agree with the Court?s conclusion that there is sufficient evidence to support the single justice?s conclusion that Bar Counsel failed to prove that the six attorneys violated Maine Bar Rule 3.2(e), I respectfully dissent from the Court?s determination as a matter of law that the six attorneys violated Maine Bar Rule 3.13(a)(1).
[?40] The single justice?s factual findings must be upheld unless they are clearly erroneous. Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268, 1270 (Me. 1993). If there is competent evidence in the record to support the single justice?s factual findings, then we should not be substituting our judgment for the judgment of the fact-finder. Id.
[?41] Maine Bar Rule 3.13(a)(1) (Tower 2007) provides, ?A partner in a law firm shall make reasonable efforts to assure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.? There is substantial evidence in the record supporting the single justice?s conclusion that Bar Counsel failed to prove that the six attorneys, as members of the firm?s Executive Committee, did not have measures in place to reasonably assure that the firm?s attorneys would conform to the Code in conducting their professional affairs.
[?42] In order to refute the alleged M. Bar R. 3.13(a) violations filed against them, the six attorneys presented the expert testimony of Brian Dench, a Maine attorney, who had extensive experience both administering and interpreting the Maine Bar Rules. Dench served on the Grievance Commission from 1979, when it was first constituted, through 1990. Dench also served as a member of the Professional Ethics Commission, which was established by this Court to consider requests for ethics advisory opinions, from 1981 to 1988. He served on the Advisory Committee on the Code of Professional Responsibility, and as part of his responsibility in that capacity, worked to review amendments to the Maine Bar Rules. In addition to being the ?go to? authority for ethical questions within his own firm, Dench over the years authored Continuing Legal Education materials for various seminars concerning legal ethics.
[?43] Dench offered his opinion not only on the issue of whether the six attorneys had violated M. Bar R. 3.2(e), but also on the issue of the firm?s (and the six attorneys?) compliance with M. Bar R. 3.13(a)(1). Dench testified that his own firm had practices and policies in place that complied with M. Bar R. 3.13(a)(1), and upon reviewing the practice and policies in place at Verrill Dana, he found them to be no different than what was in place at his firm and in other law firms around the state.
[?44] The single justice also heard a great deal of testimony regarding the practices and policies in place at the firm. Bar Counsel neither presented any experts to controvert Dench?s opinion, nor presented any other evidence establishing that the six attorneys failed to have in place policies and measures to reasonably assure that all attorneys employed by the firm complied with the Code according to the letter of M. Bar R. 3.13(a)(1). Instead, Bar Counsel relied upon inconsistencies within the testimony of the witnesses presented to establish that the named defendants did not have proper policies and procedures in place. Since the determination of whether the six attorneys, as members of the firm?s Executive Committee, had in place measures giving reasonable assurance of compliance with the Code is a factual issue, it is up to the fact-finder, the single justice, to reconcile the inconsistent and conflicting testimony in arriving at its findings and conclusions. See Maine Shipyard & Marine Ry. v. Lilley, 2000 ME 9, ? 18, 743 A.2d 1264. Furthermore, because Bar Counsel did not file a motion for additional findings of fact pursuant to M.R. Civ. P. 52, ?we infer any findings necessary to support the result that the court reached, as long as those findings are supported by the record.? Desmond v. Desmond, 2011 ME 57, ? 5, 17 A.3d 1234. I do not believe that we can find as a matter of law that the measures the firm had in place at the time, and the same measures the six attorneys employed in evaluating the misconduct that occurred here, violated M. Bar R. 3.13(a)(1).
[?45] Because there was sufficient, competent evidence supporting the single justice?s conclusion that Bar Counsel had failed to prove a violation of M. Bar R. 3.13(a)(1), I would affirm the judgment that the six attorneys did not violate any of the conduct provisions specified in Maine Bar Rule 3.
On the briefs:
J. Scott Davis, Bar Counsel, Board of Overseers of the Bar, Augusta, and Gisele M. Nadeau, Esq., Portland, for appellant Board of Overseers of the Bar
Peter L. Murray, Esq., Murray, Plumb & Murray, Portland, for appellee David E. Warren
Melissa A. Hewey, Esq., Drummond Woodsum, Portland, for appellee James T. Kilbreth
Peter J. Rubin, Esq., Bernstein Shur, Portland, for appellees and cross-appellants Eric D. Altholz, Mark K. Googins, Roger A. Clement, Jr., and Juliet T. Browne
William J. Kayatta, Jr., Esq., Catherine R. Connors, Esq., and Benjamin W. Jenkins, Esq., Pierce Atwood, LLP, Portland, for appellee Verrill Dana LLP
At oral argument:
J. Scott Davis, Esq., for appellant Board of Overseers of the Bar
Peter J. Rubin, Esq., for appellees David E. Warren, James T. Kilbreth, Eric D. Altholz, Mark K. Googins, Roger A. Clement, Jr., and Juliet T. Browne
FOOTNOTES
1Altholz, Googins, Clement, and Browne cross-appeal, asserting that the single justice (Alexander, J.) erred in denying their motion for judgment as a matter of law on the basis that the Board?s pleading documents failed to allege violations of M. Bar R. 3.2(e)(1), 3.13(a) (Tower 2008). We do not find this argument to be persuasive and do not address it further. See Bd. of Overseers of the Bar v. Rodway, 461 A.2d 1062, 1064 (Me. 1983).
2The Code of Professional Responsibility in effect in 2007, M. Bar R. 3 (Tower 2008), has since been replaced by the Maine Rules of Professional Conduct, but the applicable standards are the same. Compare M. Bar R. 3.2(e)(1) (Tower 2008), with M.R. Prof. Conduct 8.3(a).
3Bar Counsel abandoned its claim that the six attorneys violated M. Bar R. 3.6(i). Bar Counsel also does not appeal from the single justice?s determination that M. Bar R. 3.1(a) and M. Bar R. 3.2(f) were not violated, so we do not address these rules.
4Rule 3.2(e)(1) does not impose an obligation on, or allow, attorneys to sit in judgment of each other. Thus, an ?absolute certainty of ethical misconduct is not required before the reporting requirement is triggered.? In re Riehlmann Att?y Disciplinary Proc., 891 So. 2d 1239, 1247 (La. 2005); see also Ronald D. Rotunda, The Lawyer?s Duty to Report Another Lawyer?s Unethical Violations in the Wake of Himmel, 1988 U. Ill. L. Rev. 977, 985 (1988) (?[T]he reporting rule does not require that the quantum of evidence of which the lawyer is aware be beyond dispute . . . It does not require ?certainty.??). An attorney need not investigate the conduct in question, or make any decision that another attorney has in fact violated the Code. In re Riehlmann, 891 So. 2d at 1247. Rather, section 3.2(e)(1) creates a duty to report an identified problem to an authority with the expertise to investigate the issue and to handle it appropriately. See id.
5Maine Bar Rule 3.13(a) provided:
(a) Responsibilities of a Partner or Supervisory Lawyer.
(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility.
(2) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure the other lawyer conforms to the Code of Professional Responsibility.
(3) A lawyer shall be responsible for another lawyer?s violation of the Code of Professional Responsibility if:
(i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(ii) the lawyer is a partner in the law firm, in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Bar Counsel does not challenge that portion of the single justice?s judgment finding no violation of M. Bar R. 3.13(a)(2) or M. Bar R. 3.13(a)(3)(i), and we do not address them further.
Board of Overseers of the Bar v. Paul L. Letourneau
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Docket No.: BAR-09-11
Issued by: Supreme Judicial Court
Date: December 16, 2011
Respondent: Paul L. Letourneau
Bar Number: 009544
Order: Order and Decision
Disposition/Conduct:
Order
On September 20, 2011 the Board of Overseers of the Bar (the Board) commenced the above attorney disciplinary action by filing a Stipulated Information. In a previous, related Order (March 25, 2010), this Court disciplined Defendant Attorney Paul L. Letourneau and placed specific conditions upon his continued practice of law in Maine. Following a November 2011 status conference, the parties informed the Court that they had reached an agreement resolving the most recent grievance complaint filed against Attorney Letourneau.
On December 16, 2011 the Court conducted an uncontested hearing in this matter. Present were Attorney Letourneau, represented by Attorney Charles W. Smith, and Assistant Bar Counsel Aria Eee. Marcus Crowell, a former client of Letourneau who filed the complaint that resulted in this attorney disciplinary action, was notified of the hearing, but did not attend.
Letourneau was admitted to the Maine bar in December 2003. Since his admission, he has worked primarily as a solo practitioner with a concentration in criminal defense and family law. In the course of this and the 2009/2010 proceeding it became apparent to the Court that Letourneau had been unsuccessful in properly managing his busy law office. In the September 2009 Decision and Order, this Court directed that Letourneau restrict his practice solely to criminal cases and submit to monitoring by another attorney. That monitoring occurred from September 2009 until March 2011. Additionally, Letourneau has participated in the MAP program and, although Letourneau's problems were not caused or exacerbated by any mental illness or addiction, he has benefitted greatly from the MAP director's mentorship and direction concerning the management of a law practice.
In April 2011, Crowell filed a complaint with the Board alleging that Letourneau failed to properly advise him during plea negotiations and thereafter failed to keep Crowell informed about the case. Crowell alleges that he relied on Letourneau to advise and inform him during a 2008-2009 criminal case and that Letourneau failed to do so properly. Although Crowell's complaint was filed in 2011, the complained about conduct occurred in 2008 and 2009. Thus, these events occurred during the same time period addressed in this Court's March 2010 Order.
Letourneau denies that he rendered bad advice to Crowell, but he does acknowledge that he failed to exercise proper supervision and control over his legal assistant, a man whom Crowell believed was the second attorney in the law office. Letourneau's failure to supervise his former legal assistant exacerbated problems related to Letourneau's client communications, caused Letourneau to neglect legal matters, and led to the mismanagement of his law practice. Letourneau did finally terminate that legal assistant's further access to and involvement with his firm.
Based upon Crowell's complaint and the stipulations reached for this new proceeding, the Court must again find that Letourneau engaged in violations of then applicable Maine Bar Rules 3.6(a) and 3.13(c).
In its March 2010 order, this Court sanctioned Letourneau with a six month suspended suspension. No complaints concerning new misconduct have been filed since that order. Because Letourneau's misconduct concerning Crowell occurred in 2008-2009, and because the misconduct stemmed from actions that have already been sanctioned, the Court concludes that no further suspension of Letourneau is warranted at this time. Therefore, the Court simply extends Letourneau's obligation to continue his association with MAP and directs Letourneau to refrain from further misconduct. If Letourneau abides by those conditions for the next six months, the Court will not issue any additional sanction.
Finally, for the two years following the date of this Order, Bar Counsel may elect to file a disciplinary information directly with the Court, without any Grievance Commission review or hearing, concerning any newly filed complaints alleging professional misconduct by Letourneau.
Accordingly, it is hereby ORDERED and ADJUDGED that Attorney Paul L. Letourneau is to remain subject to MAP's supervision until June 17, 2012. To that end, Letourneau shall remain in contact with MAP Director Nugent to determine which MAP services he must undertake in order to correctly manage his law practice. If requested to do so, Letourneau shall enter into or extend a contract for MAP services and, if recommended by Director Nugent, he shall undergo an additional period of attorney monitoring. Likewise, if Director Nugent advises Letourneau to once again restrict his practice areas, then Letourneau shall adhere to that advice, and Bar Counsel and the Court shall each be notified by Letourneau of the same.
A failure to abide by any of these conditions may result in a finding of contempt by the Court and further post-judgment proceedings.
FOR THE COURT
Ellen Gorman, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. Michael S. Haenn, Esq.
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Docket No.: GCF No. 09-380
Issued by: Grievance Commission
Date: December 29, 2011
Respondent: Michael S. Haenn, Esq.
Bar Number: 002051
Order: Reprimand
Disposition/Conduct: Prejudicial to the Administration of Justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On December 29, 2011, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Michael S. Haenn, Esq. (Haenn) This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 19, 2010.
At the hearing, Attorney Haenn appeared pro se and the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Complainant Robert M.A. Nadeau, Esq. (Nadeau) was also present and addressed the Panel. Prior to the disciplinary proceeding, the parties had submitted, and Nadeau had been provided with a copy of a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Michael S. Haenn, Esq. (Haenn) of Bangor, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Haenn was admitted to the Maine Bar in 1979 and is currently a sole practioner.
On or about October 5, 2007, Haenn filed a suit to collect on a defaulted loan that Attorney Robert M. A. Nadeau?s law firm, Nadeau & Associates (N&A), had with Ocean National Bank (ONB). In that matter, which was docketed as CV-07-156 (CV-07-156) at the York District Court, Haenn asserted that two N&A trust accounts were subject to a security agreement N&A had executed to secure the loan. Account #33004419 (IOLTA) had been opened at ONB as a ?Maine Bar Foundation IOLTA,? and account #33023022 (RE Trust) had been opened as a ?Real Estate Account.?
On or about February 7, 2008, Nadeau filed a Chapter 7 Bankruptcy on behalf of N&A. The trust accounts were listed on Schedule B of the Bankruptcy Petition (Petition) and described as containing funds that belonged to clients. According to the Petition, certain funds in the RE Trust account were being held at the time of the filing by ONB without N&A?s permission. When ONB received notice of the N&A bankruptcy, it automatically froze both trust accounts so the Bankruptcy Trustee could establish if any funds belonged to the Bankruptcy Estate. The collection case was stayed during administration of the Bankruptcy.
Nadeau requested that Haenn authorize the release of funds totaling $5920.64 held in escrow in the N&A RE Trust account, as well as the aggregate funds being held in both trust accounts. A Superior Court Order dated February 7, 2008 had directed N&A to disburse $2470.13 from those escrowed funds to N&A and the balance of $3450.51 to a former client. N&A?s Bankruptcy was filed before Nadeau received notice of that Order and he was unable to withdraw funds from the RE Trust account to comply with it.
Despite the fact that Haenn?s client possessed the original trust account records, Haenn insisted that Nadeau prove the account balances on the date(s) the accounts were encumbered. Nadeau was initially unsure of the balances due to his confusion about when each account had been curtailed and how much the bank had subsequently withdrawn for fees. However, he calculated with reasonable certainty that the IOLTA balance had been $15,822.79 and the RE Trust account balance had been $6,427.18. Nadeau was unable to negotiate release of the funds with Haenn and, in the absence of any position on the record from the Bankruptcy Trustee, the Bankruptcy Court declined to release them to Nadeau. On July 24, 2008, the Trustee abandoned any interest in the trust accounts thereby removing them from the property of the Bankruptcy Estate.
Afterward, Nadeau notified the District Court of the Abandonment and, on or about November 5, 2008, CV-07-156 was returned to the active docket wherein Haenn continued to oppose Nadeau?s efforts to obtain release of the trust account funds. Nadeau initiated discovery on or about January 12, 2009. At a pre-trial conference held on February 6, 2009, Haenn was provided with copies of correspondence Nadeau had previously mailed to him containing detailed information about the trust accounts. Haenn indicated he would authorize release of the funds once he received answers to questions generated by his client.
Thereafter, the Court issued a Default Judgment on July 8, 2009 having received no objection to a Motion for Default filed by Nadeau. A revised Judgment was issued on August 11, 2009. Both Judgments dismissed the collection case, ordered Haenn?s client to replace all sums it had withdrawn from the trust accounts and to ?immediately release? the fully restored fund balances to Nadeau as counsel for N&A. Additionally, the revised Judgment, docketed August 13, 2009, authorized Nadeau to present it at a local branch of the bank (in order to comply with M.R. Prof Conduct 4.2(a)) ?for immediate compliance,? notwithstanding Haenn?s representation. Nadeau?s attempts to obtain the funds directly from the bank were stymied when corporate counsel informed Nadeau on or about August 17, 2009 that the bank would not release the funds without Haenn?s authorization.
Despite the unambiguous wording of the August 11, 2009 Judgment, almost eight (8) weeks passed between the date it was final on September 3, 2009 and the date it was effectuated. Instead of timely authorizing his client to release the funds, Haenn sought to negotiate litigation issues he believed were not addressed in the Judgment. On October 19, 2009, he endeavored to secure a release from N&A before he would authorize the funds? release. In response to Haenn?s efforts to secure a general release prior to complying with the terms of the Judgment, on October 21, 2009, Nadeau filed this grievance complaint and a Motion for Contempt with the District Court. Haenn remitted the full amount due to N&A to Nadeau in a check dated October 27, 2009.
Haenn?s initial response to this grievance complaint was due on November 23, 2009. Bar Counsel?s staff telephoned him on December 3, 2009 to ask him if his failure to file a response had been inadvertent. Upon Haenn?s assertion that it was, he was granted an extension to December 9, 2009. Misunderstanding the focus of the investigation raised by the grievance complaint i.e. his conduct in response to Nadeau?s attempts to secure release the trust account funds, Haenn denied the allegations in his reply and stated that his involvement with the IOLTA had been peripheral.
On March 3, 2010, Bar Counsel specifically requested that Haenn explain (by March 22, 2010) why the account numbers for both trust accounts appeared concurrently on most, if not all, of Haenn?s filings in the State and Bankruptcy courts if his involvement with them was peripheral. Haenn had viewed the underlying litigation in which he had been attempting to collect a debt as his paramount concern. He had perceived Nadeau?s pursuit of release of the trust account funds as a collateral issue. Due to his misapprehension regarding the investigation of the grievance complaint, Haenn did not clarify that in his letter of March 30, 2010. Instead, he reiterated that his involvement with the IOLTA had been ?peripheral.?
On April 2, 2010, Haenn requested additional time to provide Bar Counsel with more specific information. He was given until April 16, 2010, but failed to supplement his responses. Later, Haenn indicated that he would supplement the Answer to the Disciplinary Petition he filed on October 15, 2010 but he did not do so. While Haenn?s actions throughout the course of litigation with Nadeau were fractious and potentially dilatory, it was his actions after August 1, 2009 (the date the Maine Rules of Professional Conduct became effective) that constituted misconduct.
Haenn now recognizes that the grievance investigation was concerned with his conduct in response to Nadeau?s attempts to secure release of the trust account funds. He further recognizes that his refusal to timely authorize his client to comply with the August 11, 2009 Court Order, and his attempt to secure a general release from N&A violated M.R. Prof. Conduct 8.4(a)(d). He acknowledges that his failures to timely respond to Bar Counsel?s inquiries and to timely provide information he had earlier affirmed would be forthcoming constituted violations of M.R. Prof. Conduct 8.4(a)(d). Further, he acknowledges that he misapprehended the nature and scope of the grievance investigation which caused him to file responses which did not address Bar Counsel?s inquiries in violation of M.R. Prof. Conduct 8.4(a)(d).
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
Haenn intentionally violated duties he owed to the legal system by not timely complying with the District Court?s August 11, 2009 Judgment and abused the legal process causing injury to Nadeau and his clients. Haenn?s failures to timely respond and to submit complete responses to Bar Counsel?s inquiries were negligent. His misunderstanding of the grievance complaint process complicated the investigation and caused injury to the legal system. As then Maine Supreme Judicial Court Justice D. Brock Hornby observed, ?The Board of Overseers can fulfill its responsibility to ensure lawyer discipline only if it is assured that it will receive the full cooperation of all lawyers.? Board of Overseers of the Bar v. George S. Hutchins, 1989 Me. LEXIS 213.
The Panel notes that several mitigating factors are present. Haenn has taken responsibility for his transgressions, apologized to Bar Counsel and expressed remorse for his serious violations of the Maine Rules of Professional Conduct. Haenn has practiced law in Maine for thirty-two (32) years with only one instance of minor, unrelated misconduct that occurred over ten (10) years ago.
After weighing all of the factors to be considered in imposing sanctions, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel accepts the agreement of the parties, including Haenn?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Michael S. Haenn, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C)(4).
For the Grievance Commission
William B. Baghdoyan, Esq., Chair
Mary A. Denison, Esq.
Kathleen A. Schulz
Board of Overseers of the Bar v. Alan F. Harding
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Docket No.: BAR-11-3
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 21, 2011
Respondent: Alan F. Harding
Bar Number: 001113
Order: Suspension/Monitoring Order
Disposition/Conduct: Illegal Conduct; Neglect; Truthfullness in Statements to Others; Conduct Involving Deceit or Misrepresentation; Diligence
DECISION AND ORDER
The Board of Overseers of the Bar initiated the above attorney disciplinary action on April 5, 2011 by the filing of a Petition for Temporary Suspension pursuant to M. Bar R. 7.2(c) . That Petition was later amended to include an additional count and the Amended Petition was then filed on April 21, 2011. Attorney Harding responded with a timely Answer to the Board?s Petitions on April 28, 2011. Trial in this matter was set for November 2 and 3, 2011. After their final pre-trial discussions, the parties notified the Court that they were in agreement to a proposed order providing for stipulated findings and sanction.
On November 2, 2011, the parties appeared before the Court to outline their proposal for resolution of this matter. The Board was represented at the hearing by Assistant Bar Counsel Aria Eee and Marvin Glazier, Esq. appeared with Attorney Harding. Additionally, complainants Beverly Langley and Michelle Maier appeared and explained to the Court their respective difficult experiences as clients of Attorney Harding. Complainant Michelle Andersen, M. D. was not present but did submit a letter for the Court?s consideration.
Harding was admitted to the Maine bar in 1978. From his admission until the present, Harding has engaged in private practice in Presque Isle, Maine. The Court notes that except for the instant action, Harding has not otherwise been disciplined for attorney misconduct.
Following a review of the pleadings, the exhibits and the parties? proposal, the Court finds and Harding agrees that he engaged in multiple violations of the former Maine Code of Professional Responsibility and the Maine Rules of Professional Conduct. Since the Board of Overseers? Petition for Temporary Suspension outlined five (5) separate counts of alleged misconduct, the Court will address each count in turn.
In 2004 Ms. Langley hired Harding to bring suit against the Town of Hampden based upon its alleged negligence as sewage flooded the Langley and Knowles duplex homes. This was due to the Town?s flushing of the sewer lines causing a partial blockage in the sewer lines to release at a location above the Langley/Knowles homes. At that time, Ms. Langley shared the duplex with her elderly mother. Both women were devastated they could not live in their homes due to the damage to the real estate and personal property. Neither Langley nor her mother were familiar with litigation, and it is clear they each unequivocally trusted Harding to pursue their legal action.
During the course of his six-year representation, Harding ultimately failed to provide the professional services Ms. Langley and her mother relied upon him to deliver. In sum, Harding failed to timely communicate with Langley, failed to adequately consult with her about the case, failed to execute a fee agreement or properly bill her and failed to adequately notify or inform her concerning decisions rendered by the Penobscot County Superior Court and the Maine Law Court. Harding?s failures constituted violations of then applicable Maine Bar Rules 3.1(a); 3.2(f)(3)(4); 3.3(a)(9); 3.3(d); 3.6(e)(2)(iii),(iv); 3.6(a)(b)(c) and current Maine Rules of Professional Conduct 1.3 and 1.4.
Phillip Curtis retained Harding in May 2009 to assist him in filing for Chapter 7 Bankruptcy. At the time, Curtis intended to reaffirm two debts to Ford Motor Credit Corporation. After signing and returning the reaffirmation agreements to Harding, Curtis expected that Harding would finalize those agreements with Ford?s counsel. Harding asserts he never did so as it was his belief that Curtis was not current in his payments and was not eligible to reaffirm. As a result, Curtis was discharged in bankruptcy without having reaffirmed his debts which would have allowed him to retain his vehicles. Subsequently, Harding misrepresented to Ford Motor Credit?s counsel that Curtis had never executed the forms. Finally, while Harding and Curtis disputed Curtis? available income, the Board?s independent investigation (involving the Bankruptcy Trustee?s office) confirmed Curtis? ability and willingness to reaffirm the two debts. Harding?s actions in the Curtis matter constituted violations of then applicable M. Bar R. 3.1(a); 3.6(a)(2)(3) and M. R. Prof. Conduct 4.1(a) and 8.4(c).
In November 2009, Dr. Michelle Andersen retained Harding to protect her interests related to a dispute about her reassigned duties at The Aroostook Medical Center. In her complaint to the Board of Overseers, Dr. Andersen alleged that during the initial meeting between her and the hospital CEO, Harding abandoned his advocacy of her and offered instead, to mediate the dispute. Harding agrees that he made that offer without first privately discussing/or reviewing it with Andersen and understands that by doing so, he violated M. R. Prof. Conduct 1.2; 1.4; 8.4(a). Harding later agreed to serve as the mediator but stressed to the Board that he did obtain Andersen?s consent before he began his work as the mediator. Thereafter, he failed to advise or suggest to Andersen that she obtain independent legal counsel during the continuing dispute and mediated sessions. In the end, Andersen felt betrayed by Harding as she had relied on his assurances when he took on the role of mediator. Harding?s failure to advise her of the potential conflict and its potential consequences were violations of M. R. Prof. Conduct 1.7(a)(2) and 8.4(a).
On February 1, 2011, Bar Counsel docketed a sua sponte complaint against Harding based upon his failure to file Maine tax returns and to pay Maine income tax for six (6) years, 2004-2009. Harding was charged by criminal complaint in November 2010 and pleaded no contest to those charges in June 2011. By the time of his sentencing, Harding had paid all or nearly all of the tax, penalties and interest due. As a result of his pleas, Harding was given a 180-day sentence to the Aroostook County Jail with all but 10 days suspended with a one (1) year of Administrative Release. The Court finds that Harding?s criminal conduct constituted violations of M. Bar R. 3.1(a); 3.2(f)(2)(3); and M. R. Prof. Conduct 8.1(b); 8.4(a)(b)(c).
On April 11, 2011, Michelle Maier filed a complaint against Harding alleging his neglect of her personal injury case and his improper handling of her settlement funds. Maier also explained that Harding had failed to pay most of her medical bills, despite more than two years to do so. Harding contends that there was a lack of funds to pay all of Maier?s medical bills that were incurred, a fact he did not discover until after the matter had been arbitrated in 2009. Harding does agree that he delayed in making payments on any of the bills until after Maier?s complaint filing. Finally, Maier also expressed to the Court her upset about Harding?s unexplained delay in returning her client file to her. With assistance from Harding?s counsel, Attorney Glazier, Ms. Maier?s file was returned. Harding?s earlier failure to properly monitor and finalize Maier?s legal matter resulted in his violations of M. Bar R. 3.1(a); 3.6(a) 3); 3.6(e)(2) and M. R. Prof. Conduct 1.3; 1.4; 1.5(a); 1.15(b)(2); 1.16(d).
Attorney Harding?s multiple violations of the former Code of Professional Responsibility and the current Maine Rules of Professional Conduct are serious and the Court must now consider an appropriate sanction. The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. The Court?s Order is intended to address the serious problems associated with Harding?s law practice.
To address the concerns about Harding?s practice management deficiencies, the parties have agreed and the Court hereby orders that Harding submit his practice to monitoring by Attorney Winfred Stevens of Bangor, Maine. That detailed Order for Monitoring is incorporated herein by reference. The Court expects that Harding will improve his client relations, his calendaring system and his management of the breadth of his caseload, so as to avoid future grievance complaints.
Finally, the parties were unable to agree on whether Attorney Harding?s office would remain open or closed during the period of his actual suspension and presented the Court with their respective arguments on that issue. The Court acknowledges that if it were to accept the Board?s argument by completely closing down Harding?s Law Office the effect of that closure might prejudice clients? cases regarding important deadlines, appeals, will deliveries, client file return, etc. Moreover, the requirement of a complete closure of the law office would exact a harsher sanction upon a solo practitioner than if the attorney was a member in a firm (small or large) where such complete closure would not occur. While the Court is mindful of the Board?s concern for ensuring that the public is protected by Harding?s serving an actual suspension, the goal under the Maine Bar Rules is for protection of the public, not penalization of Mr. Harding.
For that reason, the Court declines to order a complete closure but instead, ORDERS that Harding?s Law Office may only be open for up to three days a week to deal with the administrative functions of the office. During that time period, the office may be staffed by one support person and when necessary, Attorney Matthew Hunter will be available to address client questions and otherwise deal with client needs. If emergencies should arise, Attorney Frank Bemis will be available to assist Harding?s criminal clients (in Aroostook County Superior Court). Attorney Harding may not contact or be contacted by his staff to participate in any client requests or consultations.
Accordingly, the Court imposes upon Attorney Harding a six (6) month suspension from practice, with all but thirty (30) days of that period suspended. In doing so, the Court approves the parties? agreement and ORDERS the following sanction and conditions:
FOR THE COURT
Joseph M. Jabar, Associate Justice ? Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott G. Adams
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Docket No.: GCF No. 10-035
Issued by: Panel E of the Grievance Commission
Date: January 5, 2012
Respondent: Scott G. Adams
Bar Number: 008019
Order: Reprimand
Disposition/Conduct: Conduct Involving Dishonesty, Deceit and Misrepresentation
REPORT OF FINDINGS AND ORDER PANEL E OF THE GRIEVANCE COMMISSION
On September 27 and November 29, 2011, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Scott G. Adams. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 30, 2010.
At the hearing, the Respondent was represented by Attorney Peter J. DeTroy and the Board was represented by Assistant Bar Counsel Aria Eee. The Panel heard a total of five witnesses, including the complainant, Attorney Judy Metcalf, and the Respondent. The Panel admitted a total of 75 exhibits, Board Exhibits 1 ? 45, and Respondent?s Exhibits 1 ? 30. Having considered all the evidence and arguments of counsel, the Panel makes the following findings and disposition.
Scott G. Adams was admitted to practice in 1980 and has maintained a practice to the present, concentrating on estate and tax matters in East Boothbay, Maine. The Respondent also qualified as a Certified Public Accountant in 1974 and has maintained his license as a CPA also.
The events of the instant grievance arise out of the filing, hearing, and disposition of an earlier grievance (Board v. Adams, GCF No. 08-174), which was disposed of by the Report of Findings and Order of Panel D of the Grievance Commission, dated May 6, 2009 [hereinafter ?Panel D Report?]. Panel D found, in part:
On May 12, 2008, Attorney Adams self-reported to the Board that he had violated Maine Bar Rule 3.6(a)(3) of the Code of Professional Responsibility [since abrogated and replaced by the Maine Rules of Professional Conduct]. Specifically, Adams reported that in the course of advising the Personal Representative (PR) for the Brownell estate, he failed to timely file a federal estate tax return, or request an extension of the same. Adams also failed to recommend timely payment of the federal estate tax due, all of which resulted in significant monetary penalties and interests, potentially totaling costs to the estate of approximately $ 134,000.00. While Attorney Adams did request a reduction in the assessed penalties, the IRS has not yet responded to that request. At the disciplinary hearing, Attorney Adams expressed remorse for his actions and oversight. In January of 2008, upon recognizing his error, Attorney Adams committed to reimburse the estate for losses incurred due to his neglect. In that regard, by early May of 2008 Attorney Adams, prior to the initiation of this action remitted $ 50,000 to the estate. Certainly, his efforts are important and the Panel expects that Attorney Adams will finalize any actions to fully reimburse the estate.
Panel D Report, at 2. [emphasis added] In its Conclusions, Panel D went on to say:
While the injury to the client due to potential IRS penalties and interest appears significant, it is apparent that Attorney Adams has committed to making his client whole. Finally, in view of the remorse expressed by Attorney Adams and the isolated nature of the misconduct, the Panel finds little or no likelihood of a repetition of the misconduct. Accordingly, the Panel hereby dismissed the complaint with a warning to Attorney Adams to avoid any such delays in addressing the consequences of his actions in the future.
For reasons only partly related to the Respondent?s actions, the principals in the Brownell estate had earlier determined to replace the family PR with an attorney as PR, who would be neutral. They agreed on Attorney Martin L. Eisenstein, of Brann & Issacson, who was appointed in April, 2009. Attorney Eisenstein made a preliminary review of the returns prepared by the Respondent, and determined that a complete ?overhaul? of the Estate?s financial records, and amendment of the returns were in order. The Estate was by then under notice of an IRS audit. He retained another attorney and an experienced paralegal at his firm, and conducted such an overhaul, which resulted in an amended return showing significantly different amounts. The IRS accepted this amended return at the audit, and the total penalties and interest the Estate owed was settled on January 29, 2010. (see, Respondent Exhibit 28, the closing letter from the IRS.)
Meanwhile, noting that the Estate had only the earlier payment of $ 50,000 from the Respondent, and no security for what would clearly be a significant obligation, Attorney Eisenstein retained Attorney Daniel A. Nuzzi of his firm to sue the Respondent and obtain attachment of Respondent?s assets to secure payment of his obligation. The Complaint and motion for attachment were filed in the Superior Court on or shortly after June 12, 2009, less than thirty days after the issuance of the Panel D report. There was little if any discussion by Attorneys Eisenstein and Nuzzi with the attorney then representing the Respondent, about voluntarily obtaining security or about settling on a figure of the amount that Respondent owed the Estate. At any rate, it would have been difficult to settle on an amount at that time, as the IRS audit was not settled until the following January, and both parties understood that the Respondent owed also the attorney?s fees and expenses for the work necessary to redo the returns and support them in the audit. This work had not been completed at the time of the complaint and motion for attachment.
Accordingly, the Estate?s motion requested attachment in the amount of $ 309,172.10. In his affidavit in support, Attorney Eisenstein asserted that the total federal and state interest and penalties was revealed in ?an initial analysis? to be ?approximately $ 244,767.00.? Similarly, he stated that ?it is anticipated that the legal costs alone for this endeavor [correcting the returns] will be $ 75,000 to $100,000.? Respondent?s Exhibit 9, Motion for Attachment June 12, 2009, at 5.
These amounts are far greater than any amount the Respondent had believed would reasonably reflect the actual damages his actions had caused the Estate. He immediately retained Attorney Jonathan Hull to defend the action and to resist attachment in the increased amounts.
Attorney Hull thought of the case as an ordinary civil litigation arising out of an alleged act of negligence, the moral equivalent of a personal injury case arising out of an automobile accident. He chided the Respondent for his earlier voluntary payment of $ 50,000, as violating the principle against settling piecemeal, and thereby losing the leverage inherent in the ability to hold up settlement.
He argued in Superior Court that the Estate was requesting attachment in an excessive amount. Attorney Hull also informed the Estate of what he believed to be Respondent?s real estate holdings, their appraised value, and the amount of mortgages. Attachment A to Board Exhibit 29, Letter from Attorney Hull to Attorney Nuzzi dated July 15, 2009. This letter was based on information supplied by the Respondent in an email to Attorney Hull dated July 7, 2009. Respondent?s Exhibit 30.
He was surprised to learn from Attorney Nuzzi at a status conference, that the Respondent, by deeds dated June 18, 2009, had conveyed three parcels of real estate into a closely held corporation, WEOALOT, LLC., which was incorporated on June 5, 2009. These conveyances fall after counsel for the Respondent was notified of the suit and motion for attachment (June 12, 2009) and before the granting of the motion for attachment (October 29, 2009). The conveyance to WEOALOT was not mentioned in Attorney Hull?s July 15, 2009 letter. The Respondent had received a copy of that letter. Had Brann & Isaacson not done an updated registry search, WEOALOT would not have been subject to the attachment. As it was, Attorney Hull did not resist the amendment of the complaint and the attachment to include WEOALOT as a defendant. See, Board Exhibit 30.
The Respondent testified that WEOALOT was not an attempt to avoid the imposition of attachment, but rather a routine matter of placing his rental properties under separate ownership, a result of the recommendation of his bank, which predated by months any inkling he had of the suit and attachment.
Attorney Hull sought discovery of the billing records which might support the Estate?s claim for attorney?s fees for the work necessary to redo the returns and settle with the IRS, work for which both parties believed the Respondent was liable. Clearly, there were many other areas of legal work performed by Brann & Isaacson for the Estate, for which Respondent would have no liability. One example would be the legal work to prosecute the suit and attachment themselves, which under the American Rule are not compensable. Attorney Hull filed a Request for Production of Documents on January 8, 2010. Attorney Nuzzi raised various objections, and the first meaningful response was filed on March 30, 2010. Attorneys Hull and Nuzzi went back and forth, agreeing to some items and disputing others. This process was still ongoing when the parties met on June 2, 2010, for a judicial settlement conference. The Estate?s March 30 response arguably supported an attorney?s fee award of $ 72,517.83, and the Estate entered the settlement conference requesting ?approximately $ 42,000? in fees. Respondent?s Exhibit 23. Attorney Hull first acknowledged fees chargeable to the Respondent in the amount of $ 13,213.00, in a letter on April 9. Respondent?s Exhibit 22. This is also the amount he brought into the settlement conference.
The parties settled at the June 2 conference for a total of $ 155,000; with credit for the $ 50,000 earlier paid, the Respondent paid the Estate another $ 105,000, part immediately, and the balance within 30 days. Respondent made timely payments under the settlement. The settlement agreement, dated June 11, 2009, Respondent?s Exhibit 27, does not allocate the total between IRS penalties and interest, and the attorney fees.
The Position of the Board: The Board argues that the Respondent violated Maine Bar Rule 3.7(e)(1)(1), which stated:
3.7 Conduct During Litigation (e) Adversary Conduct. (1) In appearing in a professional capacity before a tribunal, a lawyer shall:
(i) Employ, for the purposes of maintaining the causes confided to the lawyer, such means only as are consistent with the truth, and shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law.
The Board also argues that the Respondent violated Maine Rule of Professional Conduct 8.4:
8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or to do so through the acts of another; (b)..... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.
The Maine Rules of Professional Conduct became effective August 1, 2009, replacing the Maine Bar Rules.
The Board argues that the Respondent?s misconduct consisted of two related actions:
First, the Board alleges that the Respondent?s action in forming WEOALOT, LLC, and conveying his real estate to it, while aware that the Estate was seeking an attachment, ?[was] deceptive and arguably amounted to a fraudulent conveyance, in violation of M.R. of Prof. Conduct 8.4(c).? Disciplinary Petition, September 30, 2010, ?19.
Second, the Board alleges that the ?A review of the docket record [of the lawsuit by the Estate] reveals that the attachment and lawsuit were vigorously contested and defended by Adams. Thus, his April 27, 2009, assurances to the Grievance Commission Panel [D] were arguably disingenuous and/or deceiving in violation of then applicable M.Bar R. 3.7(e)(1)(i).? Id, ? 24.
The Position of the Respondent:
The Respondent characterizes the Board as complaining that he ?fought too hard? in defending himself against the Estate?s lawsuit which was seeking excessive damages. He argues that his commitment at the Panel D hearing to make the Estate whole was made in good faith and, in fact, he met his commitment with reasonable promptness as soon as the amount of damages was agreed. He points to the timing of events. The IRS settlement did not occur until January 29, 2010. By then, the Estate had begun its lawsuit and attachment, for an amount that was demonstratively excessive, when compared to the eventual settlement.
The Respondent dismisses the creation and conveyance of property to WEOALOT, LLC, as unrelated to his controversy with the Estate. He never used it to obstruct the collection of his obligation, which he paid promptly as soon as the amount was settled.
We will first discuss the Board?s second allegation of misconduct, that the Respondent?s vigorous defense of the lawsuit and the thirteen month delay in his actually making payment to the Estate constituted reneging on his statements to Panel D at the hearing on GCF # 08-174, in violation of Maine Bar Rule 3.7(e)(1)(i).
The Respondent?s intention to pay the Estate for its loss is referenced throughout the April 27, 2009, hearing before Panel D. The most explicit statement is:
Mr. Bagdoyan [a Panel D member]: Your plan is that the entire amount of the penalty and interest, whatever it is, is going to be paid back? Mr. Avantaggio [Respondent?s counsel]: Yes.
Respondent?s Exhibit 1, p. 18. Maine Bar Rule 3.7(e)(1)(i), states in relevant part, ?[A lawyer] ? shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law.?
The Respondent?s undertaking to Panel D was to pay amount of the interest and penalties after it was settled by the IRS; this did not occur until January 29, 2010. That is the earliest date that Respondent could have been expected to make a payment. In the meantime, in June 2009, the lawsuit was commenced and the attachment requested, for amounts far larger than the Respondent expected. He settled the lawsuit, and paid the Estate within about four and one half months after January 29.
Respondent defended the lawsuit; it is not possible to read his undertakings to Panel D as being a waiver of his right to do so. Attorney Hull?s defense was vigorous, especially so on the issue of attorney?s fees. However, his actions were not dilatory. He could not be expected to advise his client to settle, until he had reviewed documentation adequately supporting the charges, and assigning the charges to the portion of the Brann & Isaacson work for the Estate which was caused by the Respondent?s negligence. The Estate only began to produce documentation on March 30, and approximately two months later, the Respondent settled.
This Panel does not view the Respondent?s subsequent conduct as compelling an inference that his undertakings to Panel D were ?misleading or false statement of fact.? Accordingly, This Panel holds that the Board did not prove that Respondent violated Maine Bar Rule 3.7(e)(1)(i).
The Respondent?s actions and inactions in the matter of the conveyances to WEOALOT are a different matter. He signed the conveyances on June 18, and less than three weeks later, by email on July 7, 2009 he misinformed Attorney Hull of the ownership status of these parcels of real estate. His actual words are: ?Jon, as requested, my wife and I have interests in the following Maine properties?? Respondent?s Exhibit 30. He knew, or should have known, that this information would be sent on to Attorney Nuzzi; and in fact it was, by Attorney Hull?s letter of July 15. Exhibit A to Board Exhibit 29. He was a copy addressee to this letter, and he took no action to correct the misstatement. Attorney Hull in good faith repeated the misstatement to the Superior Court, when he based his Motion to Limit Attachment and Trustee Process dated January 11, 2010, on the misstatements in the July 15 letter. Board Exhibit 29.
Whether the creation of WEOALOT, LLC, and the conveyances thereto arose innocently from a suggestion by the bank, or not, is a red herring. Whatever the Respondent?s motivation for the creation of WEOALOT and the conveyances, the effect on the litigation of Respondent?s misstatement to his attorney would be the same. If the conveyance had not been detected by Attorney Nuzzi, the attachment entered on October 29, 2009, would not have prevented the Respondent from conveying this real estate, which had considerable equity, through WEOALOT, free of the attachment. If the Estate then had to chase down the property through an action for fraudulent conveyance, it may have ultimately prevailed, but only after additional delay, risk, and expense. This Panel finds that the Respondent violated Maine Bar Rule 3.7 and Maine Rules of Professional Conduct 8.4, when he:
? Misled Attorney Hull on his ownership of the three parcels of real estate though his email dated June 18, 2009; ? Took no action to correct the misstatement in Attorney Hull?s letter to Attorney Nuzzi dated July 15, 2009; and ? Took no action to correct the misstatement when repeated by Attorney Hull to the Court in his Motion to Limit Attachment and Trustee Process on January 11, 2010.
DISPOSITION
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Among the factors to be considered in imposing disciplinary sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. M. Bar R. 7.1(e)(3)(C).
The first factor is whether duty breached is owed to the client, the public, the legal system, or the profession. Id, (i). The Respondent?s dishonest misstatement was first communicated to Attorney Hull, who suffered the embarrassment of being publicly caught in the misstatement (and the possibility of his credibility being diminished among his colleagues), then to Attorney Nuzzi, representing the Respondent?s former client, which might have been materially injured by the misstatement, and finally to the Court. The Respondent?s duty to his client, the public, the legal system and the profession were all implicated by his misconduct.
The second factor is whether the attorney acted intentionally, knowingly, or negligently. Id, (ii). The Respondent at the least acted ?knowingly? in omitting reference to the conveyances to WEOALOT in his email to Attorney Hull.
The third factor is the amount of injury actually or potentially caused by the misconduct. Id, (iii). The actual injury to the Estate was slight, because Attorney Nuzzi?s diligence brought the conveyances to light in time to appropriately modify the attachment. Potentially, the injury could have been greater, because it could have affected the timing and expense of the Estate?s recovery under the attachment.
There was another injury caused by the Respondent?s dishonest statement, even though it was detected and corrected. The tenor of the exchanges between the attorneys in the attachment lawsuit was unnecessarily acrimonious. In part this is the result of Attorney Hull?s belief that the Estate?s resistance to discovery of the legal billings was specious and dilatory. However, the result of the Respondent?s misstatement regarding his real estate holdings, and its detection, was to contribute to the acrimony, for it contributed to a belief in the Estate?s part that his defense was dilatory. All of this may have delayed the settling of the lawsuit, which would have increased the expense and uncertainty suffered by the heirs.
The Panel concludes that the appropriate disposition of this case is a Public Reprimand of Scott G. Adams, Esq. which is now each hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Victoria Powers, Esq., Chair
John C. Hunt, Esq.
Marjorie M. Medd
Footnotes
1Also involved were income tax returns of the Estate prepared by the Respondent.
2In April 2008, the Estate had made a payment to the IRS of $ 131,000; the entire tax, penalties, and interest has now been paid.
3It should be noted that the claim of $ 75 ? 100,000 was for legal costs to redo the returns, while the Respondent had charged approximately $ 14,000 to produce them in the first instance. In like vein, the claim for $ 245,000 for interest and penalties was at least $ 100,000 greater than Respondent?s estimate and the amount referenced in the Panel D Report.
4This is a single course of conduct, which bridged the abrogation of the Maine Bar Rules and their replacement by the Maine Rules of Professional Conduct, on August 30, 2009. That change did not materially change the scope of prohibited conduct, as it affects the Respondent?s action.
5?A person acts knowingly with respect to the result of a person?s conduct when the person is aware that it is practically certain that the person?s conduct will cause such a result.? 17-A M.R.S. ? 35(2). Compare, ?A person acts intentionally with respect to the result of a person?s conduct when it is the person?s conscious object to cause such a result.? Id, 35(1).
Board of Overseers of the Bar v. Patrick E. Hunt
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Docket No.: GCF# 10-145
Issued by: Grievance Commission
Date: December 30, 2011
Respondent: Patrick E. Hunt
Bar Number: 002707
Order: Dismissal with Warning
Disposition/Conduct: Conflict of Interest - Simultaneous Representation; Avoiding Misreliance
REPORT OF FINDINGS OF PANEL A OF THE GRIEVANCE COMMISSION
Pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing on November 18, 2011 in accordance with Maine Bar Rule 7.1(e)(2) and open to the public on a complaint concerning the Respondent, Patrick E. Hunt, Esq. At the disciplinary hearing the Board was represented by Assistant Bar Counsel Aria Eee, Esq. and Respondent was present and represented by the Theodore Kirchner, Esq.
At the hearing, the Panel heard testimony from the following witnesses:
Patrick E. Hunt, Esq. - Respondent
Juanita Tarr - office paralegal
Charlene Gould ? office paralegal
Darcy Merry ? office paralegal
Janelle Grant ? office paralegal
Heather Blue ? Petitioner
Robert Langner, Esq. ? Family Court Magistrate
Carl McCue, Esq. ? Friend of Petitioner
David Walker ? Petitioner?s ex-spouse
The Board?s exhibits 1-27 and Respondent?s exhibits 1-56 were admitted without objection. Respondent?s Exhibits 57 and 58 were admitted for limited purpose only without objection.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings in this matter:
This case is complicated by the presence of family-type relationships between Mr. Hunt and his nephew, David Walker, and Attorney Carl McCue and his close, family-like relationship with Ms. Blue.
Mr. Hunt testified he believed that Attorney McCue was representing Ms. Blue. He based this conclusion on the fact that he believed that Mr. McCue asked for copies of the agreement (via fax) and pleadings, requested an amendment to the agreement which resulted in Ms. Blue receiving substantially more real estate and requested an amendment which reduced her indebtedness.
Mr. Hunt?s letter of 6/27/07 (Respondent?s Exhibit #8) was addressed to Attorney McCue with a copy to David Walker. The letter clearly states that Mr. Hunt represented David Walker. It did not make clear that Mr. Hunt was representing only David Walker and not Ms. Blue ? perhaps because Mr. Hunt believed that Mr. McCue was representing Ms. Blue. Nor was a copy of that letter sent to Ms. Blue ? perhaps for the same reason. Had Mr. Hunt prepared a timely letter of non-representation to Ms. Blue to clarify this issue in June of 2007, the issue would not have arisen. We find this misconduct, if any, is minor under Rule 3.4(c)(1) and Rule 3.6(i).
Mr. Hunt?s testimony and that of his staff was that he does routinely use letters of non-representation in other matters, such as real estate. It is also significant that at the divorce hearing before Magistrate Robert Langer, Ms. Blue was acting pro se and confirmed to the Magistrate that she was acting pro se, although in her testimony she claimed not to understand what that meant, despite the Magistrate?s explanations.
Although Ms. Blue testified that she did not know that Mr. Hunt was representing only Mr. Walker, a letter addressed to her (and initialed by her) dated August 2, 2007 (Respondent?s Exhibit #12) clearly indicates that Mr. Hunt was representing only Mr. Walker and could not answer her questions, The evidence presented would lead a reasonable person to conclude that Mr. Hunt was only representing Mr. Walker on August 2, 2007.
We find that the conduct of Mr. Hunt caused little or no injury to Ms. Blue. It was not Mr. Hunt?s conduct that caused any post-judgment injury to Ms. Blue. Ms. Blue?s post-judgment proceedings involved matters of custody issues that arose after the divorce hearing.
Mr. Hunt and his staff testified that he no longer accepts divorce cases of any kind. We therefore conclude that there is little likelihood of repetition.
The Panel is mindful of the purpose of this proceeding such that it is not punishment but protection of the public and the courts.
Based upon the evidence and the record before it, Panel A unanimously determines that the appropriate disposition of this Petition is that it be dismissed with a warning to Mr. Hunt. The Panel suggests that Mr. Hunt attend continuing legal education courses pertaining to conflict of interest matters and that he employ his practice of sending timely letters of non-representation like those he uses in other matters should he meet with any potential divorce clients in the future.
For the Grievance Commission
M. Ray Bradford, Jr.
Sarah McPartland Good
Norman Ross
Board of Overseers of the Bar v. Rose L. Jordan
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Docket No.: GCF No. 11-021
Issued by: Grievance Commission
Date: December 23, 2011
Respondent: Rose L. Jordan
Bar Number: 002783
Order: Dismissal with Warning
Disposition/Conduct: Failure to File Required Affidavit after being Administratively Suspended
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION
On December 19, 2011, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Rose L. Jordan (Jordan). This disciplinary proceeding was commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 10, 2011.
At the hearing, Jordan was not present and the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Rose L. Jordan of Wells, Maine was, until the imposition of an administrative suspension, at all times relevant hereto either an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine attorney, and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Jordan was admitted to the Maine Bar in 1983. On or about August 8, 2009, Jordan notified the Board that she was changing her status from active to inactive registration on the Fiscal Year 2010 Annual Registration Statement and she was exploring emeritus status. Jordan paid the registration fee required for emeritus status but did not remit the full amount to register as inactive.
On or about July 8, 2010, Jordan completed and returned the Fiscal Year 2011 Annual Registration Statement notifying the Board that her mail and phone contact would be unpredictable through June 2011 and that she had not actively practiced law for at least ten (10) years. Jordan?s written notice did not comply with the affidavit requirements of Maine Bar Rule 7.3(i)(2)(A)(B).
Jordan was administratively suspended for failure to pay the remaining balance of her annual registration fee for Fiscal Year 2010 and her failure to remit the annual registration fees for Fiscal Year 2011. Jordan was informed that she needed to file an affidavit complying with the requirements Maine Bar Rule 7.3(i)(2)(A)(B). On or about December 24, 2010 she explained in a letter that she was on a boat, did not have access to a Notary Public and could not prepare an affidavit at that time.
On January 13, 2011 Bar Counsel opened a sua sponte complaint against Rose L. Jordan for her failure to file the required affidavit. Jordan did not file a response to the grievance complaint. On April 28, 2011 a panel of the Grievance Commission reviewed the file on Jordan?s conduct and found probable cause to believe that Jordan had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 25, 2011, Jordan responded to correspondence from Assistant Bar Counsel Jacqueline L.L. Gomes and indicated her intent to file an affidavit in compliance with M. Bar R. 7.3(i)(2(A)(B). Jordan filed that affidavit on August 1, 2011.
Jordan violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine bar, nor has she completed a change of status to inactive or withdrawn from the practice of law.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The following factors are to be considered in imposing sanctions; The duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Jordan violated her duties to the legal system by failing to complete the annual registration requirements in 2010 as well as failing to file the required notification affidavit once she was administratively suspended. Jordan?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There are no aggravating circumstances. There are, however, several mitigating circumstances. This misconduct is not the result of dishonest or selfish motives. Jordan submitted the required affidavit and stated that she had not represented any clients for at least ten years prior to requesting a change to inactive status on August 9, 2009. Jordan was mistaken when she thought that she had completed the requirements for inactive status in 2009. There was no injury to any clients as a result of her misconduct. Further, Jordan took responsibility for her transgressions.
Because the misconduct was minor, there was no harm to any clients, little harm to the profession and the misconduct is unlikely to be repeated, the Panel accepts the agreement of the parties, including Jordan?s separately executed waiver of the right to file a Petition for Review. As a result, the Panel concludes that the appropriate disposition of this case is a Public Dismissal With Warning to Rose L. Jordan which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Peter C. Fessenden, Esq., Chair
Martica S. Douglas, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Robert M. Walsh
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Docket No.: GCF No. 11-011
Issued by: Grievance Commission
Date: December 19, 2011
Respondent: Robert M. Walsh
Bar Number: 002483
Order: Dismissal with Warning
Disposition/Conduct: Failure to File Affidavit after being Adminstratively Suspended
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION
On December 19, 2011, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Robert M. Walsh (Walsh). This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 20, 2011.
Walsh attended the hearing and represented himself pro se. The Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Prior to the disciplinary proceeding, the parties had submitted a proposed Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Robert M. Walsh of Manchester, New Hampshire was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. Walsh was admitted to the Maine Bar in 1981.
On October 15, 2010 Walsh was administratively suspended by the Board due to CLE deficiencies and his failure to register and pay the fees required by Maine Bar Rules Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine?s Rules For Lawyers? Fund For Client Protection. Walsh did not file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. By its certified letter of December 7, 2010, the Board notified Walsh of the consequence of his failure to file that required affidavit. On or about December 10, 2010 an agent of Walsh, Danielle Jackson, accepted and received the Board?s certified mailing of December 7, 2010 concerning his failure to comply with Maine Bar Rule 7.3(i)(2). Walsh failed to meet Bar Counsel?s filing deadline of January 3, 2011.
On January 13, 2011, Bar Counsel docketed a sua sponte grievance complaint against Walsh for his failure to comply with the affidavit requirements. Walsh did not respond to the investigation of this grievance in violation of M. R. Prof. Conduct 8.1(b). On March 31, 2011 a panel of the Grievance Commission reviewed Walsh?s actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 20, 2011, the Board filed the Disciplinary Petition. On August 18, 2011, Walsh signed the Notice and Acknowledgement and filed an Answer to the Disciplinary Petition dated August 30, 2011. In his Answer, Walsh explained that his failure to fulfill the registration requirements, failure to respond to the correspondence regarding the administrative suspension and grievance matters, and failure to file the required affidavit were all due to stress, depression and grief associated with the diagnosis, course of treatment and, ultimately, the loss of his wife to cancer on July 24, 2010. Walsh paid all past due amounts to the Board, including reinstatement fees. Walsh?s affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B) was filed on September 27, 2011.
Walsh violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine bar.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to clients and the courts. Walsh violated his duties to the legal system by failing to complete the annual registration requirements in 2010 and by failing to file the required notification affidavit once he was administratively suspended. Walsh?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There are no aggravating circumstances. There are, however, several mitigating circumstances. This is the only instance of misconduct since Walsh was admitted to the Maine bar in 1981. It is not the result of dishonest or selfish motives and occurred during a time of personal tragedy, grief, depression and financial difficulty. Walsh, a solo practitioner, was faced with distracting family responsibilities from the time his wife was diagnosed with cancer in July 2008 until her death on July 24, 2010. Walsh received treatment for depression while his wife was ill and for acute grief reaction after her death. Walsh reduced the size of his practice in New Hampshire as a result of his difficulties. He has not represented a client in Maine for over ten (10) years. There was no injury to any Maine clients as a result of his misconduct. Further, Walsh took responsibility for his transgressions. At the disciplinary hearing, Walsh expressed his remorse for his violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct. Walsh apologized to Bar Counsel and the Grievance Commission.
Walsh informed the Panel that he was filing a Petition for Reinstatement with the Executive Clerk of the Law Court pursuant to M. Bar R. 7.3(j)(4), that he intended to request that the administrative suspension be lifted and to withdraw formally from the practice of law in Maine.
Because the misconduct was minor, there was no harm to any clients, little harm to the profession and the misconduct is unlikely to be repeated, the Panel accepts the agreement of the parties, including Walsh?s separately executed waiver of the right to file a Petition for Review. As a result, the Panel concludes that the appropriate disposition of this case is a Public Dismissal With Warning to Robert M. Walsh which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Peter C. Fessenden, Esq., Chair
Martica S. Douglas, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Tanya Stepasiuk
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Docket No.: GCF No. 11-014
Issued by: Grievance Commission
Date: December 23, 2011
Respondent: Tanya Stepasiuk
Bar Number: 004191
Order: Reprimand
Disposition/Conduct: Failure to file Required Affidavit after Admistrative Suspension
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION
On December 19, 2011, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Tanya Stepasiuk. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 11, 2011.
At the hearing, Stepasiuk was not present and the Board was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Prior to the disciplinary proceeding, the parties had submitted a proposed Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the proposed findings as presented by counsel, the Panel makes the following disposition:
Until the imposition of an administrative suspension, Respondent Tanya Stepasiuk (Stepasiuk) of Wakefield, Massachusetts was, at all times relevant hereto, an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional conduct.
Stepasiuk was admitted to the Maine bar in 2007 and she is currently subject to an administrative non-disciplinary suspension.
On October 15, 2010 Stepasiuk was administratively suspended by the Board for her failure to report CLE credit and her failure to register and pay the fees required by Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine?s Rules For Lawyers? Fund For Client Protection. Stepasiuk did not file the affidavit certifying her compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board?s certified letter of December 7, 2010 which notified Stepasiuk of the consequence of her failure to file that required affidavit was returned as unclaimed.
On January 18, 2011, Bar Counsel docketed a sua sponte grievance complaint against Stepasiuk for to her failure to comply with the affidavit requirements. Stepasiuk did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On March 31, 2011 a panel of the Grievance Commission reviewed Stepasiuk?s actions and, based upon that review, found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules.
On August 11, 2011, the Board filed a Disciplinary Petition. On August 18, 2011, Stepasiuk was served with a copy of the Disciplinary Petition. On that same day, she signed the Notice and Acknowledgement and filed an Answer to the Disciplinary Petition dated September 20, 2011. In her Answer, Stepasiuk explained that she no longer practiced law and had thought that she had previously satisfied the requirements to change her status from active to inactive. To date, Stepasiuk has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Stepasiuk violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Stepasiuk violated her duties to the legal system by failing to complete the annual registration requirements in 2010 and by failing to file the required notification affidavit once she was administratively suspended. Stepasiuk?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Stepasiuk?s continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B) is an aggravating circumstance. There are, however, several mitigating circumstances. The misconduct is not the result of dishonest or selfish motives. Stepasiuk was mistaken when she thought that she had previously completed the requirements for inactive status. As indicated in her Answer to the Disciplinary Petition, Stepasiuk no longer practices law and there was no injury to any clients as a result of her misconduct. Further, Stepasiuk took responsibility for her transgressions.
Since the evidence supports a finding and Stepasiuk agrees that she did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel accepts the agreement of the parties, including Ms. Stepasiuk?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Tanya Stepasiuk which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Peter C. Fessenden, Esq., Chair
Martica S. Douglas, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Michael L. Kress
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Docket No.: GCF No. 11-016
Issued by: Grievance Commission
Date: December 23, 2011
Respondent: Michael L. Kress
Bar Number: 004430
Order: Reprimand
Disposition/Conduct: Failure to file required Affidavit after being Administratively Suspended, Failure to Respond to Disciplinary Petition
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION
On December 19, 2011, with due notice, Panel C of the Grievance Commission conducted a disciplinary hearing concerning alleged misconduct by the Respondent, Michael L. Kress (Kress). This disciplinary proceeding was commenced on August 11, 2011 through the Board of Overseers of the Bar?s filing of a Disciplinary Petition. The December 19, 2011 hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(2)(E).
Kress failed to file an Answer to the Disciplinary Petition. Therefore, pursuant to Maine Bar Rule 7.1(e)(1), the misconduct alleged in the Petition, as set forth below, was taken as admitted by Kress and the hearing was held to determine the appropriate sanction.
At the hearing, the Board of Overseers of the Bar (the Board) was represented by Assistant Bar Counsel Jacqueline L.L. Gomes. Kress was not represented by counsel and, despite being properly notified of the hearing, did not appear to be heard on the question of sanctions.
Until the imposition of an administrative suspension, Respondent Michael L. Kress of Portland, Maine was, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Kress was admitted to the Maine bar in 2009
On October 15, 2010, Kress was administratively suspended by the Board due to CLE deficiencies and his failure to register and pay the fees required by the Maine Bar Rules. These failures constituted violations of Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of the Maine Rules For Lawyers? Fund For Client Protection. Kress did not thereafter file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date.
On January 13, 2011, Bar Counsel docketed a sua sponte grievance complaint against Kress for his failure to comply with the affidavit requirements of M. Bar R. 7.3(i)(2)(A)(B) and M. R. Prof. Conduct 8.4(a). Despite the opportunity to do so, Kress did not file a response to the grievance complaint. On May 19, 2011 a panel of the Grievance Commission reviewed the file on Kress? conduct and found probable cause to believe that Kress had engaged in misconduct subject to sanction under the Maine Bar Rules.
On October 1, 2011, Kress was personally served with a copy of the Disciplinary Petition after he failed to respond to service by mail. As of the date of this hearing, Kress remains administratively suspended and has never filed an answer to the Disciplinary Petition. Further, he still has not filed any notification affidavit.
Kress violated Maine Bar Rule 2(c), 7.3(i)(2)(A)(B), and Maine Rules of Professional Conduct 8.1(b) and 8.4(a).
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Kress violated his duties to the legal system by failing to complete the annual registration requirements in 2010 and by failing to file the required notification affidavit once he was administratively suspended.
Kress? failure to complete the annual registration requirements in 2010 caused injury to the legal system. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There are no mitigating circumstances. There are several aggravating circumstances. Kress failed to respond to the mailing containing his annual registration materials. He failed to file an initial response to the Grievance Complaint. He failed to accept service by mail of the Disciplinary Petition, which then required Bar Counsel to incur the cost of serving him personally. Finally, he failed to file an Answer causing him to be defaulted and deemed to have admitted the above referenced misconduct.
The evidence supports a finding that Kress violated the Maine Bar Rules and the Maine Rules of Professional Conduct. The Panel concludes that the appropriate disposition of this case is a Public Reprimand to Michael L. Kress which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C) and (4). Bar Counsel shall deliver that Reprimand to Kress by U.S. Mail on this date.
For the Grievance Commission
Peter C. Fessenden, Esq., Chair
Martica S. Douglas, Esq.
Christine Holden, Ph.D.
Board of Overseers of the Bar v. Benjamin Y. Agress
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Docket No.: BAR-11-16
Issued by: Supreme Judicial Court
Date: January 24, 2012
Respondent: Benjamin Y. Agress
Bar Number: 004415
Order: Resignation
Disposition/Conduct: N/A
ORDER
This matter is before the Court to consider the voluntary resignation of Benjamin Y. Agress from the practice of law in the State of Maine. That resignation has been tendered by Mr. Agress, pursuant to M. Bar R. 7.3(g), by his Affidavit dated October 6, 20 II. The matter was heard in open court on January 24, 2012. Bar Counsel J. Scott Davis appeared for the Board of Overseers of the Bar. Benjamin Y. Agress, self-represented, appeared and participated by telephone from Naples, Florida. See M.R. Civ. P. 43(a).
The facts, which are not disputed, are as follows:
Benjamin Y. Agress was admitted to practice in Maine in 2008. Mr. Agress was administratively suspended by the Board on October 20, 2009 pursuant to M. Bar R. 6 and 12 and remains so suspended. On October 12, 2011 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Mr. Agress's resignation from the Maine bar.
Therefore, after a hearing on this date, it is hereby ORDERED:
Pursuant to M. Bar R. 7.3(g)(3), Benjamin Y. Agress's resignation from the Maine bar is accepted, to be effective immediately on the date of this Order. Within ten (10) days thereof, Mr. Agress shall also comply with and certify to the Court and to the Board of Overseers of the Bar his completion of all notification reporting requirements, or that none are so required, pursuant to M. Bar R. 7.3(i)(1).
As required by M. Bar R. 7.3(g)(3), Benjamin Y. Agress's resignation Affidavit dated October 6, 2011 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. However, should Mr. Agress seek reinstatement to the Maine bar, that Affidavit may then be made public without further order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
For the Court
Donald G. Alexander, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re David P. Mooney
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Docket No.: BAR-11-17
Issued by: Supreme Judicial Court
Date: January 31, 2012
Respondent: David P. Mooney
Bar Number: 003734
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Order
Upon the petition of David P. Mooney to be reinstated to the Bar of the State of Maine pursuant to M. Bar R. 7.3(j)(5), and with the support of the Board of Overseers of the Bar, it is hereby ORDERED that the petition is granted and David P. Mooney is reinstated to the Bar of the State of Maine.
FOR THE COURT
Jon D. Levy, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. Warren M. Turner
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Docket No.: BAR-11-15
Issued by: Supreme Judicial Court
Date: February 7, 2012
Respondent: Warren M. Turner
Bar Number: 001623
Order: Suspension
Disposition/Conduct: Failure to respond to clients; Failure to return client property; Failure to appear at Court; Failure to respond to Bar Counsel
ORDER of SUSPENSION
By filing dated October 14, 2011 the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order temporarily suspending Warren M. Turner from the practice of law in the State of Maine. Included with the Board?s Petition were related exhibits and an Affidavit of Assistant Bar Counsel. The Court notes that since October 18, 2011 Mr. Turner has been administratively suspended from practicing law due to his failure to renew his registration and complete the required continuing legal education to fulfill his license renewal requirements.
Subsequently, the Grievance Commission has authorized three cases for disciplinary hearing before the Court. Of note, Mr. Turner failed to respond to any of those grievance complaints-GCF # 11-192; 11-276; and 11-371. He also failed to answer the Board's Petition for Suspension. By Order issued October 24, 2011 this Court appointed a Receiver, Thomas G. Ainsworth, Esq. to assume responsibility for winding down Turner's practice.
For good cause shown by the Board, Warren M. Turner appears to have committed numerous violations of the Maine Rules of Professional Conduct, thereby serving as a threat to clients, the public and to the administration of justice. Those violations include Mr. Turner's failure to respond to client inquiries; return client files/property; appear at some District Court hearings; relinquish his complete client files and office computer and failure to file an affidavit in compliance with M. Bar R. 7.3 (i)(2) (A), (B). The Court finds that Mr. Turner's actions constitute multiple violations of the M. R. of Prof. Conduct, including 1.1; 1.3; 1.4; 1.15; 1.16; 8.1(b) and 8.4(a)(d).
Accordingly, this Court ORDERS that Warren M. Turner be suspended from the practice of law in Maine until further Order of this Court.
For the Court
Joseph J. Jabar, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. David E. Warren
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Docket No.: BAR-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 24, 2012
Respondent: David E. Warren
Bar Number: 002695
Order: Dismissal with Warning
Disposition/Conduct: Former MBR 3.13(a) - now MRPC 5.1(a) - requiring reasonable efforts to ensure law firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
ORDER ON REMAND
After hearing, and based on the findings and conclusions stated on the record, the Court ORDERS:
As to each of the named respondents, this proceeding is dismissed with a warning regarding the violation of the Bar Rule identified in the Law Court opinion. (See 2011 ME 124).
FOR THE COURT
Donald G. Alexander, Associate Justice
Board of Overseers of the Bar v. James T. Kilbreth III
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Docket No.: BAR-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 24, 2012
Respondent: James T. Kilbreth, III
Bar Number: 002891
Order: Dismissal with Warning
Disposition/Conduct: Former MBR 3.13(a) - now MRPC 5.1(a) - requiring reasonable efforts to ensure law firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
ORDER ON REMAND
After hearing, and based on the findings and conclusions stated on the record, the Court ORDERS:
As to each of the named respondents, this proceeding is dismissed with a warning regarding the violation of the Bar Rule identified in the Law Court opinion. (See 2011 ME 124).
FOR THE COURT
Donald G. Alexander, Associate Justice
Board of Overseers of the Bar v. Eric D. Atholz
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Docket No.: BAR-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 24, 2012
Respondent: Eric D. Altholz
Bar Number: 007289
Order: Dismissal with Warning
Disposition/Conduct: Former MBR 3.13(a) - now MRPC 5.1(a) - requiring reasonable efforts to ensure law firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
ORDER ON REMAND
After hearing, and based on the findings and conclusions stated on the record, the Court ORDERS:
As to each of the named respondents, this proceeding is dismissed with a warning regarding the violation of the Bar Rule identified in the Law Court opinion. (See 2011 ME 124).
FOR THE COURT
Donald G. Alexander, Associate Justice
Board of Overseers of the Bar v. Mark K. Googins
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Docket No.: BAR-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 24, 2012
Respondent: Mark K. Googins
Bar Number: 002985
Order: Dismissal with Warning
Disposition/Conduct: Former MBR 3.13(a) - now MRPC 5.1(a) - requiring reasonable efforts to ensure law firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
ORDER ON REMAND
After hearing, and based on the findings and conclusions stated on the record, the Court ORDERS:
As to each of the named respondents, this proceeding is dismissed with a warning regarding the violation of the Bar Rule identified in the Law Court opinion. (See 2011 ME 124).
FOR THE COURT
Donald G. Alexander, Associate Justice
Board of Overseers of the Bar v. Roger A. Clement Jr.
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Docket No.: BAR-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 24, 2012
Respondent: Roger A. Clement Jr.
Bar Number: 007421
Order: Dismissal with Warning
Disposition/Conduct: Former MBR 3.13(a) - now MRPC 5.1(a) - requiring reasonable efforts to ensure law firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
ORDER ON REMAND
After hearing, and based on the findings and conclusions stated on the record, the Court ORDERS:
As to each of the named respondents, this proceeding is dismissed with a warning regarding the violation of the Bar Rule identified in the Law Court opinion. (See 2011 ME 124).
FOR THE COURT
Donald G. Alexander, Associate Justice
Board of Overseers of the Bar v. Juliet T. Browne
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Docket No.: BAR-10-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: February 24, 2012
Respondent: Juliet T. Browne
Bar Number: 008261
Order: Dismissal with Warning
Disposition/Conduct: Former MBR 3.13(a) - now MRPC 5.1(a) - requiring reasonable efforts to ensure law firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
ORDER ON REMAND
After hearing, and based on the findings and conclusions stated on the record, the Court ORDERS:
As to each of the named respondents, this proceeding is dismissed with a warning regarding the violation of the Bar Rule identified in the Law Court opinion. (See 2011 ME 124).
FOR THE COURT
Donald G. Alexander, Associate Justice
Board of Overseers of the Bar v. Brian R. Olson
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Docket No.: BAR-96-4
Issued by: Supreme Judicial Court
Date: July 16, 1996
Respondent: Brian R. Olson
Bar Number: 000271
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Brian R. Olson
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Docket No.: BAR-96-4
Issued by: Supreme Judicial Court
Date: September 26, 1996
Respondent: Brian R. Olson
Bar Number: 000271
Order: Decision & Amended Order
Disposition/Conduct:
Board of Overseers of the Bar v. Eric B. Cote
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Docket No.: BAR-11-12
Issued by: Single Justice, Maine Supreme Judicial Court
Date: March 23, 2012
Respondent: Eric B. Cote
Bar Number: 001687
Order: Reprimand
Disposition/Conduct: Violation of MRPC 1.9 (Duties to former clients) and Conduct Prejudicial to the Administration of Justice
DECISION AND ORDER
A hearing was held concerning the information filed by the Board of Overseers of the Bar v. Eric B. Cote Esq. on November 8, 2011. The parties entered and filed with the Court a stipulation regarding most of the facts in this matter prior to the hearing conducted on March 15, 2012. Bar Counsel dismissed a second claim involving the same subject matter. The Board of Overseers of the Bar was represented by Aria Eee, Esq. and Mr. Cote represented himself.
Eric B. Cote has practiced law in Saco, Maine since 1977. He practices as a solo practitioner. Mr. Cote represented Rory Holland from October 2008 through April 2009 regarding a real estate partition action in which Mr. Holland was the defendant and Susan Varney was the plaintiff. Mr. Holland approached Mr. Cote one day in Biddeford District Court and asked Mr. Cote to represent Mr. Holland in the partition matter. Mr. Cote agreed to the representation on a limited basis. Mr. Cote did not agree to file an entry of appearance but agreed to advise and attempt to negotiate a settlement between Ms. Varney and Mr. Holland. Mr. Cote was successful and obtained a favorable settlement on behalf of Mr. Holland and Mr. Holland signed the settlement agreement. Sometime thereafter, Mr. Holland reneged on the settlement agreement and refused to cooperate in further settlement of the matter. Mr. Cote subsequently withdrew from the representation of Mr. Holland and did not charge him any money for the representation. Neither the initial representation nor the withdrawal is in writing. At a later point, Mr. Holland asked Mr. Cote to attend a hearing in Superior Court regarding the enforcement of the settlement agreement and Mr. Cote refused to attend. At that point Mr. Holland threatened to ?put a bullet in Susan Varney?s head and put a bullet in his head.? Mr. Cote reported the threat to Ms. Varney?s lawyer and she reported the threat to the police.
Approximately two months after Mr. Cote?s withdrawal from the case, Mr. Holland shot and killed Derek and Gage Greene. The shooting took place on June 30, 2009, and the grand jury returned an indictment on July 10, 2009. Mr. Holland was subsequently convicted of the murders and is serving a double life sentence.
From that time forward Mr. Cote engaged in an extensive investigation of Mr. Holland?s past. He is convinced Mr. Holland is a serial killer responsible for many deaths and in at least one case another individual was wrongly convicted of the crime. In addition, he represented Tammy Cole, the mother of the Greene brothers, in a wrongful death action against Mr. Holland. Mr. Cote acknowledges he obtained confidential information from Rory Holland. He knew what assets Mr. Holland owned and which were subject to encumbrances. Having dealt with Mr. Holland?s extreme behavior in the partition action, Mr. Cote was aware of Mr. Holland?s tendency toward violence and the manner in which he handled litigation. Mr. Cote embarked on a one-man crusade studying various missing persons records and attempting to connect Mr. Holland to other crimes. He also received access through Susan Varney to a home she had shared with Mr. Holland and obtained over sixty videotapes and a computer from that home. Mr. Cote then turned over the videotapes and computer to the police investigating the murders. Mr. Holland filed a motion to suppress regarding the tapes and claims he did not testify at the trial as a result of the ruling on the motion.
This Court finds that Mr. Cote has violated Rules 1.9 and 8.4(d) of the Maine Rules of Professional Conduct because he had confidential information from his representation of Mr. Holland which he used against Mr. Holland in the subsequent action.
The Court?s responsibility in this matter is to the public and in order to protect the public the Court orders a public reprimand to Mr. Cote. In his thirty-five years of practice, Mr. Cote has not had any disciplinary action against him and sincerely believes that he has done nothing inappropriate. Mr. Cote has become obsessed with the background and history of Mr. Holland and feels responsible for the deaths of the Greene brothers. He had an extreme reaction to the death of the brothers. A public reprimand acknowledges Mr. Cote?s wrongdoing. His wrongdoing is serious and his actions were detrimental to his former client. This Court also orders Mr. Cote to withdraw from any further representation of Tammy Cole and any further adverse action to his former client, Rory Holland.
FOR THE COURT
Warren M. Silver, Associate Justice
Board of Overseers of the Bar v. James B. Smith
Docket No.: GCF 92-G-22
Issued by: Grievance Commission
Date: February 1, 1994
Respondent: James B. Smith
Bar Number: 000350
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Miklos M. Pongratz
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Docket No.: BAR-11-18
Issued by: Maine Supreme Judicial Court
Date: April 19, 2012
Respondent: Miklos M. Pongratz
Bar Number: 009563
Order: Reprimand
Disposition/Conduct: Conduct prejudicial to the administration of justice; Inadequate communication regarding fees; Expanding scope of representation without Client's consultation
ORDER
On November 28, 2011, tbe Board of Overseers of the Bar commenced this attorney disciplinary action by filing an information pursuant to Maine Bar Rule 4(d)(8). The Court held a status conference on February 6, 2012. Thereafter, the parties informed the Court that they had agreed to the entry of an order resolving this matter. Accordingly, on March 26, 2012, the Court conducted an uncontested hearing at which Assistant Bar Counsel Aria Eee appeared on behalf of the Board, and Attorney Pongratz appeared on his own behalf. The hearing was also attended by Donna Bruton, a former client of Pongratz who filed the grievance complaint that resulted in this proceeding.
Based on the representation of the parties and the proposed order they submitted, the Court finds and concludes as follows: Pongratz was admitted to the Maine Bar in 2004. Since his admission, he has worked as a solo practitioner in Raymond, Maine. Pongratz maintains a general law practice with a concentration in criminal defense and family law. He was previously suspended from the practice of law by an order of this single justice dated June 8, 2010.
Bruton hired Pongratz in April 2008, following a very serious assault upon her by her husband. On April 25, 2008, Bruton executed a fee agreement with Pongratz to engage him to represent her in a divorce action. By the terms of the fee agreement, the two agreed on the scope of the representation and the costs associated with that representation. The scope of the representation was defined as "Divorce."
As the months went by, Bruton realized that the divorce was not progressing as quickly as she anticipated. Both she and Pongratz became increasingly concerned with the rising legal fees she continued to incur. Throughout their discussions, it was agreed that Pongratz would request an "attorney fee award" from the trial court, thus obligating the husband to pay Pongratz's fees. Bruton understood, however, that if her husband would not agree or was not ordered to pay attorney fees, the obligation was ultimately hers to pay. The husband never agreed to the divorce and the case did not progress to the point at which he would have been ordered to pay Pongratz's legal fees.
On December 9, 2009, Bruton instructed Pongratz to stop the divorce proceeding. By December 15, 2009, the parties executed a stipulation of dismissal and Pongratz's representation of Bruton ended.
In December 2010, Bruton filed both a petition for fee arbitration and a grievance complaint with the Board. In both filings, Bruton alleged that she had retained Pongratz to prosecute a divorce action, and that Pongratz overcharged her for his work and failed to properly expedite her divorce. Pongratz filed a timely response to both of Bruton's submissions. In those responses, he explained the details regarding his representation of Bruton and his billing and fee charges. Pongratz denied failing to exercise due care and diligence in acting as Bruton's attorney.
Prior to Bruton's filings, Pongratz initiated a small claims complaint against Bruton due to her failure to pay the balance owed toward her legal fees. By then, Bruton was no longer Pongratz's client and the two had very disparate views of the quality and cost of the representation he provided. In March 2011, a Panel of the Fee Arbitration Commission conducted a hearing on the petition filed by Bruton. Thereafter, the Panel issued a decision that reduced Pongratz's legal bill by approximately $3800, leaving a remaining balance of $7900.
Based upon the stipulations reached in this proceeding, the Court finds that over the course of his time as her attorney, Pongratz broadened the scope of his representation without Bruton's explicit agreement that he do so. The fee agreement limited the scope of representation to the divorce action. However, the Fee Arbitration Panel found that in addition to the services provided to Bruton in connection with the divorce, Pongratz also represented Bruton in a protection from abuse proceeding and as a victim and witness in a related criminal proceeding. Pongratz charged Bruton for his expanded work and, by doing so, violated then-applicable Maine Bar Rule 3.2(f)(4), for his failure to adequately address his client's concerns that the divorce was not proceeding expeditiously, and Rule 3.3(a)(1), for inadequately communicating to his client the fee consequences of the expansion of the scope of his representation of her. Pongratz also violated Maine Rule of Professional Conduct 1.2, by expanding the scope of representation without adequate consultation with the client, and Rules 1.5(a)(9), (10) and 1.5(b), by failing to modify the fee agreement to address and reflect that he and the client agreed to the expanded scope of representation. The rising legal fees, combined with what Bruton perceived as unexplained delays in the finalization of her divorce, caused Bruton to distrust the legal process and ultimately Pongratz's commitment to advocate for her. While Pongratz believed that he provided Bruton with quality representation, he failed to appreciate the stress to his client caused by the unresolved divorce proceeding, the unauthorized expansion of the scope of his representation, and the mounting legal fees that resulted.
For all of the above reasons, including the parties' agreement and the Board's assessment that a public reprimand is sufficient to assure that Pongratz will not commit similar violations in the future, it is hereby ORDERED and ADJUDGED that Attorney Miklos M. Pongratz is publicly reprimanded for his violation of the above-outlined conduct rules.
Dated: April 19, 2012
John D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Christopher M. Uhl
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Docket No.: BAR-11-8
Issued by: Associate Justice, Maine Supreme Judicial Court
Date: April 20, 2012
Respondent: Christopher M. Uhl
Bar Number: 007897
Order: Suspension
Disposition/Conduct: Criminal Convictions
Order of Suspension
As a result of the Court's Order of February 22, 2012 setting a hearing date of April 20, 2012, the parties waived presenting contested evidence at that hearing and agreed upon a proposed sanction Order. Bar Counsel J. Scott Davis appeared for the Board of Overseers of the Bar. Christopher M. Uhl, self-represented, appeared and participated by telephone from Boston, Massachusetts. See M. R. Civ. P. 43(a).
As stated in that February 22, 2012 Order, Mr. Uhl has admitted he violated M. Bar R. 3.1(a); 3.2(f)(1)(2)(3)(4); 7.3(d)(6); 7.3(i)(2) and M. R. Prof. Conduct 8.1(b); 8.4(a)(b)(c)(d) as charged in the Board of Overseers of the Bar's disciplinary information dated December 13, 2011.
Accordingly, it is HEREBY ORDERED that Mr. Uhl's suspension from practice imposed by the Court's Order of August 9, 2011 shall remain in effect for an indefinite period. Mr. Uhl is currently under a similar indefinite suspension from practice in the Commonwealth of Massachusetts. By his signed Waiver and Assent of March 27, 2012 in that jurisdiction and pursuant to Massachusetts Supreme Judicial Court Rule 4:01 Section 18(2)(b), Mr. Uhl may not seek reinstatement from his suspension in Massachusetts until May 2015. As a result of his July 28, 2010 tax evasion convictions in the U. S. District Court, District of Massachusetts, Mr. Uhl's two-year period of supervised release is currently scheduled to conclude on May 12, 2014.
Accordingly, Mr. Uhl may not file a petition for reinstatement to practice in Maine pursuant to M. Bar R. 7.3(j)(5) until May 1, 2015. In the event Mr. Uhl is reinstated to active practice in Maine, he shall be subject to the supervision and monitoring of a Maine attorney under such conditions and terms as then deemed necessary and appropriate by the tribunal.
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. J. William Batten, Esq.
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Docket No.: 11-143
Issued by: Grievance Commission
Date: May 1, 2012
Respondent: J. William Batten, Esq.
Bar Number: 000282
Order: Dismissal with Warning
Disposition/Conduct: Failure to be more diligent and communicative with a client, in violation of M. R. Prof. Conduct 1.3 and 1.4
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On May 1, 2012, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, J. William Batten, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on January 19, 2012.
At the hearing, Attorney Batten was represented by Attorney Phillip E. Johnson, and the Board was represented by Assistant Bar Counsel Aria Eee. Prior to the hearing date, the parties had submitted a stipulated report of findings and order for the Grievance Commission Panel?s review and consideration. Although Complainant Mark J. Pantermoller (Pantermoller) of Fairfield, Maine did not attend the hearing, Assistant Bar Counsel Eee had previously mailed a copy of the proposed report to him.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent J. William Batten, Esq. (Batten) of Waterville, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Batten was admitted to the Maine Bar in 1973 and he is currently engaged in private practice in Waterville, Maine.
On April 27, 2011 Pantermoller filed a grievance complaint against Batten. In his complaint, Pantermoller alleged that Batten neglected his legal matter and failed to respond to Pantermoller?s inquiries regarding that matter. In his responses to the grievance, Batten acknowledged that in May 2009 he did meet with Pantermoller related to a potential insurance claim. At that meeting, Batten agreed to review Pantermoller?s documents, conduct research and notify him whether he had a case.
At the time, Batten believed he was investigating the potential claim and had not yet accepted Pantermoller as an actual client. It is clear, however, that Pantermoller reasonably believed that he was Batten?s client and that an attorney/client relationship had been created. Batten now agrees and regrets that he failed to properly clarify to Pantermoller whether or not legal representation by Batten had commenced and that he delayed too long in conducting the research and completing his analysis. Despite Pantermoller?s subsequent inquiries, Batten agrees he also failed to timely or adequately respond to him. Approximately eighteen (18) months later, Batten informed Pantermoller that he was unable to assist or take action related to Pantermoller?s potential claim. Batten acknowledges that except for that initial review and some limited research, he took no concrete action concerning Pantermoller?s insurance claim.
The Panel notes, however, that Pantermoller apparently suffered no injury and the statute of limitations on any potential underlying legal action remains intact. These findings are consistent with the evidence adduced during a small claims proceeding initiated in January 20121 by Pantermoller in the Maine District Court. After an April 6, 2012 contested testimonial hearing, the court issued a Notice of Small Claims Judgment against Plaintiff Pantermoller and finding for Defendant Batten. The Panel also notes that after he terminated his relationship with Batten, Pantermoller secured the services of a new lawyer who is representing him in connection with the insurance claim.
Batten acknowledges that he should have much earlier informed Pantermoller what was occurring in the research and review of his legal matter. Batten accepts full responsibility for his delay and lack of communication concerning Pantermoller?s legal matter, and he has expressed appropriate remorse for creating distress and upset to Pantermoller. Batten acknowledges that his failure to be more diligent and communicative with Pantermoller was a violation of M. Rule Prof. Conduct 1.3 and 1.4.
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Batten?s above-outlined failures, Mr. Pantermoller experienced unnecessary delay and frustration in an already difficult and upsetting legal matter. The Panel notes that Batten has taken responsibility for his lapses and at the disciplinary hearing he apologized to Mr. Pantermoller for his actions.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Based upon the above-outlined facts, the evidence supports a finding that Batten engaged in minor misconduct, resulting in little to no injury to Pantermoller with little likelihood of repetition by Batten. See M. Bar R. 7.1(e)(3)(B). Batten acknowledges that his conduct was inconsistent with his obligations under Rules 1.3 and1.4 of the Maine Rules of Professional Conduct, and he accepts the Panel?s warning to refrain from failing to fully and more timely communicate his actions and intentions concerning matters involving future definite and/or potential clients.
Therefore, the Panel accepts the agreement of the parties, including Batten?s separately executed waiver of the right to file an Objection to the Warning, and concludes that the appropriate disposition of this case is a Dismissal with a Warning to J. William Batten, Esq. That warning is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B),(4).
For the Grievance Commission
William B. Baghdoyan, Esq., Chair
James A. McKenna, Esq.
John R. Hutchins
Footnotes
1This hearing panel notes that the preliminary review panel?s hearing authorization in this matter under M. Bar R. 7.1(d) occurred on September 19, 2011, well before Pantermoller?s small claims litigation had been filed, heard or decided.
Board of Overseers of the Bar v. Christopher J. Whalley, Esq.
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Docket No.: Bar-11-19
Issued by: Maine Supreme Judicial Court
Date: May 17, 2012
Respondent: Christopher J. Whalley, Esq.
Bar Number: 007370
Order: Dismissal
Disposition/Conduct: No misconduct.
Decision and Order
Five individual bar complaints were filed against Christopher James Whalley, Esq. Pursuant to an order of this court dated October 31, 2007, which was entered as a result of prior bar complaints, these matters were filed directly with the Court by Information. Hearings were held on April 24, 2012, and May 7, 2012, at the Penobscot Judicial Center in Bangor, Maine. The Board of Overseers of the Bar was represented by Aria Eee, Esq., and Whalley was represented by William B. Cote, Esq. The Court will address each complaint or group of complaints in turn.
Christiane Gilbert, formerly known as Christiane Gilbert-Smith, filed a grievance against Whalley during divorce proceedings against her then husband. Whalley represented Gilbert?s husband in the divorce and a protection from abuse matter. Gilbert was unrepresented in both matters. She filed the complaint against Whalley while the divorce and protection from-abuse matters were pending. Whalley?s client did not file a complaint against Whalley, nor did he testify at the disciplinary hearing. The only witnesses to testify concerning Gilbert?s complaints against Whalley were Gilbert, Whalley, and Whalley?s legal assistant, LeeAnne Spoon. The Board alleges that Whalley has violated Maine Rules of Professional Conduct 1.3 (requiring a lawyer to act with diligence and promptness); 1.4 (requiring a lawyer to communicate adequately with the client); 3.3(a)(1) (requiring candor toward the tribunal); and 8.4(a), (c), (d) (prohibiting a lawyer from violating any Rules of Professional Conduct; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and prejudicing the administration of justice).
The crux of Gilbert?s complaints are that Whalley did not respond to her or the court in a professional or timely manner, thus delaying the proceedings, and that he misrepresented her positions to the court. She also alleges that Whalley was held in contempt of court for not filing documents when required. She is further concerned about one particular continuance that Whalley filed that misstated the facts surrounding the continuance.
The Court finds the following. The divorce and protection from abuse proceedings were very difficult for Gilbert. In a separate criminal proceeding, Whalley?s client was convicted for his abuse of Gilbert. Her daughter?s safety and her finances were of the utmost concern to her. She filed her complaint with the Board while the divorce and protection from abuse matters were pending. This put Whalley in the difficult position of responding to the bar complaint while continuing to work with his client and Gilbert. In effect, he had to justify his actions to Gilbert through the Board?s inquiries while representing her husband. Bar Counsel?s request for information and the responses it required hampered Whalley in the court proceedings and made communication with Gilbert more difficult.
In addition, Bar Counsel was also concerned about a request for a continuance, signed by Whalley, that LeeAnne Spoon cut and pasted from another request. The continuance request as drafted was inaccurate, but was later corrected by Whalley for the benefit of the court and to clarify a misunderstanding.
The Court finds that any incorrect communications by Whalley to Gilbert or to the court were not intentional, and it is not even clear that all of the communications were incorrect. The Court notes that no court personnel, including judges, magistrate judges, or clerks, testified on behalf of the Board. The Board did not prove there was ever a contempt proceeding against Whalley. In fact, Gilbert?s divorce proceeded relatively quickly through the court system, given that it involved a child and a parallel protection from-abuse matter. The Court recognizes the difficulty of a solo practitioner attempting to handle matters on a low-cost basis and dealing with an unrepresented adversary who was under a great deal of stress. While the Court does not condone sloppy work by Whalley or his staff, his error does not amount to an intentional misrepresentation to the court.
The Court finds that the Board has failed to prove that Whalley has violated the Maine Rules of Professional Conduct regarding Gilbert.
Clarence Hardwick filed a bar complaint against Whalley for Whalley?s representation of his client, who is a friend of Whalley?s. Hardwick was an unrepresented defendant opposing Whalley?s client. Hardwick alleges that Whalley misrepresented a proposed settlement to the small claims court and intentionally did not send Hardwick copies of court filings. Whalley?s client did not file a complaint against Whalley, nor did she testify at the disciplinary hearing. Only Hardwick, Whalley, and LeeAnne Spoon testified concerning this matter. Bar Counsel alleges that Whalley has violated Maine Rules of Professional Conduct 1.3 (requiring a lawyer to act with diligence and promptness); 3.1 (requiring a lawyer to communicate adequately with the client); 3.3(a)(1) (requiring candor toward the tribunal); 4.1(a) (requiring a lawyer to be truthful in statements to third persons); and 8.4(a), (c), (d) (prohibiting a lawyer from violating any Rules of Professional Conduct; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and prejudicing the administration of justice).
The Court finds the following. This small claims case between Whalley?s client and Hardwick involved a perfect storm of errors. Unfortunately, Whalley?s client gave him an incorrect address for Hardwick. Due to the client?s mistake, Whalley?s communications to Hardwick were sent to 215 Mud Creek Road rather than Hardwick?s correct address of 211 Mud Creek Road. This matter was further complicated when Hardwick moved during the litigation to Hancock, Maine. Whalley sent Hardwick materials as required by court rules, but to the incorrect address. The materials were never returned to Whalley and he had no way of knowing he was sending materials to an incorrect address.
The more serious allegation is that Whalley purposely misrepresented to the court that Hardwick settled the claim for $600. Hardwick contends that the claim was not actually settled. Whalley?s subsequent actions appear to be consistent with his view that the case was settled for $600, even though that was not, in fact, the case. There does not appear to be any reason why Whalley would intentionally misrepresent to the court that the case was settled. The Court notes that Whalley was filing this action on behalf of a client whom he represented pro bono. If the Board?s claim is that Whalley was incorrect in his understanding of the disposition of the case, misunderstanding is not a violation of the Rules of Professional Conduct.
Accordingly, the Court finds that there was no intentional wrongdoing by Whalley, and that Whalley has not violated any Rules of Professional Conduct regarding Hardwick.
Sharon Closson is the mother of Laurie Ward and Jessica Meyer. All three clients have filed bar complaints against Whalley for his joint representation of them beginning in 1992. The Board alleges that Whalley has violated then-applicable Bar Rules 3.1(a) (prohibiting a lawyer from violating any Bar Rules); 3.2(f)(3), (4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and from prejudicing the administration of justice); 3.4(a)(4) (requiring a lawyer to return the client?s file upon termination of representation); 3.4(c) (prohibiting a lawyer from representing current clients with unwaived conflicts of interest); 3.6(a) (requiring a lawyer to use reasonable care and skill in the performance of professional services); 3.6(e)(2)(iv) (requiring a lawyer to promptly return the client?s property); and Maine Rules of Professional Conduct 1.3 (requiring a lawyer to act with diligence and promptness); 1.4 (requiring a lawyer to communicate adequately with the client); 1.15(b)(2)(iv) (requiring a lawyer to promptly deliver client?s property upon request); 1.16(d) (requiring a lawyer to properly notify client and protect client?s interests once representation has ended); and 8.4(a), (c), (d) (prohibiting a lawyer from violating any Rules of Professional Conduct; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and prejudicing the administration of justice).
Closson, at one time, lived with Danny Jacobs and ran a business with him. Danny is the father of Jessica Meyer and Leon Jacobs, Meyer?s half brother. In 1992, Closson and Ward hired Whalley to represent them and Meyer, who was still a minor, in a civil matter against Danny and Leon. Closson alleged that Danny sexually, mentally, and physically abused her, and that she did not receive compensation due her from their business. Ward alleged that Danny sexually abused her. Meyer alleged that Leon sexually abused her. Whalley entered into a contingent fee agreement with Closson and Ward to represent them and Meyer. The court held a bench trial in 19981. Leon defaulted and Danny appeared but was unrepresented. The court entered a judgment for Closson against Danny in the amount of $10,000; for Ward against Danny in the amount of $125,000; and for Meyer against Leon in the amount of $75,000.
The Board and Whalley?s clients now claim that there were conflicts of interest among the clients, poor trial management, and poor trial skills by Whalley in the 1998 trial, and that Whalley failed to collect on the judgments. They also allege that Whalley failed to return their files when the clients asked him to do so.
The Court finds the following. Pursuant to the trial judge?s request, Closson and Ward waived their conflicts in writing to the court during the trial. Meyer wrote in her bar complaint that she ?will never disagree about the strength of the woman I was raised by,? indicating to this Court that neither daughter ever wanted to, nor currently wants to, sue their mother. Closson, Ward, and Meyer never indicated to this Court that they were in any way adverse to one another. Therefore, this Court finds that no conflict existed and that Whalley did not violate any Rules of Professional Conduct or its predecessor rules by representing them jointly. The Court finds that Whalley?s trial management in the 1998 trial did not violate the Bar Rules then in effect, despite the concerns expressed by Whalley?s clients.
The three clients also allege that Whalley has mishandled their claims post judgment. Whalley testified that after he received the judgments he made it clear to his clients that it made no financial sense to proceed with collection of the judgments. The court finds Whalley?s testimony credible and reasonable on this point. The contingent fee agreement signed by Closson and Ward on May 22, 1992, entrusts Whalley with the decision to move forward with collection by stating that the client ?empowers Attorney to effect a compromise in such matter or institute such legal action as may be advisable in Attorney?s judgment.? Whalley?s belief that pursuing collection would be fruitless is evident in that he received an ex parte attachment in a large amount prior to the trial, but did not request a writ of execution after the trial. He made no effort of any kind to collect on these judgments.
Starting in approximately 2001, and more pressingly starting in 2009, Closson and/or Ward contacted Whalley several times about collecting on the judgment against Danny through a lien, which they thought had been placed on Danny?s property in Bass Harbor, Maine, on Mount Desert Island. Testimony at the April 24, 2012, and May 7, 2012, hearings indicated that this property was the only asset in Danny?s name. Meyer also inquired about collecting on the judgment against Leon from an inheritance that Leon had received from his mother. Ward and Meyer became increasingly concerned that Whalley was not collecting on their judgments.
Whalley?s contention is that he never intended to collect on the judgments, and he testified that he made that very clear to Closson and Ward at the conclusion of the trial in 1998. Whalley testified that he did not want to file any kind of lien post judgment on Danny?s property for strategy reasons and he did not want to proceed later against Leon?s inheritance from his mother because his attorney client relationship had ended and any efforts to collect would be futile. The Court cannot think of any strategy that would not include filing some type of lien on Danny?s property. This was not good strategy on Whalley?s part, but poor strategy is not a violation of the Maine Rules of Professional Conduct, or its predecessor rules. Whalley was remiss in not recognizing that their expressions of concern about collecting the judgment may have meant that they did not understand that the attorney client relationship had ended. He did not make clear to his clients that the expense of collection would outweigh any recovery. Nonetheless, his failure to memorialize those communications does not amount to a violation of the Rules of Professional Conduct.
The remaining allegation relates to the clients? file. The Court heard testimony about the clients arranging to pick up their file from Whalley, but neither Closson, Ward, nor Meyer ever picked up the file. In fact, after Whalley prepared the file to be picked up, it sat in his office for over a year until the first day of the disciplinary hearing, when Whalley turned it over to the clients. The clients were concerned about the return of their file in order to protect their rights, but very few pieces of paper in the file were necessary for them to proceed. Closson?s business records from the 1990s and their personal diaries were important to the clients, but they are not important for legal purposes. The judgment would have enabled them to proceed with another attorney. Meyer let valuable time expire by not proceeding against Leon?s inheritance with another attorney, but her decision not to do so is no fault of Whalley?s.
The Court notes that the civil case against Danny and Leon was a very difficult undertaking. There appears to be no insurance and Danny?s only apparent asset was the land in Bass Harbor. Whalley represented Closson, Ward, and Meyer through trial and through a partial appeal to the Supreme Judicial Court. He prepared for trial several times, as the case was not reached on several occasions. Whalley received no payment for any of his work. He did receive some reimbursement for costs. These clients were aware of their low likelihood of success, as Closson and Ward signed a letter to the court during trial acknowledging that ?recovering damages could prove difficult or impossible.? Closson, Ward, and Meyer mistakenly believe that Whalley should work for them to collect the judgments no matter what the legal cost. They do not want to or cannot afford to pay anyone else to collect them. At this point, it is unlikely any other attorney will take this on because the fees and costs associated with collecting a judgment of any kind may cost more than the amount recovered.
The Court finds that Whalley?s judgment in the matter was clouded by his sexual relationship with Closson, which ended sometime in 1999. There was conflicting testimony about when it ended but more important is that Whalley used poor judgment in entering into a sexual relationship with Closson while he was representing her. The Board does not allege that this dual relationship violated any rules, but it is clear to the Court that in this case, Whalley blurred the lines between a personal relationship and professional legal representation. Among other things, the dual relationship with Closson caused him to be casual in his communications with all three clients, to the detriment of all involved. Better practice would have been for Whalley to have (1) notified his clients in writing after the judgments that he would not take any further action on their behalf, (2) maintained more formal relationships with his clients, and (3) been careful not to blur professional and personal relationships. This does not mean Whalley should not represent friends, but he cannot let his personal relationships with his clients interfere with his duties to act professionally and to clearly manage his clients? expectations at all times.
Accordingly, the Court finds that Whalley has not violated any Rules of Professional Conduct, or its predecessor rules, regarding Sharon Closson, Laurie Ward, or Jessica Meyer.
It is important to recognize that Whalley has been subject to disciplinary action before. The current complaints against him suggest that Whalley?s judgment may have been questionable in some respects, but the most concerning of the events in these matters occurred prior to the most recent disciplinary action in 2007. Pursuant to that action, Whalley has been subject to a series of conditions imposed by the Court. His compliance with those conditions signals to the Court that, since 2007, Whalley has a better understanding of the Rules and his obligation to adhere to them. The fact that Whalley has been subject to discipline before does not heighten the ethical standard that he is now held to as an attorney. Simply put, the actions that gave rise to these bar complaints, while regrettable, have not violated the Rules of Professional Conduct or Bar Rules.
The Court further amends its ORDER of October 31, 2007, and now ORDERS that any pending grievances or future grievances proceed pursuant to the usual procedures as provided in the Maine Bar Rules, and not through an action directly to this Court.
Warren M. Silver, Associate Justice
Footnotes
1 Sometime between 1992 and 1998, Danny was criminally convicted for his abuse of Ward.
Board of Overseers of the Bar v. Ralph A. Dyer
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Docket No.: GCF# 09-426
Issued by: Panel C of the Grievance Commission
Date: May 18, 2012
Respondent: Ralph A. Dyer
Bar Number: 000861
Order: Reprimand
Disposition/Conduct: Knowingly making a false statement of fact concerning the qualifications or integrity of a judge
OPINION AND DECISION OF PANEL C
On November 14, 2011, with due notice, Panel C of the Grievance Commission conducted a public hearing in Portland, Maine, pursuant to Maine Bar Rule 7.1(e)(2), on the amended petition of the Board of Overseers of the Bar (also, the Board or Bar Counsel) dated April 4, 2011 seeking the imposition of discipline on Respondent Attorney Ralph A. Dyer for alleged misconduct. Panel members were Ann M. Courtney, Esq., Acting Chair Peter C. Fessenden, Esq., and Lay Member Michael K. Knowles.
At the hearing, the Board was represented by Assistant Bar Counsel Jacqueline L. L. Gomes. The Respondent appeared pro se.
The notice of hearing was dated September 29, 2011. It required parties in interest to object to the composition of the panel before October 14, 2011. On November 3, 2011, Attorney Dyer filed an objection to the participation of Lay Member Michael K. Knowles, which motion was renewed orally at start of the hearing. The objection did not challenge Mr. Knowles? integrity, impartiality or independence. The gravamen of the motion was that Mr. Knowles was insufficiently ?lay? because his employment at the Bergen & Parkinson law firm did not create the necessary ?public perspective? contemplated by the Bar Rules. Mr. Knowles meets all of the standards of a ?lay member? of the Grievance Commission. In writing on November 9 and again at the hearing, the objection was overruled.
The Board called the Respondent as a fact witness and Phillip E. Johnson, Esq., as an expert and lay witness. Attorney Dyer testified on his own behalf.
Petitioner?s Exhibits P1 and P4 through P10 were admitted without objection. Petitioner?s Exhibits 2 and 3 were withdrawn after Respondent?s objection because they were incomplete; Respondent?s Exhibits R3 and R4 were complete copies of the documents withdrawn by the Petitioner. Respondent?s Exhibits R1 through R13 were admitted without objection. Respondent?s Exhibits R14 through R21 were reserved.
Each side submitted lengthy post-hearing argument and supplemental materials, all of which have been carefully reviewed and considered.
As presented during the travel of the hearing, the Board charged that Attorney Dyer violated Maine Bar Rules 3.1(a), 3.2(c), 3.2(f)(4), 3.7, and/or Maine Rules of Professional Conduct 3.5(d), 8.2(a), 8.4(a), and 8.4(d) by making false assertions of fact and/or other improper statements about the Superior Court trial justice in written argument submitted to the Law Court during or relating to his appeal and other post-trial proceedings from the Business Court?s rulings against Attorney Dyer?s client, Benjamin Hawkins, in Key Equipment Finance, Inc. v. Hawkins & Morse, and in TD Banknorth NA v. Hawkins & Morse. (The Maine Rules of Professional Conduct have superseded the Maine Bar Rules; the Respondent?s statements bridge the period of the two codes? applicability.) The statements for which the Board seeks to impose discipline were among those for which the Law Court imposed sanctions on Attorney Dyer on December 8, 2009 for ?unsupported accusations and aspersions that ? call into question the trial court?s independence and competence.? Key Equipment Finance Inc. v. Hawkins, 2009 ME 117, ?23, 985 A.2d 1139. (Mr. Morse did not file an appeal from the Business Court.) At the hearing, Bar Counsel pressed the Board?s complaint with respect to five statements made by Attorney Dyer in Appellant?s Brief dated June 1, 2009 (admitted at the hearing as Exhibit R3), and with respect to two statements made by Attorney Dyer in his motion to the Law Court for reconsideration (Exhibit R7) dated December 22, 2009.
The five statements at issue from Exhibit R3 read as follows. (We use the numbering set forth in the Board?s amended disciplinary petition.)
Statement 3. ?The Superior Court?s finding of no credible evidence to support Hawkins? contention can only be described as outright bias, extreme naivete [sic] or intentional disregard in order to simplify the instant court action. ? There is ample evide3nce [sic] within the September 22, 2008 and February 12, 2009 Decisions to believe that the Superior Court followed its own rule of substance over form, and he intentionally ignored the rule of law.? [Appellant?s Brief ? p.29]
Statement 5: ?Justice Nivison?s failure to recognize this point is so extreme as to raise suspicion of unacceptable bias or a desire to be rid of the case.? [Appellant?s Brief ? p.40]
Statement 6: ?The Superior Court has fabricated a set of facts to achieve a predisposed end. s [sic] comprised of far-fetched inferences drawn from the facts in evidence. The decision is almost completely a matter of speculation and fiction. A court of law is not the place to write fictional scripts[.] [Appellant?s Brief ? p.43]
Statement 7: ?Hawkins submits that the Superior Court must know that it completely mis-handled [sic] this case with contradictory, erroneous decisions by digging the hole deeper in the effort to resolve threshold errors.? [Appellant?s Brief ? p.43]
Statement 9: ?The actions of the Superior Court are marked by bias and incompetence. This kind of judicial anarchy is not consistent with the notion of substantive due process.? [Appellant?s Brief ? p.44]
The two statements at issue from Attorney Dyer?s motion for reconsideration (Exhibit R7) read as follows:
Justice Nivison?s analysis and his own questioning of Hawkins is [sic] taken as an indication to the undersigned of manipulation of fact by the court to achieve a desired outcome. [Motion of Ralph A. Dyer ? p.25]
Finding of fact number 19 is a critical fact in Justice Nivison?s analysis, and it is clearly and obviously in error. This mistake made by Justice Nivison cannot be considered a simple unintentional error. It is rational to conclude that Justice Nivison mis-stated [sic] or over-stated a crucial fact in order to achieve a desired outcome. [Motion of Ralph A. Dyer ? p.25]
The statements in Appellant?s Brief dated June 1, 2009 were made while the Maine Bar Rules were in effect. Those in the motion dated December 22, 2009 were covered by the Maine Rules of Professional Conduct.
Attorney Dyer readily agreed that each of the written statements to the Law Court were his. The gravamen of his defense is that either they do not violate any disciplinary rule or that the statements are protected speech under the rubric of New York Times v. Sullivan, 376 U.S. 254 (1964).
Attorney Dyer asserts three defenses. First, he says that the Board must prove his subjective intent to make false statements of fact or a reckless disregard of the truth or falsity of his statements concerning Justice Nivison?s competence and/or integrity.
Attorney Dyer?s second argument is that none of the statements is a statement of fact at all. Rather, they are statements of his own opinions, and as such are true statements of his opinion. He offers a detailed analysis of deductive and inductive reasoning, arguing that his statements to the Law Court are clear examples of the latter and concluding that statements based the inductive approach are necessarily ?opinions? which he sincerely held. He says that the prohibitions of Rules 3.2(c)(1) and 8.2(a) are inapposite because they do not apply to opinions, only to statements of fact.
Finally, and at great length, Attorney Dyer asks us to find that criticism of the judiciary without actual malice by members of the public, including members of the bar, is protected by the First Amendment. New York Times v. Sullivan, supra. He argues that the petition should be dismissed because an agency of the State of Maine cannot impose discipline for robust public criticism of a trial judge.
Attorney Dyer?s testified that he had no prior experience with the trial justice. During the extended litigation in Hawkins, Attorney Dyer came to perceive Justice Nivison as an inexperienced and incompetent jurist who failed to appreciate complex nuances within and between the Uniform Commercial Code and the Bankruptcy Code. He stated that the justice demonstrated bias and a lack of neutrality in his conduct of the case, and that Mr. Hawkins did not receive a constitutionally fair trial as a result. Attorney Dyer affirmed that his written submissions to the Law Court on appeal expressed his sincere subjective opinions on those matters, and that he continues to hold those opinions.
Attorney Philip Johnson testified as an expert witness and as a fact witness on behalf of the Board. In the former capacity, he stated that he viewed Attorney Dyer?s Statements 3, 5, 6, 7 and 9 as assertions of fact, that they were objectively false, and that they violated Maine Bar Rules 3.2(c), 3.2(f)(4) and 3.7. He opined further that First Amendment protections for lawyers are limited by applicable professional disciplinary rules when the attorney speaks or writes during a judicial proceeding.
As a fact witness, Attorney Johnson testified that the trial justice enjoyed a widespread reputation as a competent, knowledgeable and impartial jurist. Attorney Johnson has not practiced before Justice Nivison.
The thrust of the Board?s case is straightforward. It asserts that Attorney Dyer?s statements are objectively factual assertions and that they are false. It echoes Attorney Johnson?s opinion that attorneys relinquish some of their First Amendment rights when they go to trial.
Attorney Dyer provided the panel with lengthy pre- and post-hearing memoranda plus copies of 17 court decisions and scholarly articles. Bar Counsel submitted its own lengthy post-hearing memorandum and copies of 27 more cases in addition to those provided by Attorney Dyer. The Panel has carefully considered the testimony, evidence and argument of both sides and reviewed all of their supplemental submissions.
Maine Bar Rule 3.2(c)(1) and Maine Rule of Professional Conduct 8.2(a) are substantively similar. The former rule reads:
A lawyer shall not make a false statement of fact, with knowledge that it is false or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge or other adjudicatory officer in the court system or a candidate for election or appointment to office as a judge or other adjudicatory officer in the court system.
The current rule reads:
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
Maine Bar Rule 3.2(f)(4) and Maine Rule of Professional Conduct 8.4(d) are substantively similar. The former reads:
A lawyer shall not: ? Engage in conduct that is prejudicial to the administration of justice.
The latter states:
It is professional misconduct for a lawyer to: ? engage in conduct that is prejudicial to the administration of justice.
Maine Bar Rule 3.7(e)(2)(vi) reads:
In appearing in a professional capacity before a tribunal, a lawyer shall not: ? Engage in undignified or discourteous conduct that is degrading to a tribunal.
Maine Bar Rule 3.1(a) and Maine Rule of Professional Conduct 8.4(a) are substantively similar. The former reads:
? Violation of these rules shall be deemed to constitute conduct ?unworthy of an attorney.? ?
The latter states:
It is professional misconduct for a lawyer to: ? violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules ?
The issues in this case are complex and intertwined. The burden of proof is on the Board as to all factual issues. The standard of proof is a preponderance of the evidence.
Attorney Dyer does not dispute the fact that he made the seven statements for which the Board seeks to impose discipline. He maintains stoutly that the Board has failed to show that those statements were factual assertions, and ? if they were factual assertions ? that the Board failed to show that the statements were false or that they were made with reckless disregard as to their truth or falsity because he had an actual subjective belief that they were true. Finally, and in the alternative, he argues that his statements are constitutionally protected speech about a public figure on a matter of public importance under the rubric of New York Times v. Sullivan, 36 U.S. 254 (1964).
When valuing real estate, the three most important considerations are location, location, location. In determining whether an assertion should be viewed as a statement of fact or a statement of opinion, the three most important considerations are context, context, context. We decline Attorney Dyer?s invitation to engage in an esoteric analysis of inductive and deductive algorithms. It is sufficient for our purposes to examine the plain meaning of each statement in turn.
The first statement (Statement 3) appears in Appellant?s Brief on Appeal [Exhibit R3] as part of footnote 9 on page 29. In the first sentence (?The Superior Court?s finding of no credible evidence to support Hawkins? contention can only be described as outright bias, extreme naivete [sic] or intentional disregard in order to simplify the instant court action.?), we read the phrase ?can only be described as? to mean ?is? or ?equals? and directly equates Justice Nivison?s finding with outright bias, extreme naivet?, or intentional disregard. We find and conclude that the first sentence in Statement 3 is a statement of fact.
The second sentence (?There is ample evide3nce [sic] within the September 22, 2008 and February 12, 2009 Decisions to believe that the Superior Court followed its own rule of substance over form, and he intentionally ignored the rule of law.?) uses the words ?to believe? rather than ?can only be described as.? In the context of the entire footnote which states elsewhere that the court made inferences without itself citing to the record, the statement is clearly offered as a fact rather than a supposition. We find and conclude that the second sentence in Statement 3 is a statement of fact.
The second statement (Statement 5) in Appellant?s Brief on Appeal [Exhibit R3] on page 40 (?Justice Nivison?s failure to recognize this point is so extreme as to raise suspicion of unacceptable bias or a desire to be rid of the case.?) appears in the context of a lengthy paragraph that describes Key Equipment?s position as speculative and conjectural. In essence, he asserts that the only fair characterization of the trial court?s ruling is unacceptable bias. We find and conclude that Statement 5 is a statement of fact.
The third statement (Statement 6) (?The Superior Court has fabricated a set of facts to achieve a predisposed end. s [sic] comprised of far-fetched inferences drawn from the facts in evidence. The decision is almost completely a matter of speculation and fiction. A court of law is not the place to write fictional scripts[.]?) appears in Appellant?s Brief on Appeal [Exhibit R3] on page 43. The first two sentences are straightforwardly declarative. We find and conclude that they are statements of fact. The third and fourth sentences are mere hyperbole intended as argument; we do not construe them as statements of fact.
Statement 7 (?Hawkins submits that the Superior Court must know that it completely mis-handled [sic] this case with contradictory, erroneous decisions by digging the hole deeper in the effort to resolve threshold errors.?) is a close call. It appears in the conclusion section of the brief where an advocate is often tempted to thump the rhetorical tub. On balance, we find that Statement 7 is more rhetorical than assertive and was not intended to be and does not constitute an assertion of fact.
The fifth statement (Statement 9) in Appellant?s Brief, [Exhibit R3] page 44 (?The actions of the Superior Court are marked by bias and incompetence. This kind of judicial anarchy is not consistent with the notion of substantive due process.?) also appears in the brief?s conclusion. Concluding arguments are strongest when based on simple declarations. We find and conclude that the first half of Statement 9 is a statement of fact, while the second is flighty hyperbole.
Both statements at issue in Attorney Dyer?s December 2009 motion for reconsideration appear on page 25 of that document [Exhibit R7]. The first (?Justice Nivison?s analysis and his own questioning of Hawkins is [sic] taken as an indication to the undersigned of manipulation of fact by the court to achieve a desired outcome.?) appears at the end of a lengthy, tightly reasoned analysis of the evidence presented in the case. It was not central to Attorney Dyer?s argument on reconsideration. It is phrased as an opinion. We take it as unnecessary icing on his cake, but not as a statement of fact.
The second statement in the motion for reconsideration (?Finding of fact number 19 is a critical fact in Justice Nivison?s analysis, and it is clearly and obviously in error. This mistake made by Justice Nivison cannot be considered a simple unintentional error. It is rational to conclude that Justice Nivison mis-stated [sic] or over-stated a crucial fact in order to achieve a desired outcome.?) appears at the end of footnote 12, which is another lengthy, tightly reasoned analysis. Unlike the first, this statement is presented as the factual, not rhetorical, capstone. We find and conclude that it is a statement of fact.
Having narrowed the field of statements under examination from seven to five, we must determine if they are false. Or, more accurately, we must determine whether the Board has met its burden of proof that Attorney Dyer made ?a false statement of fact, with knowledge that it is false? (Maine Bar Rule 3.2(c)(1)) or ?a statement that the lawyer knows to be false? (Maine Rule of Professional Conduct 8.2(a)) or that he made those statements ?with reckless disregard as to its truth or falsity? all concerning the qualifications or integrity of Justice Nivison. Attorney Dyer further asserts that it is his subjective belief in the truth of those statements which should be examined, not whether they are objectively accurate.
Our determination that these five statements were ?statements of fact? structures the remainder of our analysis. The truth of those statements was presented to the Law Court by Attorney Dyer as the factual basis for his client?s appeal. He said, in essence, that the Law Court should reverse the lower court?s decision, not because of oversight, misunderstanding or error, but because Justice Nivison ?intentionally ignored the rule of law,? because Justice Nivison had ?unacceptable bias,? because Justice Nivison ?fabricated a set of facts to achieve a predisposed end,? because Justice Nivision was ?incompetent,? and because Justice Nivison did not commit ?unintentional error.?
Argument that the court below committed reversible error is routinely presented to the Law Court. Attorney Dyer?s presentation in Key Equipment Finance, Inc. v. Hawkins was unusual because of the putative causal link between the alleged failings of Justice Nivison and his decision. Attorney Dyer did not claim that the trial justice should be reversed because of his own subjective interpretation of the rulings below, but because (he said) Justice Nivison was biased, fabricated facts, and committed deliberate error. Those were objective assertions and should be examined accordingly.
In addition, courts in other states have adopted an objective standard in disciplinary proceedings regarding statements by lawyers against judges. See, e.g., In the Matter of Holtzman, 78 N.Y.2d 185 (1991), Ramirez v. State Bar of California, 619 P.2d 399 (Cal. 1980), and Anthony v. Virginia State Bar, 621 S.E.2d 121 (Va. 2005). As stated by the Supreme Court of Virginia, ?A lawyer?s right to free speech is ?extremely circumscribed? in the courtroom and, in a pending case, is limited outside the courtroom as well, to a degree that would not apply to an ordinary citizen. [citing Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)]? Anthony, at 126.
The Board offered Attorney Johnson?s lay testimony that Justice Nivison is a respected jurist with an established reputation for competence, integrity and impartiality. However, the Board offered no direct evidence as to whether Justice Nivison hewed to his standards of competence, integrity and impartiality in this superior court litigation, hence whether Attorney Dyer was accurate in his accusations of incompetence, fabrication and bias.
We were not presented with the complete record on appeal from the underlying Superior Court proceeding (Exhibit 5 contains only parts of the Appendix). We cannot determine for ourselves whether the entire record would support Attorney Dyer?s disparaging descriptions of the trial judge. Nonetheless, we do have Attorney Dyer?s Appellant?s Brief on Appeal [Exhibit R3], his Appellant?s Reply Brief on Appeal [Exhibit R4], and his Motion of Ralph A. Dyer Pursuant to M.R.App.P. Rule 14(b) for Reconsideration of Decision [Exhibit R7].
A brief to the Law Court must include a Statement of Facts, providing citations to the underlying record for any factual assertions. M.R.App.P. 9. Pages 10 - 22 of Attorney Dyer?s Appellant?s Brief on Appeal [Exhibit 3] set out 48 numbered paragraphs identifying specific facts on the underlying record from which his initial argument was crafted. His Appellant?s Reply Brief on Appeal [Exhibit 4] provides another four-plus pages, albeit unnumbered. (While it is not required that factual assertions made in the argument or conclusion of a brief or memorandum include citations to the record, it is good practice.)
We have carefully examined the hundreds of pages of exhibits provided to us for any objective support on the record that Justice Nivison was biased, that he intentionally ignored the rule of law, that he fabricated facts, or that he was incompetent. We found none. We scoured Attorney Dyer?s briefs and memorandum for any citations to objective evidence on the record for those descriptions. We found none. Since he asserted a causal link between Justice Nivison?s alleged bias, fabrication and incompetence and the decision in Key Equipment Finance Inc. v. Hawkins, Attorney Dyer?s failure to provide any objective foundation for that causal link gives rise to the necessary inference that none exists.
While the absence of anything at all on the record to establish Justice Nivison?s alleged flaws does not negate them beyond all doubt, we can and do reasonably infer that the five wholly unsupported statements of fact identified above made by Attorney Dyer about Justice Nivison?s qualifications and integrity were false to a preponderance of the evidence and testimony before us, and that each of those statement was made with reckless disregard as to its truth or falsity.
In reaching this conclusion, we are mindful of the Fifth Circuit decision in United States v. Brown, 72 F.3d 25 (5th Cir. 1995). In that case, Attorney Kidd was fined and suspended from practice for a year by the trial court for statements he made on behalf of his criminal client in motions for a new trial and judgment of acquittal notwithstanding the verdict. Specifically, Attorney Kidd alleged the following acts by the trial judge:
1/ He appeared not to be interested in anything that the defendant testified to;
2/ He appeared to give special attention to the witness of the Government;
3/ He seemed to have a mission of belittling, castigating, and otherwise discrediting defense counsel;
4/ He seemed to have anything but an even hand in addressing objections of the Government and of the defendant;
5/ He was partial to the government;
6/ He gave ? by gesture ? by facial expression ? and by oral comments ? the impression that he favored the government and disfavored the defendant; and
7/ He gave the jury the impression that he believed the testimony of the Government?s witnesses and simply tolerated the testimony of the defendant?s witnesses as something that was expected of them to say.
The Fifth Circuit reversed the trial judge?s decision. It held that Attorney Kidd ?should be free to challenge, in appropriate legal proceedings, a court?s perceived partiality, without ... [its being misconstrued] as an assault on the integrity of the court.? Attorney Dyer urges us to follow the Fifth Circuit?s wisdom in deciding his case.
Brown is distinguishable. The Fifth Circuit was strongly influenced by the nature of the sanction imposed by the district court judge. It noted, ?Because attorney suspension is a quasi-criminal punishment ?, any disciplinary rules used to impose this sanction ? must be strictly construed resolving ambiguities in favor of the person charged.? However, proceedings before a panel of the Grievance Commission are not quasi-criminal in nature. The court also said, ?Kidd?s comments about gestures, comments and inattentiveness made in the confines of the judicial process hardly equal ? [?accusations of dishonesty and corruption?].? Fairly read, Attorney Dyer?s charges against Justice Nivison are ?accusations of dishonesty.? Brown simply doesn?t apply to the case at hand.
We believe that the approach followed by the district court judge whom the Fifth Circuit reversed was correct. The trial court provided Attorney Kidd with a full opportunity to produce facts, references and citations on the record to justify his accusations. He failed to do so. The trial judge reached the same conclusion regarding Attorney Kidd as we do regarding Attorney Dyer: the accusations were unfounded and made with reckless disregard as to their truth or falsity.
In the absence of the First Amendment considerations raised by Attorney Dyer, our task would be shorter. Having found that five of the statements at issue were statements of fact, that they were false to a preponderance of the evidence, and that they were made with reckless disregard to their truth or falsity, we would ordinarily next determine if those statements violated any of the several rules cited by the Board. Before we can reach that point, we must determine whether the constitutional principles announced in New York Times v. Sullivan, 376 U.S. (1964), are within our jurisdictional purview.
Numerous courts have held that lawyers are not protected from professional discipline by the First Amendment. See, e.g., Gentile v. State Bar of Nevada, 502 U.S. 1030 (1991), United States v. Cooper, 872 F.2d 1 (1st Cir. 1989), Kentucky Bar Assn v. Waller, 929 S.W.2d 181 (KY. 1996), cert. denied 519 U.S. 1111 (1997), In the Matter of Lacey, 283 N.W.2d 250 (S.D. 1979). However, we are aware of only one decision at the Grievance Commission level which addressed the issue. Board of Overseers of the Bar v. Robert P. Brown, File #91-S-228, decided on June 17, 1992, cited State v. Nelson, 504 P.2 211 (Kan. 1972), when the panel ruled that a practicing attorney interacting with a court is held to a higher standard than an ordinary citizen exercising his or her First Amendment rights. The panel did not address whether the First Amendment defense was within its jurisdiction to consider.
We believe that the constitutional issues raised by Attorney Dyer are beyond the jurisdictional competence of a Grievance Commission panel of the Board of Overseers of the Bar under Maine Bar Rules 4(d), 7, or 7.1. While the Grievance Commission acts in a quasi-judicial capacity, it is an administrative body with no general jurisdiction to decide matters beyond those expressly delegated by the Law Court through the Board of Overseers. If Attorney Dyer wishes to maintain his constitutional challenge, he must do so in a judicial forum. We decline to address it.
We find that Attorney Ralph A. Dyer violated Maine Bar Rule 3.2(c)(1), Maine Rule of Professional Conduct 8.2(a), Maine Bar Rule 3.1(a) and Maine Rule of Professional Conduct 8.4(a) in making the five statements to the Law Court discussed above. Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. Assessing aggravating and mitigating factors is complicated because, while Attorney Dyer is wholly unrepentant, he has proceeded with the transparent belief that he was both correct and privileged under the Constitution to make the several statements. He is a long-standing and respected member of the bar who has never been disciplined for attorney misconduct. This proceeding was brought not as the result of any dishonest conduct or selfish motive, but because of his genuine albeit mistaken conviction that an attorney may accuse a judge of wrongdoing based on a subjective belief.
In light of the foregoing, the panel imposes a Public Reprimand upon Attorney Ralph A. Dyer for his conduct in violation of Maine Bar Rule 3.2(c)(1), Maine Rule of Professional Conduct 8.2(a), Maine Bar Rule 3.1(a) and Maine Rule of Professional Conduct 8.4(a).
For the Grievance Commission
PETER C. FESSENDEN, Esq., Acting Chair
ANN M. COURTNEY, Esq.
MICHAEL K. KNOWLES, Lay Member
Board of Overseers of the Bar v. Erika L. Frank, Esq.
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Docket No.: GCF No. 11-199
Issued by: Panel C of the Grievance Commission
Date: May 15, 2012
Respondent: Erika L. Frank, Esq.
Bar Number: 00836
Order: Reprimand
Disposition/Conduct: Diligence; Conduct prejudicial to the administration of justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On May 15, 2012 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Erika L. Frank, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 10, 2012.
At the hearing, Attorney Frank was pro se, and the Board was represented by Assistant Bar Counsel Aria Eee. Prior to the hearing date, the parties had submitted a stipulated report of findings and order for the Panel?s review and consideration. Although Complainant Dawn D. Dyer, Esq. (Attorney Dyer) of Windham, Maine elected not to attend the hearing, Assistant Bar Counsel Eee had previously provided her with a copy of the proposed Report.
Having reviewed the agreed proposed Report of Findings as presented by counsel, the Panel makes the following disposition:
Respondent Erika L. Frank, Esq. (Frank) of Windham, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Rules of Professional Conduct. Frank was admitted to the Maine Bar in 1996 and she is currently engaged as a solo private practitioner in Windham, Maine.
On June 3, 2011, pursuant to M. R. Prof. Conduct 8.3(a), Attorney Dyer filed a ?mandatory reporting? complaint against Frank. That complaint concerned Frank?s involvement in an April 2011 real estate closing concerning property located in Gray, Maine. Frank represented the buyers and served as the closing agent. As such, she was responsible to make all disbursements after closing. For a variety of reasons, none of which were intentional or fraudulent, Frank did not timely do so in violation of M. R. Prof. Conduct 1.3 (diligence) and 8.4(d) (conduct prejudicial to the administration of justice).
Among the disbursements Frank was required to make was the payoff of the seller?s outstanding mortgage. Frank?s initial attempt to do so included a mistake on the wire transfer sheet. Thereafter, interest on the balance accrued resulting in a higher payoff amount. Frank believed she made all possible efforts to correct the mistake as quickly as possible. After the mortgage was subsequently paid, Frank?s account no longer had sufficient funds to pay the real estate taxes and the neighborhood association fees. Those disbursements were also delayed, but Frank ultimately paid all monies owed to the various entities.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Frank?s above-outlined conduct, the seller?s obligations were not timely paid and a June 2011 tax lien was recorded on the property. However, Frank has taken responsibility for her lapses and at the disciplinary hearing she apologized for her actions.
The Panel notes that Frank was previously reprimanded in July 2009 for conduct related to conflicts, standards of care and judgment and conduct prejudicial to the administration of justice. Prior to that, in August 2006, Frank received a dismissal with a warning for her violations concerning client communication.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Based upon the above-outlined facts, the evidence supports a finding that Frank engaged in misconduct, resulting in distress to the sellers and a delayed completion of the real estate matter. Frank acknowledges that her conduct was inconsistent with her obligations under Rules 1.3 and 8.4 of the Maine Rules of Professional Conduct. Since the evidence of misconduct supports a finding and Attorney Frank agrees she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that its issuance of a reprimand should serve to adequately protect the public.
Therefore, the Panel accepts the agreement of the parties, including Frank?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Attorney Erika L. Frank. That reprimand is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C),(4).
For the Grievance Commission
Martha Gaythwaite, Esq., Chair
Peter Fessenden, Esq.
Richard P. Dana (layperson)
Board of Overseers of the Bar v. In Re Martin R. Johnson
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Docket No.: BAR-92-2
Issued by: Supreme Judicial Court
Date: January 18, 1995
Respondent: Martin R. Johnson
Bar Number: 001244
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Wayne R. Murphy, Esq.
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Docket No.: GCF No. 11-019
Issued by: Panel C of the Grievance Commission
Date: May 15, 2012
Respondent: Wayne R. Murphy, Esq.
Bar Number: 008226
Order: Reprimand
Disposition/Conduct: Failure to file "Notice Affidavit" after suspension; Failure to respond to Bar Counsel
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On May 15, 2012, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Wayne R. Murphy (Murphy). This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on January 9, 2012.
At the hearing the Board was represented by Assistant Bar Counsel Aria Eee. Murphy attended the hearing and represented himself pro se. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed Report for the Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Respondent Wayne R. Murphy of Boston, Massachusetts was, until the imposition of the Board?s October 2010 administrative suspension, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Murphy was admitted to the Maine Bar in 1991.
On October 15, 2010 Murphy was administratively suspended by the Board due to CLE deficiencies and his failure to annually register and pay the fees required by Maine Bar Rules Rules 6(a)(1), 10(a) and 12. Murphy did not then file the notice affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. By its certified letter of December 7, 2010, the Board notified Murphy of the consequence of his failure to file that required affidavit. Despite the Board?s mailing, Murphy apparently did not receive the Board?s notification and failed to meet his filing deadline of January 3, 2011.
On January 13, 2011, Bar Counsel docketed a sua sponte grievance complaint against Murphy for his failure to comply with the affidavit requirements of M. Bar R. 7.3(i)(2), such conduct being in violation of M.R.P.C. 8.4(a). Despite the opportunity to do so, Murphy did not respond to the investigation of that grievance matter. His failure in that regard constituted a violation of M. R. Prof. Conduct 8.1(b). Moreover, between his administrative suspension and the authorization of this matter for disciplinary hearing, Murphy was reciprocally disciplined by the Maine Supreme Judicial Court. By Order dated April 4, 2011 the Court issued a Suspension of Murphy based upon his multiple violations of Massachusetts Rules of Professional Conduct. Murphy has not applied for reinstatement and remains suspended in Maine.
On May 23, 2011 a Panel of the Grievance Commission reviewed Murphy?s actions related to the sua sponte complaint. Based upon that review and Murphy?s failure to respond, the Panel found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Murphy was subsequently notified of the Panel?s decision.
On January 9, 2012, the Board filed the Disciplinary Petition as directed by the review Panel. On February 4, 2012, the Suffolk County Massachusetts Sheriff?s Department personally served Murphy with a Summons and a copy of the Board?s Disciplinary Petition. On March 8, 2012, Murphy filed an Answer to the Disciplinary Petition. In the Answer, Murphy acknowledged his failure to fulfill the registration requirements, failure to respond to the correspondence regarding the suspension and grievance matters and his failure to file the required notice affidavit. Additionally, Murphy's Answer outlined the fact that he had no Maine clients or cases at the time of his suspension. No notices were required to be sent as he had no Maine clients, and no active appearances with any Maine state or federal courts or with any Maine agencies.
At the hearing Murphy informed the Panel that he had just filed a formal notice affidavit with the Court with a copy to the Board.
As a result of the above-outlined circumstances, Murphy?s conduct constituted violations of the following Maine Bar Rules and Maine Rules of Professional Conduct as set forth below: M. Bar R. 7.3(i)(2)(A)(B) and M.R. of Prof. Conduct 8.1(b); 8.4(a)(d). As a consequence of his suspension, he is not currently a licensed member of the Maine Bar.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The Panel notes that Murphy was reciprocally suspended in April 2011. Prior to that, in July 2007, Murphy received a reprimand in Maine for his violations of the Massachusetts Rules of Professional Conduct.
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to clients and the courts. Murphy violated his duties to the legal system by failing to complete the annual registration requirements in 2010 and by failing to file the required notification affidavit once he was administratively and reciprocally suspended. Murphy?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Therefore, the Panel accepts the agreement of the parties, including Murphy?s separately executed waiver of the right to file a Petition for Review. As a result, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Wayne Robert Murphy which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(C), (4). Additionally, Mr. Murphy remains suspended from the practice of law in Maine.
For the Grievance Commission
Martha Gaythwaite, Esq., Chair
Peter Fessenden, Esq.
Richard P. Dana (layperson)
Board of Overseers of the Bar v. In Re William F. Mackey, Jr.
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Docket No.: BAR-12-2
Issued by: Supreme Judicial Court
Date: May 31, 2012
Respondent: William F. Mackey, Jr.
Bar Number: 008530
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Order of Reinstatement
Upon the petition of William F. Mackey, Jr.. Bar # 8530, for reinstatement to the bar of the State of Maine pursuant to M. Bar R. 7 .3(j), and upon the unanimous vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Mr. Mackey's petition for reinstatement is granted without hearing.
Effective immediately, William F. Mackey, Jr., Bar # 8530, is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilities incident to bar membership.
Donald G. Alexander
Associate Justice,
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Ronald W. Dunbar, Jr.
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Docket No.: BAR-12-01
Issued by: Supreme Judicial Court
Date: June 7, 2012
Respondent: Ronald W. Dunbar, Jr.
Bar Number: 008442
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Order of Reinstatement
Upon the petition of Ronald W. Dunbar, Jr., Bar # 008442, for reinstatement to the bar of the State of Maine pursuant to M. Bar R. 7.3(j), and upon the unanimous vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Mr. Dunbar's petition for reinstatement is granted without hearing.
Effective immediately, Ronald W. Dunbar, Jr., Bar # 008442, is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilities incident to bar membership.
Joseph M. Jabar
Associate Justice,
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Richard L. Currier, Esq.
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Docket No.: GCF# 11-098
Issued by: Panel A of the Grievance Commission
Date: June 11, 2012
Respondent: Richard L. Currier, Esq.
Bar Number: 002245
Order: Reprimand
Disposition/Conduct: Threatening Prosecution; Conduct Prejudicial to the Administration of Justice
REPORT OF FINDINGS OF PANEL A OF THE GRIEVANCE COMMISSION
On May 24, 2012, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(c)(2), concerning the Respondent, Richard L. Currier, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar counsel on December 30, 2011, alleging violations of M. Bar R.3.1(a), 3.2(e)(4), and 3.6(c).
At the disciplinary hearing, the Board was represented by Special Bar Counsel Robert J. Stolt, and Respondent was present and represented by Malcolm Lyons, Esq. The Board's exhibits marked Board Exh. 1-8 were admitted without objection. No exhibits were present by Respondent, Richard L. Currier, Esq. The Panel heard testimony from Attorneys Jeffrey Pickering and Brian E. Swales (inactive).
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
Findings
Respondent Currier is, and was at all times relevant hereto, an attorney duly admitted to and actively engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules.
At the outset of the hearing, the parties stipulated to a finding that Respondent Richard L. Currier did in fact violate the Bar Rules as alleged and that upon the Panel's concurrence, the remainder of the hearing would focus on the appropriate disposition.
In May of 2007 Respondent Currier was retained by Alwilda A. Williams of Amity, Maine to review and investigate two real estate transactions to which she had been a party that involved Attorney Jeffrey Pickering, Esq. (Pet. Ex. 4-294). An initial letter was sent May 20, 2008 (Pet Exh).
Attorney Pickering subsequently replied to Respondent Currier by letter dated June 6, 2008 (Pet Ex. 5).
Subsequently by letter dated June 18, 2008, addressed to Attorney Pickering, Respondent Currier replied in strong language and concluded by stating "Failure to return the title to Mrs. Williams' land and discharge the mortgage on her home by July 3, 2008 will result in a civil action and Bar Complaint without further notice." (Pet. Ex. 6-299)
It is this language that Bar Counsel contends expressly violates Maine Bar Rules 3.1(a), 3.2f(4), and 3.6(c). We agree.
Conclusions
The Panel concludes that Respondent Currier has conducted himself in a manner unworthy of an attorney in violation of M. Bar R. 3.l(a) by threatening to present disciplinary charges, whether or not true, solely to obtain an advantage in a civil matter in violation of M. Bar R. 3.2(f) and 3.6(c).
The Maine Bar Rules specifically state that they are "intended to provide appropriate standards for attorneys with respect to their practice of the profession of law, including, but not limited to, their relationship with their clients, the general public, other members of the legal profession, the courts and other agencies of the State," M. Bar R. 2(a). However, the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable to discharge properly their professional duties.
Here, Respondent Currier was an established lawyer with 28 years of experience in the practice of law. It is of considerable concern to the Panel that Respondent Currier admitted that he was ignorant of Bar Rule 3.6(c) in 2008 and not truly aware of his explicit misconducts until sometime later in 2011. Further, he did not discuss this threatened grievance petition against Attorney Pickering with his partner or other legal counsel before acting upon it nine months later.
The Panel further concludes that Respondent Currier violated a specific provision of the Code of Professional Responsibility, namely the prohibition in M. Bar R. 3.6(c): "[a] lawyer shall not ... threaten to present ... disciplinary charges solely to obtain an advantage in a civil matter."
Sanction
In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1 (e)(3)(c):
(i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;
Respondent Currier's actions clearly violated his duties owed to the legal system and to the profession.
Further, Respondent Currier acted upon such threat nine months later. The Panel is unable to conclude that Respondent Currier's misconduct was minor.
(ii) whether the attorney acted intentionally, knowingly, or negligently;
The Panel concludes that Respondent Currier's conduct was intentional and that he acted negligently as he admits that he did not know of the Bar Rule in question. Respondent Currier now admits there is no other viable explanation of what other meaning or purpose his statement in the letter might have had.
(iii) the amount of actual or potential injury caused by the attorney's misconduct
Any economic injury caused by Respondent Currier's misconduct appears to have been relatively minor. Nonetheless, Attorney Pickering, the recipient of the letter, did engage an attorney who, among other things, cautioned Respondent Currier to temper his communications. Furthermore, the Panel concludes that Respondent Currier's letter and conduct caused considerable distress to the recipient over at least a nine month period. Attorney Pickering testified that Respondent Currier's misconduct caused him significant emotional distress, particularly in the nine month period between its being made and then acted upon. The Panel is therefore unable to conclude that "little or no injury" occurred.
(iv) the existence of any aggravating or mitigating factors.
The Panel finds that aggravating factors present in this matter include Respondent Currier's initial lack of recognition of his misconduct, and his initial lack of remorse. As a mitigating factor, the Panel notes that Respondent Currier in his testimony did express remorse for the misconduct. While the Panel believes that there is little likelihood that Respondent Currier will repeat this misconduct in the future, nonetheless the violation is serious, and not recognized by Respondent as such for over 3 years.
In view of the foregoing factors, the Panel concludes the appropriate sanction for Respondent Currier's misconduct is a public reprimand, in accordance with M. Bar R. 7.1(e)(3)(c).
Accordingly, it is hereby ORDERED that Richard L. Currier, Esq., shall be, and hereby is, reprimanded for his violations of Maine Bar Rules 3, 3.2(f)(4), and 3.6(c).
For the Grievance Commission
M. Ray Bradford, Jr. Esq.
Sarah McPartland-Good, Esq.
Norman Ross
Board of Overseers of the Bar v. Michael M. McAleer
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Docket No.: BAR-11-21
Issued by: Supreme Judicial Court
Date: June 14, 2012
Respondent: Michael M. McAleer
Bar Number: 003673
Order: Reprimand
Disposition/Conduct: Illegal Conduct; Failure to Respond to Bar Counsel; Failure to File Required Affidavit
DECISION AND ORDER
The Board of Overseers of the Bar initiated this attorney disciplinary action on May 18, 2012 by filing a disciplinary Information pursuant to M. Bar R. 7.2(b). Mr. McAleer responded with a timely Answer to the Board's Information. After pre-trial discussions, the parties notified the Court that they were in agreement to submit a proposed order providing for stipulated findings and sanction.
On June 14, 2012, counsel appeared before the Court to outline their proposal for resolution of this matter. The Board was represented by Bar Counsel J. Scott Davis, and Marvin H. Glazier, Esq. represented Mr. McAleer.
McAleer was admitted to the Maine bar in 1987. From his admission until his administrative suspension in October 2010, McAleer engaged in private practice in Bangor, Maine. The Court notes that except for this current action McAleer has not previously been disciplined for attorney misconduct.
Following a review of the pleadings and the parties' proposal, the Court finds and McAleer agrees that he engaged in specific violations of the formerly applicable Maine Code of Professional Responsibility and the current Maine Rules of Professional Conduct. The specific findings related to each count of the Board's Information are outlined below.
On January 13, 2011 Bar Counsel docketed a sua sponte grievance complaint as a result of McAleer's failure to file the "notification affidavit" as specifically required by Maine Bar Rule 7.3(i)(2)(A)(B).
By way of background, following his October 19, 2010 administrative suspension, even though McAleer had voluntarily refrained from representing clients or otherwise practicing law, he failed to file the "notification affidavit" as specifically required by Maine Bar Rule 7.3(i)(2)(A)(B). McAleer's suspension occurred as a result of his failure to file an annual registration statement and attain his required CLE hours. McAleer's failure to file the notification affidavit was a violation of Rule 7.3(i)(2)(A)(B). McAleer did not provide an answer to the sua sponte complaint regarding the affidavit. His failure to so respond to Bar Counsel constituted a violation of M. R. Prof. Conduct 8.1 (b).
On May 6, 2011, Bar Counsel docketed a sua sponte complaint against McAleer based upon his failure to file Maine tax returns and to pay Maine state income taxes for six years, 2003-2008. McAleer was charged by criminal complaint in 2009 and in April 2010 he pleaded no contest to the five charges. As a result of his pleas, McAleer was given a suspended jail sentence with probation. Additionally McAleer received a special condition to pay his Maine income tax. Since then, McAleer has successfully completed his probation. The Court finds that McAleer's criminal conduct and his failure to answer the sua sponte complaint constituted violations of M. Bar R. 3.1(a); 3.2(f)(2); and M. R. Prof. Conduct 8.1(b); 8A(a).
McAleer has committed serious violations of the former Code of Professional Responsibility and the current Maine Rules of Professional Conduct. As a result, the Court must consider an appropriate sanction. The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public.
Among the factors to be considered in imposing sanctions are the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7. 1 (e)(3)(C).
The first factor under the ABA Standards is to determine the duty that was breached. The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. McAleer violated his duties to the legal system by failing to complete the annual registration requirements in 2010 and by failing to file the required notification affidavit once he was administratively suspended. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. As well, any former clients of McAleer would need access to his contact information in order to access their files or related property.
The Court must also consider any mitigating and aggravating factors. There are mitigating circumstances here. McAleer reports that he has now filed all of his Maine income tax returns and that he is current on his payment of taxes. Additionally, McAleer suffers from debilitating depression and, at times, he is unable to address personal and required professional obligations. In that regard, McAleer failed to respond to the Board's mailing which contained his annual registration materials. He also failed to file responses to the Grievance Complaints.
McAleer acknowledges that he suffers from a disability and he is remorseful for his violations of the professional conduct rules. Moreover, the Court is aware that McAleer is not currently practicing law and he has affirmed that he does not intend to practice until he is cleared to do so by his physician. McAleer remains suspended from the practice of law in Maine.
Accordingly, the Court imposes upon Michael M. McAleer two Public Reprimands. In doing so, the Court approves the parties' agreement and ORDERS the following conditions in this matter:
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. C. Peter Bos, Esq.
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Docket No.: GCF No. 11-223
Issued by: Grievance Commission
Date: June 28, 2012
Respondent: C. Peter Bos, Esq.
Bar Number: 002951
Order: Reprimand
Disposition/Conduct: Standards of Care and Judgement/Neglect; Conduct Prejudicial to the Adminstration of Justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
On June 28, 2012, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, C. Peter Bos, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 11, 2012.
At the June 28, 2012 hearing, the Board was represented by Assistant Bar Counsel Aria Eee, and Attorney Bos appeared pro se. Additionally, the complainant, Thomas A. Cox, Esq., had been provided with a copy of the parties' proposed stipulated sanction Report in advance of the stipulated hearing.
Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent C. Peter Bos of Bangor, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the then applicable Maine Rules of Professional Conduct (M.R.P.C.) Attorney Bos was admitted to the Maine Bar in 1984, and he is currently registered as an active Maine attorney.
In April 2008, Attorney Bos began representing a vulnerable client (Ms. J) in what may be characterized as a predatory mortgage transaction. Although Attorney Bos did not originate the loan transaction, he did fail to properly advise Ms. J and protect her from the undue influence of a third-party, Mr. Hibbert.
In the years prior to this matter, Hibbert had increased his control over Ms. J's finances and assets. During the representation, Attorney Bos discovered a Lincoln County indictment related to Hibbert's theft from his mother. Attorney Bos acknowledges that in his first meeting with Ms. J and Hibbert, he noticed that Ms. J was heavily influenced by Hibbert. Attorney Bos agrees that he should have known his client was so vulnerable and impaired that the transaction about which he was advising her should have been terminated.
Attorney Bos knew that Hibbert would receive funds from Ms. J's mortgage loan. Bos wired those funds directly to accounts described by Hibbert without consulting Ms. J. Attorney Bos acknowledges his serious failure to protect Ms. J and her financial interests, and his inadequate representation of Ms. J caused her severe harm.
Finally, Attorney Bos' client file contained minimal information detailing his communications with Ms. J, his concerns about Hibbert, or any work he performed on this client's case.
Attorney Bos' actions during this representation constituted violations of then applicable M. Bar R. 3.6(a)(1)(2)(3) [standards of care and judgment/neglect] and 3.2(f)(4) [conduct prejudicial to the administration of justice].
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Bos' actions, Ms. J suffered extreme financial loss and was required to institute a lawsuit against Hibbert and Pioneer Capital Corporation in hopes of recovering some of her losses.
The Panel notes that Attorney Bos was publicly reprimanded in 2009 and again in 2011 for conduct similar in time and detail to that which is at issue here. In that regard, Attorney Bos' misconduct involving his misrepresentation of Ms. J occurred during the same time period in which Attorney Bos was struggling to manage his practice as discussed in those earlier reprimands.
Attorney Bos has made clear his sincere remorse for his poor handling of Ms. J's legal matter, and he has been cooperative in her successor counsel's efforts to recover her losses.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. The then applicable Code of Professional Responsibility specifically required attorneys to uphold their responsibilities to clients and the courts. Attorney Bos violated his duties to Ms. J by failing to properly advise her of the consequences of her mortgage transaction and the rights she was giving up based upon the type of mortgage it was. He also failed to discuss alternatives to this mortgage transaction. In turn, Ms. J was a susceptible consumer; the injury to her was severe, and the effects of the transaction were drastic.
There are some mitigating circumstances present. Attorney Bos candidly admitted his failures to safeguard Ms. J's interests. He explained that his misconduct occurred during a very difficult personal time, and he understands that while that is not an excuse, it does provide some context for his serious errors in the representation. Attorney Bos has also been cooperative with successor counsel's efforts to void the loan transaction. At the disciplinary proceeding, Attorney Bos apologized for his actions and accepted responsibility for his multiple violations of the then applicable Code of Professional Responsibility. Attorney Bos is also willing to extend the period in which his practice will be monitored by another Maine attorney.
There is also an aggravating circumstance. Attorney Bos has been disciplined before for conduct in 2009 and again in 2011 for conduct similar in time and detail to that which is at issue here.
Since the evidence of misconduct supports a finding and Attorney Bos agrees he did in fact violate the Code of Professional Responsibility, the Panel finds that its issuance of a Public Reprimand with continued monitoring of Attorney Bos' practice is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Bos' separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to C. Peter Bos, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
David J. Fletcher, Esq. Chair
Cynthia M. Mehnert, Esq.
Steven E. Diaz, MD, FACEP
Board of Overseers of the Bar v. Jeffrey W. Davidson, Esq.
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Docket No.: GCF No. 11-318
Issued by: Grievance Commission
Date: July 6, 2012
Respondent: Jeffrey W. Davidson, Esq.
Bar Number: 009579
Order: Reprimand
Disposition/Conduct: Respect for Rights of Third Persons; Professional Misconduct
REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
On June 28, 2012, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, Jeffrey W. Davidson, Esq, This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar counsel on September 30, 2011, alleging violations of M. Bar R.P.C. 4.4 and 8.4.
At the disciplinary hearing, the Board was represented by Bar Counsel Aria Eee, Esq. and Respondent was present and represented by Jeffrey Toothaker, Esq. The Board's exhibits marked Board Exh. 1-13 were admitted without objection. No exhibits were present by Respondent. The Panel heard testimony from the following witnesses:
Jeffrey W, Davidson, Esq.
Lieutenant Keith Albee
Lieutenant Mary C. Zidalis
Officer Allen Rolfe
Ricky A. Holmes
Aaron Wood
Captain Robert Gross
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
Respondent Jeffrey W. Davidson, Esq. of Machias, Maine, is, and was at all times relevant hereto, an attorney duly admitted to and actively engaged in the practice of law in the State of Maine and subject to the Maine Rules of Professional Conduct.
Respondent, Jeffrey W. Davidson, Esq., was admitted to the Maine Bar in 2004, and he is currently registered as an active Maine attorney. Previously, Respondent, Jeffrey W. Davidson, Esq., was admitted to and practiced law in Louisiana as an Assistant Public Prosecutor for seven years. He has no prior disciplinary record.
The Incident on September 27. 2011
Lieutenant Mary Zidalis ("Zidalis") of the Washington County Sherriff's Department filed a complaint regarding what she described as "offensive actions towards" her, through words and actions used by Attorney Davidson ("Davidson") on September 27,2011 at the Washington County Jail.
Zidalis was then waiting to be a state witness in the criminal trial of Chase Bellefountaine, Davidson's client, regarding charges for assault of another jail inmate.
Zidalis was a key witness in Davidson's defense of his client because of what Davidson perceived as flaws in her investigation. Zidalis and Davidson discussed the upcoming cross examination in the days before the trial at Davidson's office and Davidson let Zidalis know of his strategy.
Forty five minutes before the start of the trial, as Zidalis walked by Davidson, he spoke to her the words, "Have you ever been raped?" She responded that his question was a personal question. Davidson then commented, "Well, get ready because today will be your first time." or words to that effect. Zidalis then walked away and into a control room where she reported the remark to her colleague and then her superiors.
Zidalis and Davidson were not strangers to each other because they had had a joking, bantering, competitive relationship over several years, but his remark had a very unsettling effect upon her minutes before her testimony. Davidson views this as a joke that went too far, but the panel believes that the word "rape' in this setting was unsettling to her as a witness, as well as unprofessional and prejudicial to the administration of justice.
Subsequent events turned out to be beyond the control of either Zidalis or Davidson as the Sherriff of Washington County barred Davidson from entering the Washington County Jail through a letter which Davidson received on the day after the incident. Because of a reference to a possible criminal investigation for attempting to intimidate a witness, Davidson consulted outside counsel the next day after receiving the sheriff's letter and was advised not to speak with Zidalis and so he did not apologize to Zidalis, although he testified that he had intended to do so.
Davidson admits that he used the word "rape" in the context of Zidalis' upcoming testimony in their pre-trial conversation. His words had no substantial purpose other than to unsettle, if not intimidate, Zidalis, in violation Maine Rule of Professional Conduct 4.4(a). This constitutes professional misconduct under Maine Rule of Professional Conduct 8.4(a).
The panel finds that Davidson's misconduct in the context of this situation was not minor. There was emotional injury to a third party who is a law enforcement officer. Further, because it was directed to a witness in a criminal proceeding, there was injury to the legal system, as well as the profession. The panel did not hear sufficient evidence to draw a conclusion with respect to whether there is a likelihood of repetition, particularly where Davidson viewed his comment as a joke gone too far.
The Incident of December 6, 2011
In addition, Bar Counsel presented evidence that on December 6, 2011, Davidson called Zidalis a "bitch" in a conversation with another client, who was an inmate, because he thought that the client's arrival at court was delayed by Zidalis. While the remark was expected to be protected by the attorney-client privilege, this remark was reported to both Zidalis and the Sheriff. In the context of that remark, the panel understands Davidson's frustrations, but the evidence indicated that the delay was not caused by Zidalis. While we find his comment to be in extremely poor taste, we do not find the remark to be a violation of the rules.
Since the evidence of misconduct is clear and convincing so as to support a finding that Davidson did in fact violate the Maine Rules of Professional Conduct, the Panel finds that the appropriate disposition of this case is the issuance of a public reprimand, which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.l(e)(3)(C).
Grievance Panel A
M. Ray Bradford, Jr. Esq. Chair
Sarah McPartland-Good, Esq.
Norman Ross
Board of Overseers of the Bar v. Carolyn M. Asquith
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Docket No.: BAR-12-3
Issued by: Supreme Judicial Court
Date: July 9, 2012
Respondent: Carolyn M. Asquith
Bar Number: 009426
Order: Temporary Suspension
Disposition/Conduct: Neglect
ORDER OF TEMPORARY SUSPENSION
This matter is before the Court on the Board?s request for an expedited hearing on its motion asking the Court to temporarily suspended the respondent, Carolyn M. Asquith, from the practice of law. A telephonic hearing was held on July 9, 2012. Bar Counsel J. Scott Davis appeared on behalf of the Board and Attorney C. Walter Smith appeared on behalf of the respondent. Ms. Asquith did not appear.
For good cause demonstrated by the Board, it is hereby ORDERED that Carolyn M. Asquith is suspended from the practice of law effective immediately. A final hearing in this case is scheduled on July 26, 2012. The respondent is granted leave to request an expedited hearing if she moves to set aside the temporary suspension. Any such motion shall be supported by an affidavit establishing good cause for such relief.
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Daniel W. Mooers
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Docket No.: BAR-97-6
Issued by: Supreme Judicial Court
Date: August 22, 1997
Respondent: Daniel W. Mooers
Bar Number: 000460
Order: Reprimand Suspended Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Homer Waterhouse
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Docket No.: GCF# 96-S-225
Issued by: Grievance Commission
Date: April 17, 1997
Respondent: Homer Waterhouse
Bar Number: 000050
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Jacob Apuzzo, Esquire
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Docket No.: 93-K-36
Issued by: Grievance Commission
Date: July 12, 1994
Respondent: Jacob Apuzzo, Esquire
Bar Number: 002635
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Bruce S. Billings
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Docket No.: BAR-94-2
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 30, 1994
Respondent: Bruce S. Billings
Bar Number: 001997
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Martha J. Harris
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Docket No.: 93-S-136
Issued by: Grievance Commission
Date: August 11, 1994
Respondent: Martha J. Harris
Bar Number: 000156
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Mary-Anne Martell, Esq.
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Docket No.: GCF No. 11-319 & 11-382
Issued by: Grievance Commission
Date: July 24, 2012
Respondent: Mary-Anne Martell, Esq.
Bar Number: 008341
Order: Reprimand
Disposition/Conduct: Safe Keeping of Property; Diligence; Conduct Prejudicial to Administration of Justice; Communication; Improper Withdrawal
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION
On July 24, 2012, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E), concerning misconduct by the Respondent, Mary-Anne Martell, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 2, 2012.
At the July 24, 2012 stipulated hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Martell appeared with her counsel, Attorney Peter J. DeTroy. Additionally, complainant Donald Marean was present and given an opportunity to address comments to the Panel. Mr. Marean had been provided with a copy of the parties' proposed stipulated sanction Report in advance of the stipulated hearing.
Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Mary-Anne Martell of Westbrook, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Martell was admitted to the Maine Bar in 1996 and she is currently registered as an active Maine attorney. In February 2004 she established the Law Office of Mary-Anne E. Martell, P.A., and in August 2005 then created Seacoast Law & Title.
GCF #11-319 (sua sponte complaint)
This grievance complaint was generated by Bar Counsel due to various independent sources contacting Bar Counsel concerning the manner in which she had improperly handled clients' matters and fees at her office. Those sources were all attorneys that had formerly worked with Attorney Martell at Seacoast Law & Title Company.
As a result of those contacts, Bar Counsel conducted an investigation which included interviews of attorneys and staff formerly employed by Attorney Martell. They each separately reported similar mishandling of funds by Attorney Martell, summarized inter alia as follows:
? Concerns that clients' advanced fees were regularly placed in the firm's operating account;
? Mishandling of the IOLTA;
? Attorney Martell's failure to timely and properly provide an agreed upon and court-ordered check to opposing counsel;
? Threatening clients with withdrawal if more fees were not paid;
? Improper termination of attorneys' employment at Seacoast Law & Title with improper notification to and protection of all clients regarding those respective departures; and
? Specifically and by way of example, one of those formerly employed attorneys discussed at least two clients that had provided advanced fees to the firm. Each client later decided to not pursue their respective legal matter, resulting in a required return of each fee by Attorney Martell's firm. The reporting attorney recalled that it took more than a month on each occasion for each client to receive that refund from Attorney Martell, despite repeated requests from the attorney and each client. Each refund amount was approximately $300.00.
Upon being presented with Bar Counsel's complaint and investigation materials, Attorney Martell employed Attorney DeTroy. He submitted a thorough response that included an admission that Attorney Martell's conduct violated former Maine Bar Rule 3.6(e) and current Maine Rules of Professional Conduct 1.15.
It was apparent and confirmed by the many documents provided by Attorney DeTroy to Bar Counsel, and Attorney Martell further admits, that on several occasions she improperly transferred funds from Seacoast's IOLTA to the operating account. Likewise, she admits to having deposited advanced fees directly into the operating account. Although Attorney Martell reports having eventually reimbursed the IOLTA for all such advanced fee amounts and client funds, she still admits such action by her was wrong and constituted misconduct.
In addition, the documents confirm and Attorney Martell admits she periodically made personal contributions to Seacoast's payroll and overhead accounts, and thereafter would withdraw funds from Seacoast's operating account for personal expenditures. At times client's advanced fees were withdrawn for personal expenditures. Attorney Martell reports that all clients were compensated and made whole at the completion of Attorney Martell's handling of their respective legal matters. She agrees and admits that refund of amounts properly owed to clients was delayed due to her need to replenish those funds through personal contributions or receipt of other monies through flat fees or retainers. In that regard, Attorney Martell agrees that her allowance and involvement in the disorganization of the financial records at Seacoast caused the delay in returning unearned fees, including amounts owed to those attorneys that left employment at Seacoast. At the time of those occurrences, a universal protocol was not followed at Seacoast and the system that was used was ineffective in maintaining the proper handling and organization of Seacoast's clients' finances.
Attorney Martell admits and acknowledges that her conduct, specifically her failure to properly and consistently segregate and escrow monies in an IOLTA violated former M. Bar R. 3.6(e) and current M. R. Prof. Conduct 1.15.
She has, however, established procedures to rectify and prevent such misconduct. By April of 2011, Attorney Martell understood that the problems at Seacoast were matters she was unable to control. She then hired a business consultant to upgrade and correct office policies and procedures, improve associate attorney billing and collection issues, and provide general assistance with management of Seacoast Law & Title. In August 2011, she then hired a legal assistant to oversee the daily operations of Seacoast, e.g. the handling client file organization, invoicing, receipt of retainers, receipt of flat fees, and handling of all conflict checks. Attorney Martell no longer handles any of those administrative tasks. In addition, whenever funds are now withdrawn from the IOLTA, an invoice is generated to ensure any withdrawal is appropriate and to create an appropriate "paper trail."
Attorney Martell agrees that her actions with these monies and accounts constituted violations of initially applicable M. Bar R. 3.6 (a)(1)(2) [standards of care and judgment]; and M. Bar R. 3.6(e)[preserving identity of funds and property] as well as currently applicable M. R. Prof. Conduct 1.3 [diligence]; 1.15[safekeeping property]; and 8.4(a)(d)[general misconduct and conduct prejudicial to the administration of justice].
GCF #11-382 (Donald Marean, o/b/o Christine (Morin) Marean)
This grievance complaint was filed by Donald Marean for his daughter, Christine (Morin) Marean, concerning Attorney Martell, Christine's divorce attorney. Donald had direct involvement in this divorce, due to the terms of a "Waiver of Confidentiality" signed by Christine on July 25, 2011, the same day she signed the "Attorney Fee Agreement," hiring Seacoast Law & Title.
Donald's claims and concerns regarding Attorney Martell's misconduct are summarized as follows:
? Her failure to properly communicate with Christine - or him;
? Her termination of representation in Christine's divorce without adequate notice or basis, and failing to assist Christine to find successor legal counsel;
? Her failure to timely forward the file to Christine's new attorney and properly refund unearned fees; and
? Her failure to provide accounting statements to Christine, which was a specific term of their fee agreement.
Bar Counsel's investigation of the Marean complaint confirmed and it is now admitted by Attorney Martell that she improperly and unilaterally decided without discussion or agreement with Christine to end her representation of Christine. Attorney Martell also agrees she did not always properly communicate with Christine or Donald, failed to timely deliver Christine's client file to her new counsel and initially made an improper refund of unearned fees to Christine's new attorney instead of directly to Christine or Donald.
Attorney Martell agrees she engaged in misconduct in the handling of Christine Marean's divorce matter in violation of M. R. Prof. Conduct 1.4[communication]; 1.15(b)(2)(iii)(iv)[failure to provide accounting or timely delivery of client's funds]; 1.16 (c)(d)[improper withdrawal]; and 8.4(a)(d)[general misconduct and conduct prejudicial to the administration of justice].
The formerly applicable Code of Professional Responsibility and the current Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts.
Attorney Martell has made clear to the Panel her sincere remorse for her serious improper handling of her firm's financial records and accounts as well as the deficiencies in her handling of Christine Marean's family law matter. She directly apologized to Donald Marean at the hearing. Attorney Martell also then confirmed that she remains under a three-year contract with the Maine Assistance Program for Lawyers (MAP) to ensure that any emotional or related issues do not jeopardize or interfere with proper compliance with her professional obligations to her clients and to her profession.
As noted earlier in this Report, Attorney Martell has also taken significant steps and made important changes in her office management and operation procedures to correct her earlier financially related misconduct. Those changes and corrections will remain under watchful supervision and control for a significant period by Attorney Martell having agreed to submit her law practice to monitoring by Paul Driscoll of Portland, Maine. In that regard, the parties have executed a separate monitoring agreement with Attorney Driscoll which the Panel has reviewed and accepted as part of the disposition of this proceeding.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The Panel notes that Attorney Martell has no prior disciplinary or sanction record on file with the Board of Overseers of the Bar.
Attorney Martell apologized for her actions and accepted responsibility for her violations of the formerly applicable Code of Professional Responsibility and current MRPC. As noted earlier, Attorney Martell has agreed to have her practice monitored by another Maine attorney and is involved with the MAP.
Since the evidence of misconduct supports a finding and Attorney Martell agrees she did in fact violate the Code of Professional Responsibility and the Maine Rules of Professional Conduct, the Panel finds that its issuance of two separate Public Reprimands with monitoring of Attorney Martell's practice is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Martell's separately executed waiver of the right to file a Petition for Review. The Panel also specifically states and confirms Attorney Martell's agreement and understanding that any failure by her to continue and properly comply with her contractual engagements with either MAP or the monitoring agreement will subject her to Bar Counsel's initiation of a new grievance complaint against her under M. Bar R. 7.1 (b)(d).
The Panel thus concludes that the appropriate disposition of these two matters is the issuance of two Public Reprimands to Mary-Anne Martell Esq., which are now each hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Victoria Powers, Esq., Chair
David Abramson, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. Richard E. Bridges, Esq.
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Docket No.: GCF# 11-305
Issued by: Grievance Commission
Date: July 9, 2012
Respondent: Richard E. Bridges, Esq.
Bar Number: 002765
Order: Reprimand
Disposition/Conduct: Lack of Diligence; Lack of Communication; Excessive Fee; Failure to Return Client Property; Failure to Respond to Bar Counsel; Misrepresentations; Conduct Prejudicial to Administration of Justice
DECISION AND ORDER OF GRIEVANCE PANEL
A disciplinary petition was brought against the respondent, Richard E. Bridges on March 14, 2012 and was duly served upon him on March 15, 2012. Pursuant to the summons, the petition was due to be answered by the respondent within 20 days. No answer was received and the case was set for hearing on June 26, 2012.
The hearing was held on June 26, 2012 at the Board of Bar Overseers hearing room in Augusta, Maine before Grievance Panel D, consisting of William Baghdoyan, Esq., Chair, James A. McKenna III, Esq., and Kathleen A. Schulz, lay member. The Board was represented by J. Scott Davis and the respondent represented himself. Because no answer had been made to the petition by the respondent, the facts alleged in the petition and the misconduct alleged were accepted as admitted, pursuant to Maine Bar Rule 7.1(e)(1). The hearing thus concerned only the issue of what sanction, if any to impose.
Based upon the allegations in the petition that were not answered by the respondent, the panel finds the following facts:
Having found the above-cited violations of the Maine Rules of Professional Conduct, the Panel must decide upon what sanction if any to impose. The purpose of those rules is not to punish the attorney, but is rather to insure protection of the public from the misconduct of members of the Bar. The panel is particularly concerned that Attorney Bridges did not respond either to his client or to Bar Counsel. Attorney Bridges also never filed an answer to the petition. These failures indicate a lack of attention to the requirements of his legal practice. Although his marital difficulties may explain these lapses, it does not excuse them. The panel believes that the issuance of a Public Reprimand is appropriate, and such a Public Reprimand is hereby issued.
We also strongly recommend that Attorney Bridges seek the counsel and assistance of the Maine Assistance Program to help him maintain his professional responsibilities while at the same time dealing with the stresses of his personal difficulties.
For the Grievance Commission
William Baghdoyan, Esq., Chair, Panel D
James A. McKenna III, Esq.
Kathleen A. Schultz
Board of Overseers of the Bar v. Eugene E. Sordyl
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Docket No.: BAR-96-3
Issued by: Supreme Judicial Court
Date: March 5, 1996
Respondent: Eugene E. Sordyl
Bar Number: 000755
Order: Resignation
Disposition/Conduct:
Board of Overseers of the Bar v. Robert B. Patterson, Jr., Esq.
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Docket No.: GCF# 91-S-3
Issued by: Grievance Commission
Date: February 10, 1994
Respondent: Robert B. Patterson, Jr., Esq.
Bar Number: 001065
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Donald L. Philbrick
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Docket No.: GCF# 92-S-240
Issued by: Grievance Commission
Date: August 2, 1994
Respondent: Donald L. Philbrick
Bar Number: 001051
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Peter S. Plumb
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Docket No.: GCF# 90-K-29
Issued by: Grievance Commission
Date: October 31, 1991
Respondent: Peter S. Plumb
Bar Number: 001136
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: 96-G-41
Issued by: Grievance Commission
Date: August 1, 1997
Respondent: Thomas M. Mangen
Bar Number: 001743
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Earle S. Tyler, Jr.
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Docket No.: BAR 97-7
Issued by: Supreme Judicial Court
Date: December 19, 1997
Respondent: Earle S. Tyler, Jr.
Bar Number: 001745
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Earle S. Tyler, Jr.
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Docket No.: BAR 93-14; BAR 94-4
Issued by: Supreme Judicial Court
Date: October 24, 1994
Respondent: Earle S. Tyler, Jr.
Bar Number: 001745
Order: Suspended Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Michael G. Keefe, Esq.
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Docket No.: GCF# 12-018
Issued by: Grievance Commission
Date: August 28, 2012
Respondent: Michael G. Keefe, Esq.
Bar Number: 008736
Order: Reprimand
Disposition/Conduct: Diligence; Failure to Communicate; Expediting litigation
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On August 28, 2012, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7. 1 (e)(2)(E), concerning misconduct by the Respondent, Michael G. Keefe, Esq. The disciplinary proceeding was commenced by the Board of Overseers of the Bar's (the Board) June 11, 2012 filing of a Stipulated Disciplinary Petition.
During the hearing, the Board was represented by Assistant Bar Counsel Aria Eee and Attorney Keefe appeared pro se. The complainant, Nadine L. Tingley, attended the hearing and briefly addressed the Panel. Prior to that hearing, Assistant Bar Counsel Eee and Attorney Keefe submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Michael G. Keefe of Portland, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine, subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Keefe was admitted to the Maine Bar in 1998 and he works as a solo practitioner in Portland, Maine.
In July 2011 Ms. Tingley retained Attorney Keefe for two distinct family law matters. Upon her retention of Attorney Keefe, Ms. Tingley paid him "nonrefundable" fees totaling $3500. By the time of Ms. Tingley's January 2012 complaint filing with the Board, however, Attorney Keefe had performed insufficient work on her legal matters. In addition, Attorney Keefe had failed to respond to Ms. Tingley's repeated inquiries about the status of each matter.
Attorney Keefe acknowledges that Ms. Tingley hired and paid him for two concerns, one of which he considered to be a novel legal issue. In that regard, Attorney Keefe conducted necessary research and initiated contact with one of the other litigants. Attorney Keefe did not make any filings in the first legal matter and while he drafted the required paperwork for Ms. Tingley's legal separation, he likewise failed to file it in court.
Attorney Keefe has candidly accepted responsibility for his delays in finalizing Ms. Tingley's legal matters. While he intended to try to accomplish his client's goals of pursuing these actions within an expedient time frame, Attorney Keefe realizes that he failed to appreciate the limits of his availability to work within those time periods. Attorney Keefe has also admitted his failure to timely respond to Ms. Tingley's inquiries about her legal matters. He acknowledges the fact that his lack of contact and response proved stressful and frustrating to his client. Ultimately, Attorney Keefe withdrew from the representation and returned Ms. Tingley's files and retainer fees.
Based upon the above-outlined findings and the parties' agreement, the Panel finds that Attorney Keefe's actions during the representation constituted violations of Maine Rules of Professional Conduct 1.3 [diligence]; 1.4 [communication] and 3.2 [expediting litigation].
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Keefe's actions, Ms. Tingley suffered unnecessary distress and delays in pursuing her legal matters.
Attorney Keefe has readily accepted responsibility for his poor handling of Ms. Tingley's legal matters, and he has refunded all of her retainer monies.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances. See M. Bar R. 7. 1 (e)(3)(C); See also ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
Attorney Keefe violated his duties to Ms. Tingley by failing to timely perform legal services and adequately communicate with her. During the stipulated hearing, he straightforwardly agreed that his conduct was unprofessional and unfair to Ms. Tingley and he apologized to her for his professional failures.
There are some mitigating circumstances present. Attorney Keefe has never received professional discipline and he readily accepted responsibility for his failure to uphold their attorney / client relationship.
Since the evidence of misconduct supports a finding and Attorney Keefe agrees he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that its issuance of a Public Reprimand is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Keefe's separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Michael G. Keefe, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7. 1 (e)(3)(C), (4).
For the Grievance Commission
John C. Hunt, Esq., Acting Chair
Martica S. Douglas, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. Ronald G. Caron, Sr., Esq.
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Docket No.: BAR-12-7
Issued by: Supreme Judicial Court
Date: August 27, 2012
Respondent: Ronald G. Caron, Sr., Esq.
Bar Number: 001371
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Appointment of Limited Receiver, Sarah B. Neault, Esq., M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R 7.3(f), the Court Orders the following:
As of this date, Sarah Beth Neault, Esq. of Bergen & Parkinson, LLC is appointed the Limited Receiver of original Last Will and Testaments prepared by the late Attorney Ronald G. Caron, Sr. With the cooperation of Personal Representative Ronald G. Caron, Jr., Attorney Neault shall:
Attorney Neault has agreed to serve in a pro bono capacity and will not seek payment of legal fees for hours worked as the Limited Receiver.
Attorney Neault shall act as Limited Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R. 7.3(f).
Attorney Neault so appointed shall not disclose any information contained in any original Wills without the consent of the Testator/Testatrix, an heir, devisee, Personal Representative or a legal representative of the Testator/Testatrix or the Estate, to whom such Will relates, except as may be necessary to carry out an order of court including any order under M. Bar R. 7.3(f).
Furthermore, Attorney Neault may be engaged by any former client of Attorney Caron or the Estate provided that she informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Limited Receiver's employment by the client or the Estate. Attorney Neault is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Limited Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Neault's appointment by this Order.
Attorney Neault and Bergen & Parkinson, LLC shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Limited Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
For the Court
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Judith W. Thornton
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Docket No.: BAR-12-6
Issued by: Supreme Judicial Court
Date: August 6, 2012
Respondent: Judith W. Thornton
Bar Number: 003807
Order: Receiver Appointment
Disposition/Conduct: Appointment of Limited Receiver
Order for Appointment of Limited Receiver M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Robert J. Stolt, Esq. is appointed the Limited Receiver of (suspended attorney) Judith W. Thornton's law practice. Pursuant to this Order, Attorney Stolt shall:
Furthermore, Attorney Stolt may be engaged by any former client of Ms. Thornton provided that he informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorney Stolt is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Stolt's appointment by this Order. Attorney Stolt shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Once Ms. Thornton is served with this Order or otherwise becomes aware of it, she shall cooperate with any request by Attorney Stolt and the Board to assist with the delivery and disposition of her client files.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
For the Court
Ellen A. Gorman, Associate Justice Maine Supreme Judicial Court
Board of Overseers of the Bar v. George P. Kesaris, Esq.
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Docket No.: BAR-12-8
Issued by: Supreme Judicial Court
Date: August 23, 2012
Respondent: George P. Kesaris, Esq.
Bar Number: 002579
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Appointment of Receiver M. Bar R. 7.3(f)(1)
Upon this Petition for Appointment of Receiver filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Nathaniel R. Fenton, Esq. is appointed the Receiver of Attorney George P. Kesaris' law practice. With the cooperation of Personal Representative Philip Kesaris, Attorney Fenton shall:
As a service to the bar, Attorney Fenton has agreed to serve as this Receiver on a pro bono basis. He shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. Attorney Kesaris' Estate shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Kesaris? Estate, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Fenton shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Attorney Fenton so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney Fenton may be engaged by any former client of Attorney Kesaris' provided that he informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client.
Attorney Fenton is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Fenton's appointment by this Order.
Attorney Fenton shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Bar Counsel J. Scott Davis, Esq.
For the Court
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Robert C. Tommasino
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Docket No.: BAR-12-5
Issued by: Supreme Judicial Court
Date: September 4, 2012
Respondent: Robert C. Tommasino
Bar Number: 001796
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Order of Reinstatement
Upon the petition of Robert C. Tommasino, Bar # 1796, for reinstatement to the bar of the State of Maine under M. Bar R. 7.3(j), and upon the unanimous vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Mr. Tommasino petition for reinstatement is now granted without hearing.
Effective immediately, Robert C. Tommasino, Bar # 1796, is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilities hereto.
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Mary Huynh Thomas, Esq.
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Docket No.: GCF# 11-227; 11-250
Issued by: Grievance Commission
Date: August 2, 2012
Respondent: Mary Huynh Thomas, Esq.
Bar Number: 004115
Order: Dismissal Dismissal with Warning
Disposition/Conduct: Diligence; Candor to the Tribunal
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION
On July 24, 2012 with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing, open to the public, pursuant to Maine Bar Rule 7.1(e)(2). The disciplinary proceeding was commenced by the filing of a consolidated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 12, 2012. These petitions remained consolidated for hearing. The petitions allege violations of M. Bar Rules, 1.3; 3.3(a)(l); 4.2(a); 4.4(a); 5.3(b) and (c); 7.5(a) and (b) and 8.4(a), (c) and (d).
At the hearing, the Board was represented by Assistant Bar Counsel Aria Eee and the Respondent, Mary Huynh Thomas, Esq. was represented by Phillip E. Johnson, Esq. The complainant in GCF# 11-227, Attorney John Wilson was present as was Ryan R. Morneault, the complainant in GCF# 11- 250. The Respondent, Attorney John Wilson, Mr. Morneault, Attorneys Kari A. Wells-Puckett (KWP). Jeanine M. Dumont, Rita M. Farry, and David P. Florio testified. The Panel accepted into evidence Board Exhibits 1-34 Respondent Exhibits 8, 8a, 9, 9a, 16 and 17.
Respondent Mary Huynh Thomas of Portland, Maine, has been at all times relevant to the petitions an attorney admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Thomas was admitted to practice in 2007 and she is an associate with the law firm of Howard Lee Shiff, P.C. (the firm). Ms. Thomas is the only firm attorney licensed to practice in Maine.
Attorney Wilson filed a complaint on July 12, 2011 against the law firm of Howard Lee Shiff alleging that the firm had continued to directly contact his ninety-one year old client after the firm had received notice that his client was represented by Attorney Wilson. In early November, Attorney Wilson had sent a letter to HSBC Card Services (HSCB) outlining the facts which supported a finding that his client was "judgment proof' and requested that all further communication regarding the account be sent to him as counsel for the debtor. In late December 2010, HSBC contacted the law firm of Howard Lee Schiff, P.C. for representation. Jeanine Dumont, a principal in the firm testified that the firm is based in Rhode Island and all initial contact to attempt to collect from debtors is done through the Rhode Island office. She testified that there was no letter from Attorney Wilson forwarded from HSBC with the file.
Initial steps taken to collect the debt included sending a letter to the debtor requesting information to validate the debt. These letters are subcontracted out to an outside vendor for creation and mailing. The firm's protocol is to have the validation of the debt letter sent out under the letterhead of the corresponding state of the debtor. Due to an error on the part of the subcontractor, the letters to the debtor were inconsistent and were sent initially under the Portland, Maine letterhead but the second letter dated May 25, 2011 was on the Nashua, New Hampshire letterhead. Accordingly, on May 28, 2011 Attorney Wilson sent a letter to the Nashua office because it was the address of the last letter received by the debtor. He again reiterated his client's status and advised that the debtor was represented by his firm.
Attorney Florio, an associate in the Nashua office testified that he collects all of the mail that is delivered to his one person office in Nashua. He then removes the junk mail and sends the rest onto Rhode Island for central processing. He also occasionally opens mail that is from an attorney but has no memory of opening a letter from Attorney Wilson. All of the lawyers from the firm testified that when a letter is received from an attorney the first thing that all employees of the firm do is mark in the electronic file that the debtor is represented. In this case, such a notation was never made in the file until the bar complaint was filed.
It is unfortunate that Attorney Wilson's letter did not get delivered properly or more likely, processed correctly when received by the firm. There is no way, however, to conclusively determine which happened in this case.
Attorney Thomas was never personally responsible for sending any letters to the debtor. She testified that her involvement is only when a collection is sent to be collected through civil litigation. Since the debtor's file was never sent to the Maine office initially, the first time she knew of the debtor was upon receipt of the the bar complaint. Based on these findings, the Panel finds no misconduct on the part of Attorney Thomas and dismisses Count I.
The Board also alleges that the validation of debt letters sent to the debtor by the law firm violate Rule 7.5(a) and (b) because the letters are unsigned and did not identify a particular lawyer. The letters do provide the name of the firm and the many offices of the firm. The letters sent in this case were inconsistent in the identification of the proper office but that alone does not constitute a violation. Nor does the failure to designate an attorney associated with the office constitute a violation. The Panel does, however, recommend that the principals in the law firm of Howard Lee Schiff pay closer attention to the administrative processes involved in the mailing of the letters to debtors from its offices. The Panel was not persuaded that these types of scrivener's errors are simply the byproduct of a "high volume" practice. Every communication from a lawyer's office should be clear, consistent and preferably giving the proper address of the office handling the matter and a signature of the lawyer or assistant responsible for sending the letter.
On June 27, 2011 Mr. Morneault settled a credit card debt which was being collected by the firm of Howard Lee Schiff, P.C. He was told at that time that it would take twenty days before a satisfaction of judgment would be filed with the court. A disclosure hearing had been set for August 2, 2011 in Caribou District Court. Prior to the hearing, Attorney Thomas sent to Caribou District Court a "Notice of Satisfaction of Judgment" on July 19, 2011. This was received by the court on July 25, 2011.
Because the hearing was geographically distant, Attorney Thomas contracted with another law firm to provide coverage at the disclosure hearing. Attorney KWP was hired to provide coverage for Attorney Thomas. As part of their agreement Attorney Thomas sent to Attorney KWP a list of cases and the corresponding documentation related to each case. While Attorney Thomas testified that she reviewed the packet before it went to Attorney KWP, she did not notice that Mr. Morneault's paperwork was being provided to Attorney KWP. She believed that the removal of Mr. Morneault's name from the requested list of cases to be covered was sufficient notice that Attorney KWP did not need to cover the matter.
During the hearing process the Judge called the case of Midland Funding, Inc. v. Ryan Morneault. Attorney KWP noted that while he was not on her list of cases, his corresponding paperwork had been provided by Attorney Thomas and so she appeared that day on behalf of Midland Funding. Since the judgment debtor did not appear, the Judge provided relief to the creditor in the form of allowing the creditor to file at a future date a request for a civil order of arrest. Testimony from Attorney KWP was that this is the practice of this District Court judge and that although she did not affirmatively request such an order, she did note that it is the only option available to a creditor if the debtor does not appear.
Mr. Morneault is a flight paramedic and a respected member of his community. He is also known personally by members of the court personnel. Following the disclosure hearing he received a call from a friend in law enforcement who told him that the court had issued a civil order of arrest because he did not show up at court (although this is not technically true, this was Mr. Moreault?s understanding regarding the disposition of the matter). Given the fact that Mr. Moreault had paid the debt and had received confirmation from Attorney Thomas that the Notice of Satisfaction had been filed with the court, he was understandably upset. He feared that his reputation had been negatively impacted and that he could even lose his job if he was arrested. He went directly to the District Court Clerk and showed her the letter he had received from Attorney Thomas. The Clerk was sympathetic, but for some reason did not realize that the "Notice of Satisfaction of Judgment" had been filed a week earlier but had not made it to the Court's paper file.
Mr. Morneault then spoke directly with an administrative assistant from Attorney Thomas's firm who explained the situation. The clerk's office provided Mr. Morneault with the number for the Portland Office of the Schiff firm. There was conflicting testimony as to how Mr. Morneault was treated during this telephone call to the firm. After the call, Attorney Thomas filed a second "Notice of Satisfaction of Judgment" on August 9, 2011. She did not call the court to investigate the whereabouts of the earlier filing as she and her supervisor thought it would be a fruitless request. Attorney Thomas did not call Attorney KWP to discuss this issue until much later. As far as Attorneys Thomas and Dumont were concerned there was nothing more to do other than file a second Notice. No thought was given to filing a motion to vacate the Disclosure Hearing Order.
Respondent's defense, once again, emphasized the high volume nature of work in the practice of collection law. There was also a great deal of testimony regarding the import of the Disclosure Hearing Order. All of the lawyers testified that it is very rare that a civil order of arrest is ever requested, but nonetheless, whether such a request is ever made is not the relevant point. The fact remains that there is an Order against Mr. Morneault which is based upon a false statement of material fact. This is not an inconsequential result. By not filing a motion to vacate the Order Attorney Thomas has violated Rules 1.3 and 3.3 (a)(1) of the Maine Rule of Professional conduct. The Panel strongly suggests that Attorney Thomas file such a motion to correct the record.
The Code of Professional Responsibility requires attorneys to uphold their responsibilities to their clients, to the legal system, and to the courts at all times. The Panel concludes that Attorney Thomas' failure to properly prepare the attorney covering for her at Caribou District Court led to the misrepresentation of the status of the Morneault matter and caused an Order to be entered against Mr. Morneault which has not been vacated. However, because the Panel is persuaded that this misrepresentation was indeed an "honest error" we deem it to constitute an instance of only minor misconduct. The Panel finds that this misconduct occasioned minimal injury to Mr. Mornault, the public, the legal system, and to the profession. We believe that this misconduct is unlikely to be repeated by Respondent Attorney Thomas.
Accordingly, pursuant to Maine Bar Rule 7.1(e)(3)(B), the Panel hereby finds that the appropriate disposition of Count II is a Dismissal with a Warning.
For the Grievance Commission
Victoria Powers, Esq., Chair of Panel E
David S. Abramson, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. George F. Leahy
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Docket No.: BAR-12-10
Issued by: Supreme Judicial Court
Date: October 3, 2012
Respondent: George F. Leahy
Bar Number: 002769
Order: Suspension Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
ORDER OF RECIPROCAL DISCIPLINE
Effective September 2, 2012, the Commonwealth of Massachusetts Supreme Judicial Court suspended George F. Leahy from the practice of law for a period of two (2) months. Pursuant to Maine Bar Rule 7.3(h)(1), this Court issued an order on September 18, 2012, requesting Mr. Leahy, within thirty (30) days of service of this order upon him, to inform the Court in writing of any claim by him that imposition of identical discipline by this Court would be unwarranted and the reasons therefore. On September 26, 2012, this Court received Mr. Leahy's response.
This Court finds that reciprocal discipline is warranted and so orders.
For the Court
Warren M. Silver
Associate Justice
Board of Overseers of the Bar v. In Re Carlisle J.T. McLean
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Docket No.: BAR-12-9
Issued by: Supreme Judicial Court
Date: October 3, 2012
Respondent: Carlisle J.T. McLean
Bar Number: 009953
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Order of Reinstatement
Upon the petition of Carlisle J.T. McLean for reinstatement to the bar of the State of Maine under M. Bar R. 7.3(j), and upon the vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Ms. McLean's petition for reinstatement is now granted without hearing.
Effective immediately, Carlisle J.T. McLean is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilities hereto.
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Joan P. Davis a/k/a Joan D. Dowdell
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Docket No.: BAR-12-4
Issued by: Supreme Judicial Court
Date: October 3, 2012
Respondent: Joan P. Davis a/k/a Joan D. Dowdell
Bar Number: 002825
Order: Disbarment Reciprocal Discipline
Disposition/Conduct: Neglect (Reciprocal Discipline Action)
DECISION AND ORDER
Joan P. Davis1 requested a hearing pursuant to M. Bar R. 7.3(h)(1) asking this Court not to impose reciprocal discipline imposed by the State of Georgia in Maine. This Court held a hearing on September 28, 2012. Ms. Davis claims that she did not receive a fair decision regarding her Georgia disbarment claiming that her punishment far exceeds her offenses. Georgia claims, in effect, that Ms. Davis abandoned a client in a child support matter by not appearing when appropriate and in effect leaving her client unrepresented.
Maine Bar Rule 7.3(h)(3) requires the Court to find as follows:
Bar Counselor the respondent attorney established, or the Court concludes, that (i) the procedure in the other jurisdiction did not provide reasonable notice or opportunity to be heard; (ii) there was significant infirmity of proof establishing the misconduct; (iii) imposition of the same discipline would result in grave injustice; or (iv) the misconduct established does not justify the same discipline in this State.
In addition Maine Bar Rule 7.3(h)(4) requires:
A final adjudication in another jurisdiction that an attorney has been guilty of misconduct may be treated as establishing the misconduct for purposes of a disciplinary proceeding in this State.
This Court finds that Ms. Davis received reasonable notice of her bar discipline in Georgia and had an opportunity to be heard regarding the matter. There was also substantial proof regarding Ms. Davis's misconduct. Because the Special Master found that Ms. Davis lied during the disciplinary proceeding, the misconduct was made worse. This Court finds that Ms. Davis may have received the same discipline in this State. In addition, Ms. Davis has been administratively suspended from the practice in Maine for the last twenty (20) years because she has not paid bar dues or otherwise complied with the Maine Bar Rules. Therefore, the imposition of a disbarment in Maine would not have any real impact on Ms. Davis because she is currently prohibited from practicing in Maine.
This Court hereby orders that reciprocal discipline be imposed and Joan P. Davis, Esq., is hereby disbarred in the State of Maine effective immediately.
For the Court
Warren M. Silver
Associate Justice
Footnotes
Board of Overseers of the Bar v. Carolyn M. Asquith
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Docket No.: BAR-12-3
Issued by: Supreme Judicial Court
Date: October 9, 2012
Respondent: Carolyn M. Asquith
Bar Number: 009426
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Appointment of Receiver M. Bar R. 7.3(f)(1)
Based upon the Petition filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f) the Court Orders the following:
As of this date, David R. Weiss, Esq. is appointed the Receiver of suspended attorney Carolyn M. Asquith's law practice. Pursuant to this Order, Attorney Weiss shall:
Furthermore, Attorney Weiss or any other Maine attorney in the employ of Weiss Law Office may be engaged to serve as the attorney for any former client of Ms. Asquith, provided that Attorney Weiss (or any other engaged attorney so employed at his law office) informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend Attorney employment by that client.
Attorney Weiss is subject to the Maine Rules of Professional Conduct, including M R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of Attorney Weiss as successor counsel will not constitute a per se conflict of interest solely by reason of Attorney Weiss's appointment as Receiver under this Order.
Attorney Weiss shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Once Ms. Asquith is served with this Order or otherwise becomes aware of it, she shall cooperate with any request by Receiver Weiss and/or the Board to assist with the delivery and disposition of her former clients' files and any acts necessary to close her bank accounts and conclude her practice.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to Bar Counsel J. Scott Davis.
For the Court
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. James W. Campbell, Esq.
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Docket No.: GCF# 11-352
Issued by: Grievance Commission
Date: October 30, 2012
Respondent: James W. Campbell, Esq.
Bar Number: 002567
Order: Reprimand
Disposition/Conduct: Criminal Conduct in violation of M. R. Prof. Coduct 8.4(b)
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On October 30, 2012, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7. 1 (e)(2)(E), concerning misconduct by the Respondent, James W. Campbell, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 30, 2012.
At the hearing, Attorney Campbell appeared with his counsel, Attorney Michael K. Martin. The Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent James W. Campbell, Esq. of Hingham, Massachusetts has been at all relevant times an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine, and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Campbell was admitted to the Maine Bar in 1973. He is currently registered as a non-resident active attorney in Maine, with his primary law office and practice being located in Massachusetts. He has no law office or clients in Maine.
On November 2, 2011, Campbell "self-reported" his misconduct to Bar Counsel. By that self-report, Campbell disclosed and admitted that on October 4, 2011 he had entered a plea of nolo contendre in the Salem New Hampshire District Court concerning the misdemeanor charge of indecent exposure and lewdness. As a result, he was fined $750.00 for that criminal conduct and conviction.
Based upon an agreed upon stipulation between Campbell and the Massachusetts Office of the Bar Counsel, on March 12, 2012 the Massachusetts Board of Bar Overseers voted to sanction Campbell by a public reprimand in that jurisdiction for that same criminal conviction.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. In addition, under M. Bar R. 2(a) and M. R. Prof. Conduct 8.4(a), Maine's professional conduct rules are applicable to Maine attorneys notwithstanding the absence of any attorney / client relationship. Attorney Campbell agrees his criminal conviction violated M. R. Prof. Conduct 8.4(b)(criminal conduct that reflects adversely on a lawyer's fitness to practice). The panel notes that Attorney Campbell has taken responsibility for his misconduct. At the disciplinary hearing, Attorney Campbell expressed his remorse for his violation of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Attorney Campbell has no prior disciplinary or sanction record in Maine. Since the evidence supports a finding and Attorney Campbell agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Campbell's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to James W. Campbell, Esq. which is now hereby issued and imposed upon him/her pursuant to M. Bar R. 7.1(e)(3)(C), (4).
For the Grievance Commission
Martha C. Gaythwaite, Esq., Chair
Peter C. Fessenden, Esq.
Kenneth L. Roberts (layperson)
Board of Overseers of the Bar v. Nelson A. Toner, Esq.
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Docket No.: GCF# 10-321
Issued by: Grievance Commission
Date: November 13, 2012
Respondent: Nelson A. Toner, Esq.
Bar Number: 003686
Order: Reprimand
Disposition/Conduct: Failure to Communicate with Client
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(E), (3)(C)(4)
On November 13, 2012, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Nelson A. Toner, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on October 16, 2012.
At the hearing, the Board of Overseers of the Bar was represented by Bar Counsel Scott Davis, and Attorney Toner was represented by Bernard J. Kubetz, Esq.
Prior to that hearing, the parties had submitted a stipulated, proposed Report of Findings and Order for the Grievance Commission Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
There are papers that I need at work, to go get them we would have to set up a time when Tammy is not there to get things that I need. We all agreed.
I told Deb Gallant that I would do whatever is in the best interest of the Company. She wrote on a piece of paper for me to stay away from work while Tammy was there.
It is strongly recommended that Peter?s office be permanently moved outside of the Main Street Fairfield Building (were (sic) Tammy located).
Ms. Gallant concluded that your expressed concerns were legitimate and has recommended that the most effective course of action in these circumstances is to establish an office for Peter at a remote site (not located at the Main Street Fairfield building) and require that he have no contact of any nature with you.
Management has accepted the conclusions and recommendations of Ms. Gallant concerning your complaint.
The former Code of Professional Responsibility and the current Maine Rules of Professional Conduct each specifically require attorneys to uphold their duties to clients. Those duties include keeping a client informed as to the status of the legal matter the attorney is handling for a client. The Panel acknowledges Attorney Toner?s explanation that he understood and believed Peter Redman had instructed him to attempt to resolve the Tammy Simpson matter on a non-litigious basis instead of challenging Ms. Simpson and the Report of the Company?s Human Resources director and possibly causing Ms. Simpson to file a complaint with the Maine Human Rights Commission and/or the courts or trigger a further dispute with Mark Redman. The Panel recognizes Attorney Toner?s belief that he may have misunderstood Peter Redman?s decision and instructions on how to proceed.
Nevertheless, Attorney Toner?s failure to deliver a copy of the Bell memo to Peter Redman before it was sent to Mark Bell was improper. Attorney Toner now admits, and the Panel so finds, that regardless of whether he may have believed at the time that he was following Mr. Redman?s instructions and that he had been authorized to take the steps necessary to carry out those instructions, he should have provided Mr. Redman with a copy of the Bell memo in draft form before or at the latest, as it was provided to the Company?s general manager, Mark Bell, for execution and delivery to Tammy Simpson. Had Attorney Toner taken those precautionary steps, Mr. Redman would have had the opportunity to review the course of action being pursued by his counsel. Mr. Redman could have then contacted Attorney Toner to inform him if those actions being taken by Attorney Toner were directly contrary to Mr. Redman?s desires. By failing to take those required and important steps, even if he acted in a good faith belief that he was following his client?s instruction, Attorney Toner failed to keep his client fully informed of the status of his legal affairs, in violation of Bar Rule 3.6(a).
The Panel notes that over the course of his 25-year career as an attorney, this is the first instance in which a grievance complaint of any kind has been filed against Attorney Toner.
Since the evidence of misconduct supports a finding and Attorney Toner agrees he did in fact violate the Code of Professional Responsibility, specifically Maine Bar Rule 3.6(a), the Panel finds that its issuance of a Public Reprimand is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Toner?s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this matter is the issuance of a Public Reprimand to Nelson A. Toner, Esq., which is now hereby issued and imposed upon him in accordance with Maine Bar Rule 7.1(e)(3)(C)(4).
For the Grievance Commission
Victoria Powers, Esq., Panel Chair
John C. Hunt, Esq.
Marge M. Medd
Board of Overseers of the Bar v. John L. Carpenter, Esq.
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Docket No.: GCF# 11-308
Issued by: Grievance Commission
Date: November 13, 2012
Respondent: Johon L. Carpenter, Esq.
Bar Number: 003002
Order: Dismissal
Disposition/Conduct: No misconduct
MOTION TO DISMISS
NOW COMES the Board of Overseers of the Bar through Bar Counsel J. Scott Davis, and Respondents by their counsel, Bernard J. Kubetz, Esq., to hereby jointly respectfully request dismissal of the two above-docketed matters for the following reasons:
Wherefore, the parties now jointly request that the above-docketed grievance matters involving Attorneys John L. Carpenter and Kate S. Debeviose each be HEREBY ordered dismissed with prejudice in each instance.
Dated at Augusta, Maine this 13th day of November 2012.
J. Scott Davis, Bar Counsel
Me. Bar No. 1469
Board of Overseers of the Bar 97 Winthrop St., P.O. Box 527 Augusta, ME 04332-0527 (207) 623-1121
Bernard J. Kubetz, Esq.
Me. Bar No. 788
Eaton Peabody P. O. Box 1210 Bangor, ME 04402-1210
Motion Granted: November 13, 2012
Victoria Powers, Esq., Chair Grievance Commission Panel E
Board of Overseers of the Bar v. Kate S. Debevoise, Esq.
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Docket No.: GCF# 11-309
Issued by: Grievance Commission
Date: November 13, 2012
Respondent: Kate S. Debevoise, Esq.
Bar Number: 003582
Order: Dismissal
Disposition/Conduct: No misconduct
MOTION TO DISMISS
NOW COMES the Board of Overseers of the Bar through Bar Counsel J. Scott Davis, and Respondents by their counsel, Bernard J. Kubetz, Esq., to hereby jointly respectfully request dismissal of the two above-docketed matters for the following reasons:
Wherefore, the parties now jointly request that the above-docketed grievance matters involving Attorneys John L. Carpenter and Kate S. Debeviose each be HEREBY ordered dismissed with prejudice in each instance.
Dated at Augusta, Maine this 13th day of November 2012.
J. Scott Davis, Bar Counsel
Me. Bar No. 1469
Board of Overseers of the Bar 97 Winthrop St., P.O. Box 527 Augusta, ME 04332-0527 (207) 623-1121
Bernard J. Kubetz, Esq.
Me. Bar No. 788
Eaton Peabody P. O. Box 1210 Bangor, ME 04402-1210
Motion Granted: November 13, 2012
Victoria Powers, Esq., Chair Grievance Commission Panel E
Board of Overseers of the Bar v. Daniel W. Bates, Esq.
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Docket No.: BAR-12-11
Issued by: Supreme Judicial Court
Date: November 27, 2012
Respondent: Daniel W. Bates, Esq.
Bar Number: 001597
Order: Receiver Appointment
Disposition/Conduct: N/A
Order for Appointment of Receiver M. Bar R. 7.3(f)(1)
Upon the Petition for Appointment of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Andrew T. Dawson, Esq. (Goodspeed & O?Donnell) is appointed the Receiver of Attorney Daniel W. Bates?s law practice. Attorney Dawson shall:
As a service to the bar, Attorney Dawson has agreed to serve as this Receiver on a pro bono basis. He shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. Attorney Bates?s Estate shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Bates?s Estate, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Dawson shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Attorney Dawson so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney Dawson/Goodspeed & O?Donnell may be engaged by any former client of Attorney Bates?s provided that he informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver?s employment by the client.
The Receiver(s) is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client?s retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Dawson?s appointment by this Order.
Attorney Dawson and Goodspeed & O?Donnell shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Assistant Bar Counsel Aria Eee, Esq.
Andrew Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Julio V. Desanctis
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Docket No.: GCF# 89-S-200
Issued by: Grievance Commission
Date: November 5, 1991
Respondent: Julio V. Desanctis
Bar Number: 001751
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Claudia Sharon
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Docket No.: GCF# 92-S-230
Issued by: Grievance Commission
Date: July 1, 1993
Respondent: Claudia Sharon
Bar Number: 003289
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. David S. Turesky
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Docket No.: GCF# 93-S-124
Issued by: Grievance Commission
Date: April 26, 1995
Respondent: David S. Turesky
Bar Number: 001926
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Wallace A. Bilodeau
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Docket No.: BAR-86-14, 87-5, 87-16
Issued by: Supreme Judicial Court
Date: October 21, 1988
Respondent: Wallace A. Bilodeau
Bar Number: 000887
Order: Decision & Amended Order
Disposition/Conduct:
Board of Overseers of the Bar v. George S. Hutchins
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Docket No.: BAR-89-4
Issued by: Supreme Judicial Court
Date: July 28, 1989
Respondent: George S. Hutchins
Bar Number: 001845
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-92-13, 93-3
Issued by: Supreme Judicial Court
Date: July 8, 1993
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-92-13, 93-3
Issued by: Supreme Judicial Court
Date: November 10, 1993
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Suspension Order for Monitoring
Disposition/Conduct:
Board of Overseers of the Bar v. Brian L. Datson
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Docket No.: BAR-94-3
Issued by: Supreme Judicial Court
Date: July 25, 1994
Respondent: Brian L. Datson
Bar Number: 003558
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Earle S. Tyler, Jr.
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Docket No.: BAR-93-14, 94-4
Issued by: Supreme Judicial Court
Date: April 5, 1995
Respondent: Earle S. Tyler, Jr.
Bar Number: 001745
Order: Findings, Conclusions and Order
Disposition/Conduct:
Board of Overseers of the Bar v. David F. Gould
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Docket No.: BAR-95-3
Issued by: Supreme Judicial Court
Date:
Respondent: David F. Gould
Bar Number: 001779
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Brian R. Olson
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Docket No.: BAR-96-4
Issued by: Supreme Judicial Court
Date: September 26, 1996
Respondent: Brian R. Olson
Bar Number: 000271
Order: Disbarment
Disposition/Conduct:
Board of Overseers of the Bar v. Schuyler G. Steele
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Docket No.: BAR-96-14
Issued by: Supreme Judicial Court
Date: November 27, 1996
Respondent: Schuyler G. Steele
Bar Number: 002817
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas M. Mangan
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Docket No.: BAR-96-15
Issued by: Supreme Judicial Court
Date: February 18, 1997
Respondent: Thomas M. Mangan
Bar Number: 001743
Order: Findings of Fact and Conclusions of Law
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-96-16
Issued by: Supreme Judicial Court
Date: March 3, 1997
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard D. Slosberg
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Docket No.: BAR-96-16
Issued by: Supreme Judicial Court
Date: October 22, 1997
Respondent: Richard D. Slosberg
Bar Number: 003446
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Mary N. Kellett, Esq.
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Docket No.: GCF# 11-00
Issued by: Grievance Commission
Date: December 5, 2012
Respondent: Mary N. Kellett, Esq.
Bar Number: 007576
Order: Findings
Disposition/Conduct: Probable cause found for further proceedings before the Court
REPORT FINDING OF PROBABLE CAUSE FOR FILING OF INFORMATION WITH COURT - PANEL A OF THE GRIEVANCE COMMISSION
On October 22 and October 23, 2012, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to M. Bar R. 7.1(e)(2), concerning the Respondent, Mary N. Kellett, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar counsel on April 6, 2012, alleging violations of M. Bar R.P.C. 3.1, 3.2(f), 3.6(d), 3.7(a),(b),(c),(e),(g),(i).
At the disciplinary hearing, the Board was represented by Bar Counsel Scott Davis, Esq. and Respondent was present and represented by Ronald W. Lupton, Esq. Joint exhibits marked Board Exhs. 1-54 were admitted mostly without objection. The Panel heard testimony from the following witnesses:
Vladek Filler Daniel Pileggi, Esq.
Ellsworth Police Chief John DeLeo
George T. Dilworth, Esq.
Gouldsboro Police Officer Guy Wycoff
Washington County Deputy Sheriff Travis Willey
Ellsworth Police Officer Chad Wilmot
Stephen McFarland
Donald W. Macomber, Esq.
Fernald R. LaRochelle, Esq.
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
The Panel acknowledges that:
? its members do not have vast experience in the criminal arena;
? Ms. Kellett testified that she had a caseload she described as "too much" in 2007 and 2008;
? Ms. Kellett was an experienced prosecutor in 2007 and 2008;
? Ms. Kellett recently won an award for her advocacy;
? Rebuttal arguments can be difficult;
? Ms. Kellett has no prior disciplinary record and cooperated with the Board's investigation.
? mistakes are not necessarily violations of the bar rules. In fact, the Panel finds that Ms. Kellett's reference in her closing argument to a crime anecdote, her mention of a rape kit and her burden shift reference (which she later corrected on rebuttal) were certainly mistakes which could have caused prejudice, but, in the Panel's view, do not rise to the level of violations of the bar rules.
However, with liberty at stake, the panel heard testimony involving two instances that cause concern.
Ms. Kellett's "where is the evidence?" rebuttal argument purposefully amplified the exclusion of evidence and caused prejudice to the defendant. Her comments drew attention to evidence that was missing because she had successfully objected to its admission. Despite the Superior Court's rulings and the Law Court's decision regarding the unfair prejudice to the defendant, Ms. Kellett testified at the disciplinary hearing that she would not change that aspect of her rebuttal argument, if she were to do it again. Ms. Kellett's own expert, Fernald R. Rochelle, Esq., testified that she appeared "stubborn" and as if she were "bucking the court" during her testimony. This willful recalcitrance makes it appear likely that Ms. Kellett would repeat this unfairly prejudicial conduct.
With regard to the discovery issues, at least two key pieces of exculpatory evidence, the 911 recording from April 24, 2007 (Exhibit 46) and the Ellsworth American witness statements (Exhibit 41), were not produced before trial. The seriousness of this issue cannot be overstated. The evidence was requested by letters, subpoena and motion. The evidence should have been produced pursuant to rules, a court order, case law and ethical obligations. The Board's expert, George T. Dilworth, Esq., testified that the evidence was "critical" to the defense and that Ms. Kellett had the obligation to diligently search for all evidence held by the police and produce it. Ms. Kellett and her colleagues testified that they didn't see the relevance of one of the requests and therefore didn't follow up to produce it in any timely manner.
In addition, the testimony of Ms. Kellett at trial indicated to the Panel that Ms. Kellett's supervisor, the then District Attorney, failed to comply with M. Bar R. 3.13(a)(3) by ratifying Ms. Kellett's conduct and obviously disregarding Attorney Pileggi's ethical concerns set forth in his letter to Ms. Kellett dated May 29, 2008, (Exhibit 32), which Ms. Kellett testified she brought to his attention.
After considering the evidence presented at the hearing, the Panel concludes that Ms. Kellett's specific violations of the Maine Bar Rules in this matter include at least the following:
1) engaging in conduct unworthy of an attorney in violation of M. Bar R. 3.1(a);
2) engaging in conduct prejudicial to the administration of justice, in violation of M. Bar R. 3.2(f)(4);
3) failing to employ reasonable skill and care, in violation of M. Bar R. 3.6(a);
4) failing to make timely disclosure of the existence of evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment in violation of M. Bar R. 3.7(i)(2);
5) suppressing evidence that the lawyer had a legal obligation to produce in violation of M. Bar R. 3.7(g);
6) assisting the State of Maine to violate the Maine Rules of Criminal Procedure and the court's Order in violation of M. Bar R. 3.6(d); and
7) employing means that were inconsistent with truth and seeking to mislead the jury in violation of M. Bar R. 3.7(e)(1)(i).
Based upon the petition, admitted exhibits, and testimony presented at the hearing, including Ms. Kellett's testimony regarding her conduct, pursuant to M. Bar R. 7.1, the panel concludes that an appropriate sanction in this matter would be a period of suspension. Accordingly, the Panel finds probable cause for such discipline, and hereby directs Bar Counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 7.2(b).
Grievance Panel A
M. Ray Bradford, Jr., Esq., Chair
Sarah McPartland-Good, Esq.
Norman Ross
Board of Overseers of the Bar v. Earle S, Tyler
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Docket No.: BAR-97-7
Issued by: Supreme Judicial Court
Date: December 19, 1997
Respondent: Earle S, Tyler
Bar Number: 001745
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Earle S, Tyler
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Docket No.: BAR-97-7
Issued by: Supreme Judicial Court
Date: December 19, 1997
Respondent: Earle S, Tyler
Bar Number: 001745
Order: Reprimand
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-96-16
Issued by: Supreme Judicial Court
Date: April 30, 1998
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Albert P.C. Lefebvre
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Docket No.: BAR-96-8
Issued by: Supreme Judicial Court
Date: May 21, 1998
Respondent: Albert P.C. Lefebvre
Bar Number: 002800
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-96-16
Issued by: Supreme Judicial Court
Date: April 12, 1999
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard
Docket No.:
Issued by:
Date:
Respondent:
Bar Number:
Order:
Disposition/Conduct:
Board of Overseers of the Bar v. Richard S. Emerson, Jr.
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Docket No.: BAR-00-5
Issued by: Supreme Judicial Court
Date: March 15, 2001
Respondent: Richard S. Emerson, Jr.
Bar Number: 000934
Order: Order for Monitoring
Disposition/Conduct:
Board of Overseers of the Bar v. Charles G. Williams III
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Docket No.: BAR-02-5
Issued by: Supreme Judicial Court
Date: November 19, 2002
Respondent: Charles G. Williams III
Bar Number: 000163
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Ronald L. Bishop
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Docket No.: BAR-00-06
Issued by: Supreme Judicial Court
Date: May 15, 2003
Respondent: Ronald L. Bishop
Bar Number: 000886
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard G. Cervizzi
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Docket No.: BAR-04-04
Issued by: Supreme Judicial Court
Date: April 28, 2004
Respondent: Richard G. Cervizzi
Bar Number: 001607
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard G. Cervizzi
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Docket No.: BAR-04-04
Issued by: Supreme Judicial Court
Date: January 14, 2005
Respondent: Richard G. Cervizzi
Bar Number: 001607
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard G. Cervizzi
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Docket No.: BAR-04-04
Issued by: Supreme Judicial Court
Date: January 14, 2005
Respondent: Richard G. Cervizzi
Bar Number: 001607
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Judith W. Thornton
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Docket No.: BAR-12-6
Issued by: Supreme Judicial Court
Date: December 14, 2012
Respondent: Judith W. Thornton
Bar Number: 003807
Order: Order and Decision
Disposition/Conduct: Order Discharging Receiver
ORDER DISCHARGING RECEIVER
Pending before the Court is the Receiver's Status Report and Petition for Discharge filed on December 3, 2012. For good cause shown and without objection, the Receiver's Petition for Discharge is GRANTED as follows:
It is hereby ORDERED that Attorney Robert J. Stolt is discharged as Receiver of the law practice of suspended attorney Judith W. Thornton.
In that regard, the Court acknowledges the enormous effort and valuable service Attorney Stolt has provided as Receiver, thanks him for his work, and extends its sincere appreciation for his willingness to serve. The Maine Bar is fortunate to have such generous and dedicated practitioners within its ranks.
It is further ORDERED that the Board of Overseers of the Bar shall act as primary caretaker of Judith W. Thornton's unclaimed client files. Accordingly, the Board shall maintain Thornton's unclaimed client files for a minimum of eight years. After eight years, these unclaimed files shall be destroyed. However, the Board shall retain and tend those items of intrinsic value (original wills and deeds) as long as they retain their value.
Ellen Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Laury E. Bowman, Esq.
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Docket No.: BAR-12-12
Issued by: Supreme Judicial Court
Date: December 28, 2012
Respondent: Laury E. Bowman
Bar Number: 009283
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
ORDER of REINSTATEMENT M. Bar R. 7.3(j)(5)(6)
Upon the petition of Laury E. Bowman for reinstatement to the bar of the State of Maine under M. Bar R. 7.3(j), and upon the vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Ms. Bowman's petition for reinstatement is now granted without hearing.
Effective immediately, Laury E. Bowman is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilites hereto.
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re David G. Coolidge, Esq.
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Docket No.: BAR-12-13
Issued by: Supreme Judicial Court
Date: January 3, 2013
Respondent: David G. Coolidge
Bar Number: 009519
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
ORDER of REINSTATEMENT M. Bar R. 7.3(j)(5)(6)
Upon the petition of David G. Coolidge for reinstatement to the bar of the State of Maine under M. Bar R. 7.3(j), and upon the vote of the Board of Overseers of the Bar supporting and recommendting the Court's approval of said petition, Mr. Coolidge's petition for reinstatement is now granted without hearing.
Effective immediately, David G. Coolidge is HEREBY reinstated to the bar of the State of Maine with all rights and responsibilities hereto.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Carolyn M. Asquith
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Docket No.: BAR-12-3
Issued by: Maine Supreme Judicial Court
Date: January 8, 2013
Respondent: Carolyn M. Asquith
Bar Number: 009426
Order: Suspension
Disposition/Conduct: Lack of diligence and promptness; Disobeying obligations of the Rules of a Tribunal; Failure to Respond to Bar Counsel; Dishonest or deceitful conduct; Failure to pay an ordered fee refund within 30 days
ORDER OF SUSPENSION
M. Bar R. 7.2(b)
A final hearing was conducted on December 17, 2012 regarding the Board of Overseers of the Bar?s disciplinary petition pursuant to M. Bar R. 7.2(b) against Carolyn M. Asquith following several grievance filings against her. The Board was represented by Bar Counsel J. Scott Davis, with Attorney Charles W. Smith, Jr. appearing for Defendant Asquith, who was present at that hearing.
On May 17, 2012 Bar Counsel Davis petitioned the Court for an immediate order temporarily suspending Asquith from the practice of law in the State of Maine. The Board?s petition, which included an attached Affidavit of Bar Counsel Davis, described the substance of five (5) unrelated grievances and related filings then pending against Asquith, to which she had failed to file any responses. At the time the Board filed its petition, Asquith was without counsel. On June 4, 2012 Attorney Smith entered his appearance for Asquith. After conducting a telephonic hearing on July 9, 2012, at which counsel for both parties appeared but Asquith did not, the Court issued a Temporary Suspension Order concerning Asquith?s practice in Maine. She has remained under suspension to date.
By Order of October 9, 2012, the Court appointed Attorney David Weiss to act as Asquith?s Receiver (Proxy) under M. Bar R. 7.3(f), in order to address the needs of Asquith?s existing clients and matters then pending at the time of her July 9, 2012 suspension. The various complainants involved in the grievance matters filed with the Board against Asquith were notified by Bar Counsel of the scheduled Court proceeding of December 17, 2012, and of their right to attend the hearing and be heard as to the conduct by Asquith that caused their respective complaints.
Based upon Asquith?s the earlier defaults regarding the initial grievances filed against her and her current acknowledgment of most of the later allegations, counsel each agree and Asquith acknowledges that she engaged in multiple instances of professional misconduct in violation of the Maine Rules of Professional Conduct and the Maine Bar Rules. During the time leading up to Asquith?s suspension and the related Receivership, the facts of her serious misconduct clearly confirm that Asquith failed to adequately perform legal work or to properly monitor her clients? matters.
Carolyn Asquith was admitted to the Maine bar in May 2003. Before her temporary suspension, Asquith maintained a solo law practice in Topsham, Maine. Asquith?s professional misconduct is described and summarized as follows:
Maine Bar Rule:
9(i) (failure to pay an ordered fee refund award within thirty days)
Maine Rules of Professional Conduct:
1.3 (lack of diligence and promptness);
3.4(c) (disobeying obligations of the rules of a tribunal);
4.1(a) (false statement of material fact to a third person);
8.1(b) (failure to respond to Bar Counsel);
8.4(a) (violation of the Maine Bar Rules);
8.4(c) (dishonest or deceitful conduct); and
8.4(d) (conduct prejudicial to the administration of justice)
Accordingly, upon consideration of the Board of Overseers of the Bar?s disciplinary filings and former attorney Asquith?s current mental health condition and pursuant to the parties? proposed agreement, it is hereby ORDERED as follows:
a. Submit to evaluation (and treatment if recommended) by a clinician agreed to by Bar Counsel;
b. Obtain written approval by a medical doctor or treating psychiatrist that her depression does not render her impaired to work as an attorney;
c. Participate in the Maine Assistance Program for Lawyers (MAP) program, which will include but not be limited to weekly meetings (or at such other frequency as directed by MAP?s director) and her execution of any contract(s) deemed appropriate by MAP?s Director;
d. Submit to monitoring of her practice, including a financial audit to ensure her compliance with M. R. Prof. Conduct 1.15;
e. Demonstrate the ability to acquire office space with a written agreement;
f. Provide ongoing verification that the charges incurred for her office space have been paid during the agreement period;
g. Hire a staff person, as an employee or on a contract basis, who will assist her in maintaining her schedule and assuring that she is in regular and timely contact with her clients, the courts, attorneys, and others;
h. Maintain current registration and CLE requirements as required by the Maine Bar Rules and as regulated by the Board of Overseers of the Bar;
i. Reimburse any of Attorney Weiss?s Receivership fees or costs paid on her behalf by the Board of Overseers within one (1) year of the date that Attorney Weiss incurs that fee or cost, or within one (1) year of the date of this Order, whichever is later;
j. Payment of $13,000.00 to the LFCP regarding the West-Harper/Harper payment matters, $6,500 of which shall be paid within two (2) years of the date of this Order, and the balance shall be paid within three (3) years of the date of this Order;
k. Payment of $109.00 due and owing to Virginia R. Hodge Abstracting within ninety (90) days of the date of this Order; and
l. Pay any further claims awarded against her by the Fee Arbitration Commission or the LFCP.
Additionally, should Asquith become reinstated to practice, she agrees that if the Board of Overseers receives any further grievance complaints against her or if her depression results in admittance into any medical facility, upon motion of Bar Counsel, any such a new matter(s) or change of circumstances is ordered to be filed directly with the Court for hearing to consider the appropriate action to be taken.
Justice Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Daniel J. Murphy
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Docket No.: BAR 88-04
Issued by: Supreme Judicial Court
Date: November 19, 1990
Respondent: Daniel J. Murphy
Bar Number: 009464
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Eric B. Morse, Esq.
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Docket No.: GCF# 12-019
Issued by: Grievance Commission
Date: January 9, 2013
Respondent: Eric B. Morse, Esq.
Bar Number: 007980
Order: Dismissal with Warning
Disposition/Conduct: Candor to the Tribunal; Misrepresentation; Conduct prejudicial to the administration of justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
M. Bar R. 7.1(e)(2)(4)
On December 18, 2012, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Eric B. Morse, Esq. The disciplinary proceeding was commenced by the Board of Overseers of the Bar?s (the Board) October 11, 2012 filing of a Stipulated Disciplinary Petition.
During the hearing, the Board was represented by Assistant Bar Counsel Aria Eee and Attorney Morse was represented by Roger J. Katz, Esq. The complainant, Jeremy P. Kamil, lives in Louisiana and while he was unable to personally attend the hearing, he did send a letter to the Panel regarding the parties? proposed settlement document. That document was previously provided to him by the Board. Prior to the hearing, Assistant Bar Counsel Eee and Attorney Katz submitted a proposed, stipulated sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed that proposed Report as earlier filed by counsel, the Panel makes the following disposition:
Respondent Eric B. Morse of Rockland, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Morse is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Morse was admitted to the Maine Bar in 1994 and he is engaged in private practice in Rockland and registered as an active Maine attorney.
On or about January 9, 2012, Mr. Kamil filed the complaint which is at issue in this matter. In his complaint, Mr. Kamil alleged that Attorney Morse notarized a complaint for parental rights and responsibilities without his client, Kristin Cloutier, being present before him. Mr. Kamil also alleged that Attorney Morse improperly counseled Ms. Cloutier [his estranged partner] to file a Protection from Abuse complaint in an effort to gain an advantage in the couple?s custody dispute.
At the hearing, Attorney Morse acknowledged his error in notarizing Ms. Cloutier?s court pleading. Specifically, it was improper for Attorney Morse to notarize the pleading without Ms. Cloutier actually having signed the document in his presence. Attorney Morse admits that he did so under the mistaken belief that it was permissible, as long as he made it clear that the client had not so personally appeared. Attorney Morse now understands that executing a jurat in such a manner was improper and prejudicial to the parties? underlying court proceedings.
Based upon the above-outlined findings and the parties? agreement, the Panel finds that Attorney Morse?s actions constituted violations of Maine Rules of Professional Conduct 3.3(a) [Candor to the Tribunal] and 8.4(c)(d) [misrepresentation; conduct prejudicial to the administration of justice].
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Morse?s actions, Mr. Kamil suffered unnecessary distress and collateral litigation related to his family matter. Although Attorney Morse?s error was problematic, it did not create a lasting prejudice to the litigants or the court process. Instead, the Panel finds that the misconduct was minor in nature, resulted in nominal harm to the public and the profession and is unlikely to be repeated by Attorney Morse.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances. See M. Bar R. 7.1(e)(3)(C); See also ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
Attorney Morse has accepted responsibility for improperly executing the jurat in his client?s pleading. He acknowledges the upset he caused to Mr. Kamil and the violation of his duties as an officer of the court. During the stipulated hearing, Attorney Morse agreed that his conduct was unprofessional and unfair to Mr. Kamil and Attorney Morse apologized for his professional failures. Finally, the Panel notes that Attorney Morse has no prior history of sanction or discipline and that fact serves as a mitigation in this proceeding.
Since the evidence of misconduct supports a finding and Attorney Morse agrees he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that its issuance of a Dismissal with Warning is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Morse?s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Dismissal with a Warning to Eric B. Morse, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B),(4).
William E. Baghdoyan, Esq. - Chair
James A. McKenna III, Esq.
Kathleen A. Schulz
Board of Overseers of the Bar v. Thomas F. Malone, Jr.
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Docket No.: BAR 90-13
Issued by: Supreme Judicial Court
Date: November 20, 1990
Respondent: Thomas F. Malone, Jr.
Bar Number: 001813
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Wallace A. Bilodeau
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Docket No.: BAR 86-14, 87-5, 87-16
Issued by: Supreme Judicial Court
Date: March 29, 1991
Respondent: Wallace A. Bilodeau
Bar Number: 000887
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR 88-007
Issued by: Supreme Judicial Court
Date: January 3, 1992
Respondent: William B. Cote
Bar Number: 002892
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Ralph W. Brown
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Docket No.: BAR 91-27
Issued by: Supreme Judicial Court
Date: June 2, 1992
Respondent: Ralph W. Brown
Bar Number: 000982
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Stephen W. Devine
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Docket No.: BAR 92-14
Issued by: Supreme Judicial Court
Date: September 29, 1992
Respondent: Stephen W. Devine
Bar Number: 001824
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR 90-15
Issued by: Supreme Judicial Court
Date: November 25, 1992
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E. Audet
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Docket No.: BAR 93-8
Issued by: Supreme Judicial Court
Date: June 29, 1993
Respondent: Thomas E. Audet
Bar Number: 002084
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Carol J. Webb, Esq.
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Docket No.: GCF# 12-125; 12-330
Issued by: Grievance Commission
Date: January 14, 2013
Respondent: Carol J. Webb, Esq.
Bar Number: 009122
Order: Findings
Disposition/Conduct: Rejection of Stipulated Sanction
REPORT FINDING OF GRIEVANCE COMMISSION PANEL D
Pursuant to a Disciplinary Petition dated November 30, 2012, a stipulated disciplinary hearing open to the public was scheduled for December 18, 2012 at 9:30 a.m., with proper notice provided to all parties. The members of Grievance Panel D were present at the Board of Overseers of the Bar in Augusta, Maine. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee. The Respondent, Carol Webb, did not appear. Despite multiple attempts subsequent to the scheduled hearing to contact the Respondent, the Respondent was unreachable. Because no contact could be made with the respondent, the panel decided to postpone a decision on whether to accept the stipulated agreement of the parties. The panel chair instructed the Board Clerk to send a certified letter to the respondent requesting that she explain her absence from the hearing, giving her until December 26, 2012 to respond.
On December 28, 2012, the Board of Overseers of the Bar received correspondence from the Respondent indicating that she did not appear at the December 18th hearing due to a motor vehicle accident. On the afternoon of December 28, 2012, the members of Grievance Panel D held a telephonic conference to decide how to proceed with the case. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration, stipulating the issuance of two Public Reprimands.
Taking all of the proffered evidence in the light most favorable to the stipulated proposed disposition, the Panel is unable to conclude that a public reprimand is the appropriate disposition of this matter. This is particularly the case given that the respondent failed to appear for her hearing and failed to explain to the Board or the Panel the reason for her absence until after a demand for explanation was sent by certified mail. Accordingly, pursuant to Maine Bar Rule 7.1(d)(5), the office of Bar Counsel will prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 7.1(e). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Grievance Panel D
William E. Baghdoyan, Esq. - Chair
James A. McKenna III, Esq.
Kathleen A. Schulz
Board of Overseers of the Bar v. John M. Whalen
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Docket No.: BAR-93-10
Issued by: Supreme Judicial Court
Date: July 21, 1993
Respondent: John M. Whalen
Bar Number: 000827
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas F. Malone, Jr.
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Docket No.: BAR-90-13, 91-33, 93-9
Issued by: Supreme Judicial Court
Date: December 3, 1993
Respondent: Thomas F. Malone, Jr.
Bar Number: 001813
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Thomas E., Audet
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Docket No.: BAR-93-8, 93-22
Issued by: Supreme Judicial Court
Date: December 13, 1993
Respondent: Thomas E., Audet
Bar Number:
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Brian L. Datson
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Docket No.: BAR-94-3, 95-4
Issued by: Supreme Judicial Court
Date: June 14, 1995
Respondent: Brian L. Datson
Bar Number: 003558
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Richard B. Slosberg
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Docket No.: BAR-92-13, 93-3, 95-9
Issued by: Supreme Judicial Court
Date: March 21, 1996
Respondent: Richard B. Slosberg
Bar Number: 003446
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Albert P.C. Lefebvre
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Docket No.: BAR-98-4
Issued by: Supreme Judicial Court
Date: October 20, 1998
Respondent: Albert P.C. Lefebvre
Bar Number: 002800
Order: Suspension
Disposition/Conduct:
Board of Overseers of the Bar v. Lenore Anderson
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Docket No.: BAR-01-04
Issued by: Supreme Judicial Court
Date: May 5, 2003
Respondent: Lenore Anderson
Bar Number: 003071
Order: Order and Decision
Disposition/Conduct:
Board of Overseers of the Bar v. Jay H. Otis, Esq.
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Docket No.: GCF# 12-128
Issued by: Grievance Commission
Date: January 15, 2013
Respondent: Jay H. Otis, Esq.
Bar Number: 002741
Order: Findings
Disposition/Conduct: Finding of Probable Cause for Supreme Court hearing
REPORT FINDING OF PROBABLE CAUSE FOR FILING OF INFORMATION WITH COURT M. Bar R. 7.1(e)(3)(c), 4
This matter was heard by GCF Panel Con January 2, 2013 at the Cumberland County Superior Court in Portland, Maine. Pursuant to a Disciplinary Petition dated October 10, 2012, and proper notice being provided, a disciplinary hearing open to the public was conducted pursuant to M. Bar R. 7.l(e)(l),(2) to determine whether grounds exist for the issuance of a reprimand or whether probable cause exists for the filing of an information with the Court. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee.
The hearing was scheduled to start at 9:00 am. On the morning of the hearing, Assistant Bar Counsel received word that Attorney Otis was having car trouble and would be late for the hearing. At Attorney Otis' request, the hearing was continued until 9:45. At 9:45, Assistant Bar Counsel contacted Attorney Otis and was advised that he was still over an hour away from the courthouse. The Panel went forward with the hearing and heard the testimony of the complainant, Jill Kraemer. Ms. Kraemer lives in Rhode Island and had driven to Portland on January l, 2013 to make sure she was present for the hearing. After completion of the testimony of Ms. Kraemer and the presentation of Assistant Bar Counsel, Attorney Otis had still not arrived at the hearing. He advised that he was in the Waterville area. The Panel decided to suspend the hearing and asked Assistant Bar Counsel to wait for Attorney Otis and advise him that the Panel had given him until close of business on Wednesday, January 9, 2013, to make any written submission he thought appropriate. Attorney Otis was advised that he could request that the Panel conduct a follow-up hearing and that he could also obtain a copy of the transcript of the January 2, 2013 hearing from the court reporter. The Panel has not received any written submission from Attorney Otis or any request for a continued hearing.
Based upon the Petition, exhibits admitted, and the testimony presented at the hearing, the Panel finds there is probable cause for the Respondent's suspension or disbarment and hereby directs Bar Counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 7.2(b).
Martha C. Gaythwaite, Esq. For GCF Panel C
Board of Overseers of the Bar v. Clayton N. Howard, Esq.
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Docket No.: GCF# 10-322
Issued by: Grievance Commission
Date: January 17, 2013
Respondent: Clayton N. Howard, Esq.
Bar Number: 000115
Order: Reprimand
Disposition/Conduct: Conflict of Interest; Responsibilities of a Partner or Supervising Lawyer
STIPULATED REPORT FINDINGS AND ORDER OF PANEL B OF THE GRIEVANCE COMMISSION
On January 17, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Clayton N. Howard, Esq. (Howard). This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on December 11, 2012.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Howard was present and represented by Attorney James B. Haddow. Prior to the disciplinary proceeding, the parties had submitted a stipulated proposed sanction Report to the Panel for its review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes and now issues the following disciplinary disposition:
Respondent Clayton N. Howard of Damariscotta, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Howard was admitted to the Maine Bar in 1969 and he is currently engaged in private practice in Damariscotta, Maine.
This grievance complaint was initiated by Bar Counsel in September 2010 on a sua sponte basis under Maine Bar Rule 7.1(b) based upon references to Attorney Howard?s conduct in the Law Court?s decision of Howard v. Howard, 2010 ME 83. No complaint was otherwise filed against Attorney Howard in this matter.
Andrew Howard is the younger brother of Attorney Howard. Linda Howard is the former wife of Andrew Howard. Linda and Andrew Howard were divorced in the Maine District Court, York County (Docket No. BID-FM-02-69) by that court?s final judgment and decree dated January 10, 2008.
Although Attorney Howard did not directly do so, a partner in his law firm represented Andrew Howard throughout that divorce and the appeal to the Law Court. From the 1990s into the mid-2000s, Attorney Howard formed business entities in which he and his brother Andrew held legal interests. These entities (called the ?Howard entities?) included Howard Sports, LLC, Sierra Woods, and Saco North Street, LLC. Attorney Howard and other attorneys in his firm provided legal services to the Howard entities. During the marriage of Andrew and Linda Howard, Linda Howard was involved, to varying degrees, in the Howard entities? business operations. The divorce judgment summarized the sale by Linda and Andrew Howard of their joint assets and the subsequent reinvestment of much of those proceeds into the entities for which Andrew and Clayton were the record owners. According to the judgment, Linda had done the bookkeeping and office management for all of her and Andrew?s businesses and investments and also for the businesses in which Andrew and Clayton were the record owners.
It is Attorney Howard?s position and belief that Linda never held a formal legal interest in any of those businesses prior to their divorce. Linda was, however, aware of the legal services provided by Attorney Howard and his firm to those Howard entities, and she often communicated with Attorney Howard or others in his law firm about those services. At the very minimum, Linda believed that as a participant in the business of the Howard entities and as Andrew Howard?s spouse she therefore was a client of Attorney Howard and his law firm. The circumstances of Attorney Howard?s formation of these various business entities and his provision of legal services to them, both directly and through his law firm, were such that a reasonable person in Linda?s position could have understandably concluded that she was a client of that firm.
The evaluation and division of Andrew Howard?s interests in the Howard entities was a central element of the subject matter of Linda and Andrew Howard?s divorce proceeding. Neither Attorney Howard nor anyone else in his firm secured the informed written consent of Linda to the firm?s representation of Andrew Howard in that divorce. Although Attorney Howard was not actually Andrew?s divorce attorney, he should have had proper procedures in place at his firm to prevent the conflict of interest that occurred by a partner of his firm so serving as Andrew?s attorney in his divorce from Linda.
Attorney Howard?s conduct was therefore in violation of then applicable Maine Bar Rules 3.4(b),(d)(1) (conflict of interest) and 3.13(a)(1) (responsibilities of a partner or supervisory lawyer).
The Code of Professional Responsibility and the Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. The Panel notes Bar Counsel has confirmed that Attorney Howard received a private reprimand in 1980 (misstating matters filed in court), an informal dismissal with a warning in 1995 (conduct prejudicial to the administration of justice) and a public reprimand in 2010 for conduct (conflict of interest) similar in form to that which is involved in this unrelated matter. At the disciplinary proceeding, Attorney Howard expressed his remorse for engaging in this conflict, apologized for his actions and accepted responsibility for his violation of the then applicable Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties.
Since the evidence of misconduct supports a finding and Attorney Howard agrees he did in fact so violate the Code of Professional Responsibility, the Panel finds that its issuance of a Public Reprimand is an appropriate sanction.
Therefore, the Panel accepts the agreement of the parties including Attorney Howard?s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Clayton N. Howard, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
John R. Bass II, Esq. Chair
Maurice A. Libner, Esq.
Kenneth L. Roberts (layperson)
Board of Overseers of the Bar v. Richard D. Violette, Esq.
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Docket No.: BAR-13-2
Issued by: Maine Supreme Judicial Court
Date: January 29, 2013
Respondent: Richard D. Violette, Esq.
Bar Number: 003042
Order: Temporary Suspension
Disposition/Conduct: Improper Communication; Illegal conduct and Conduct Involving Dishonesty
ORDER OF SUSPENSION M. Bar R. 7.2(c)
By filing dated January 10, 2013 the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order temporarily suspending Richard D. Violette from the practice of law in the State of Maine. Included with the Board's Petition were related exhibits and an Affidavit of Bar Counsel.
Of note, Richard D. Violette has failed to respond to either of the involved grievance complaints in GCF #12-391 and GCF #12-404.
For good cause shown by the Board, Richard D. Violette appears to have committed numerous violations of the Maine Rules of Professional Conduct, thereby serving as a threat to clients, the public and to the administration of justice. The Court finds that Richard D. Violette's actions constitute violations of M. R. of Prof. Conduct 1.4(a); l.5(a); 8.1(b) and 8.4(a)(b)(c)(d).
Accordingly, this Court ORDERS that Richard D. Violette be suspended from the practice of law in Maine until further Order of this Court. The Court further ORDERS that the Affidavit of Bar Counsel in this matter be sealed and impounded pending further Order of this Court.
Warren M. Silver, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Peter T. Dawson, Esq.
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Docket No.: BAR-13-1
Issued by: Supreme Judicial Court
Date: February 7, 2013
Respondent: Peter T. Dawson
Bar Number: 000294
Order: Receiver Appointment
Disposition/Conduct: Receiver of Peter Dawson Law Office
Order for Appointment of Receiver M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Donald J. Gasink, Esq. is appointed the Receiver of Attorney Peter T. Dawson's law practice. Attorney Gasink shall:
Attorney Gasink shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at the State court appointment rate. The assets of Attorney Dawson shall be the first choice for source of payment to the Receiver, although ultimately, he may serve in a pro bono capacity. If insufficient assets are available from Attorney Dawson's Estate, the Board of Overseers of the Bar may be an alternate payment source for disbursements made to conclude the law practice.
Attorney Gasink shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. BarR 7.3(f).
Attorney Gasink so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. BarR 7.3(f).
Furthermore, Attorney Gasink may be engaged by any former client of Attorney Dawson provided that he informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorney Gasink is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Gasink's appointment by this Order.
Attorney Gasink shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re George F. Leahy
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Docket No.: BAR-12-10
Issued by: Supreme Judicial Court
Date: February 6, 2013
Respondent: George F. Leahy
Bar Number: 002769
Order: Reinstatement
Disposition/Conduct: Reinstatement is Dismissed as Moot
ORDER DISMISSING PETITION FOR REINSTATEMENT AS MOOT
George F. Leahy has filed a "Request for Reinstatement" to the bar. This Court imposed a two-month suspension of Leahy's right to practice law in Maine on October 3, 2012.
The Board of Overseers has filed a letter stating that it does not object to Leahy's request, but noting that M. Bar R. 7.3(j)(2) provides for an automatic reinstatement, without a petition to this Court, of an attorney suspended for six months or less. The Overseers describe Leahy's position as being that he would have a "higher degree of comfort if the Court issues an Order reinstating him."
Given that Leahy has been reinstated pursuant to M. Bar R. 7.3(j)(2) without any action of the Court, there is no effective relief that the Court can grant Leahy on his petition for reinstatement. It is therefore ORDERED that the petition for reinstatement is DISMISSED as moot.
For the Court,
Warren M. Silver
Associate Justice
Board of Overseers of the Bar v. David G. Coolidge, Esq.
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Docket No.: GCF# 12-040
Issued by: Grievance Commission
Date: February 19, 2013
Respondent: David G. Coolidge, Esq.
Bar Number: 009519
Order: Dismissal with Warning
Disposition/Conduct: Failure to Respond to Bar Counsel and Failure to Comply with Procedural Requirements of the Maine Bar Rules
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION
M. Bar R. 7.1(e)(2)(3)(4)
On February 19, 2013, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, David G. Coolidge, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar on December 21, 2012.
Coolidge attended the hearing with his attorney, Louise K. Thomas, Esq. The Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had filed and submitted a stipulated, proposed Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
David Coolidge was, until the imposition of an administrative suspension by the Board on October 18, 2011, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. He was admitted to the Maine Bar in 2003.
On October 18, 2011 Coolidge was administratively suspended by the Board due to his failure to file his annual registration statement, pay the annual fee and complete the proper credit hours of continuing legal education as required by Maine Bar Rules 6(a)(1), 10(a) and 12(a)(1), respectively. He also did not thereafter file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as is required to occur within 30 days after that suspension date.
By a certified letter of December 15, 2011, Bar Counsel notified Coolidge of the consequence of his failure to file that required affidavit. On or about December 18, 2011 Coolidge accepted and received that certified mailing from Bar Counsel concerning Coolidge?s failure to comply with Maine Bar Rule 7.3(i)(2). Coolidge failed to meet Bar Counsel?s response filing deadline of January 2, 2012.
As a result, on January 25, 2012, Bar Counsel initiated and docketed a sua sponte grievance complaint against Coolidge for his failure to comply with that affidavit requirement. Coolidge failed to respond to Bar Counsel?s requests for information in the investigation of this grievance matter, in violation of M. R. Prof. Conduct 8.1(b).
On August 28, 2012 a panel of the Grievance Commission reviewed Coolidge?s actions and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
On December 3, 2012 Coolidge filed a Petition for Reinstatement with the Board. In his very complete and thorough reinstatement filing, Coolidge confirmed that emotional depression and other stressors related to the finalization of his divorce in 2011 had caused his failure to properly file the required notification affidavit concerning his suspension from practice in 2011. Coolidge then paid all past due amounts to the Board, including reinstatement fees. He also then correctly filed his ?Suspension Notice Affidavit? and therein affirmed that at the time of his administrative suspension in 2011 he had no current clients to so notify that he was suspended from practice. Pursuant to M. Bar R. 7.3(j)(5), on December 19, 2012 the Board reviewed Coolidge?s Petition for Reinstatement and then unanimously voted to recommend that the Court approve Coolidge?s reinstatement to practice law in Maine. By its Order that became mandated on January 4, 2013, the Court reinstated Coolidge to the bar of the State of Maine effective immediately.
Attorney Coolidge agrees that he violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). He regrets those errors, has corrected them and has been reinstated to practice law in Maine effective January 4, 2013.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to clients and the courts. Attorney Coolidge violated his duties to the legal system by failing to complete the annual registration requirements in 2011 and by failing to file the required notification affidavit once he was administratively suspended. Such misconduct caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There are no aggravating circumstances. There are, however, several mitigating circumstances. This is the only instance of misconduct by Attorney Coolidge since being admitted to the Maine bar in 2003. It is not the result of dishonest or selfish motives and occurred during a time of personal emotional difficulty and depression that he has taken proper steps to address. There was no injury to any Maine clients as a result of his misconduct. Attorney Coolidge has taken responsibility for his transgressions. At the disciplinary hearing, he expressed remorse for his violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct, and apologized to Bar Counsel and the Grievance Commission.
Because the misconduct was minor, there was no harm to any clients, little harm to the profession and the misconduct appears very unlikely to be repeated by Attorney Coolidge, the Panel accepts the agreement of the parties, including Attorney Coolidge?s separately executed waiver of the right to file a Petition for Review. As a result, the Panel concludes that the appropriate disposition of this case is a public Dismissal With a Warning to Attorney David G. Coolidge which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(B),(4).
For the Panel:
Victoria Powers, Esq. - Chair
John C. Hunt, Esq.
Marge M. Medd
Board of Overseers of the Bar v. John M. Whalen, Esq.
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Docket No.: GCF# 11-310
Issued by: Grievance Commission
Date: March 1, 2013
Respondent: John M. Whalen, Esq.
Bar Number: 000827
Order: Reprimand
Disposition/Conduct: Conflict of Interest; Conduct prejudicial to the administration of justice; Failure to return client property
STIPULATED REPORT FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4)
On March 1, 2013, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, John M. Whalen, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 27, 2012.
At the hearing the Board was represented by Assistant Bar Counsel Aria Eee. Attorney Whalen attended the hearing and was represented by Attorney Phillip Johnson. Complainant, Coleman Coyne, Esq. did not attend the hearing but was provided with a copy of the parties? settlement proposal in advance of the hearing. Prior to the disciplinary proceeding, the parties submitted a stipulated, proposed Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent John M. Whalen of Lewiston, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Whalen was admitted to the Maine Bar in 1971 and maintains a law office as a solo practitioner.
On September 21, 2011 Attorney Coleman Coyne filed a grievance complaint against Attorney Whalen. The complaint alleged that Whalen engaged in multiple conflicts of interest, fraudulent behavior and a failure to relinquish control as Trustee of The Pineland Securities Trust. Attorney Whalen drafted that Trust in January 1993 on behalf of one of its Settlors, Henry Tukey. Both during and after the Tukeys divorce, Attorney Coyne served as counsel for Ms. Tukey, the surviving Pineland Trust Settlor. Mr. Tukey died in 2009 and Whalen succeeded him as Trustee of that Trust.
In November 2010, Ms. Tukey terminated Attorney Whalen as Trustee and she appointed a successor to take over management of the Trust. Despite an initial belief based on proceedings in Probate Court that his conduct was not violative of the professional conduct rules, Attorney Whalen has since acknowledged various errors on his part. In that regard, Whalen agrees it was improper for him to fail to abide by Ms. Tukey?s instructions to withdraw as Trustee of the Pineland Trust. His failure to withdraw constituted violations of M. R. Prof. Conduct 1.7(a) and 8.4(a)(d). Through that inaction, Attorney Whalen also failed to relinquish trust assets to the successor Trustee, in violation of M. R. Prof. Conduct 1.15(f) and 8.4(a)(c)(d). Moreover, Whalen at times failed to protect and preserve the Trust assets and instead, acted on behalf of parties who had interests adverse to the Trust and its beneficiaries. In doing so, Attorney Whalen engaged in multiple representations of various parties in violation of M. R. Prof. Conduct 1.7.
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Whalen?s above-outlined failures, the Pineland Securities Trust and its beneficiaries were not adequately served or protected. The resulting dispute between the Trust beneficiaries and other interested parties was both costly and avoidable. The Panel notes and appreciates that Attorney Whalen has taken responsibility for his transgressions. At the disciplinary hearing, Whalen expressed his remorse for his violations of the Maine Rules of Professional Conduct.
The Panel is aware that Attorney Whalen has an earlier history comprising three separate significant disciplinary sanctions issued between 1997-2001 for conduct both similar and dissimilar to that which occurred in his dealings with the parties involved in the instant matter. Notably, those sanctions all occurred after contested hearing and the Panel appreciates Attorney Whalen?s candor to resolve this disciplinary matter by agreement rather than contest.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. Since the evidence supports a finding and Attorney Whalen agrees and admits that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Whalen?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to John M. Whalen, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C),(4).
For the Panel:
James A. McKenna III, Esq. Chair
Mary A. Denison, Esq.
Emilie van Eeghen (public member)
Board of Overseers of the Bar v. Patrick E. Hunt, Esq.
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Docket No.: GCF# 11-306
Issued by: Grievance Commission
Date: March 4, 2013
Respondent: Patrick E. Hunt, Esq.
Bar Number: 002707
Order: Dismissal with Warning
Disposition/Conduct: Meritorious Claims and Contentions; Conduct prejudicial to the Administration of Justice
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL A OF THE GRIEVANCE COMMISSION
M. Bar R. 7.1(e)(3)(B)(4)
On March 4, 2013, with due notice Panel A of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Patrick E. Hunt, Esq. The hearing was convened pursuant to Maine Bar Rule 7.1(e)(2)(E) and had been commenced by the Board of Overseers of the Bar?s September 12, 2012 filing of a Disciplinary Petition.
At the March 4, 2013 hearing the Board was represented by Assistant Bar Counsel Aria Eee. Attorney Hunt was represented by Attorney Theodore H. Kirchner. Complainant Carol J. Farrar also attended the stipulated hearing and had been provided with a copy of the parties? settlement proposal in advance of that hearing. Prior to the disciplinary proceeding, the parties submitted a stipulated proposed Report of Findings and Order for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Patrick E. Hunt (Hunt) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Hunt was admitted to the Maine Bar in 1983 and maintains a law office as a solo practitioner in Island Falls, Maine.
In September 2011 Carol Farrar (Farrar) filed a grievance complaint against Hunt related to his conduct during small claims litigation between Hunt?s client and Farrar. In the complaint, Farrar alleged that Hunt acted improperly and made misrepresentations about her to the Wiscasset District Court. Of note, Hunt did not enter an appearance in that small claims litigation until after his client had defaulted the initial judgment. Hence, neither he nor his client was present for the court proceedings as there was no dispute that the client owed the amount claimed.
Despite Hunt?s initial belief that his behavior was compliant with the professional conduct rules, he has since acknowledged certain failings. In that regard, Hunt agrees it was improper for him to presume the timing of Farrar?s receipt of his client?s proposed settlement check, even though his client mailed her check three days prior to the hearing date of May 17, 2011. On that errant presumption, Hunt subsequently argued to the District Court that Farrar made misrepresentations within her own court filings. In doing so, Hunt engaged in violations of M. R. Prof. Conduct 3.1(a) and 8.4(d).
The Panel finds, however, that Hunt?s misconduct was minor and caused nominal injury to the public and the profession. Based upon his remarks to the Hearing Panel, it is expected that Hunt will not repeat such behavior in future litigation matters. Accordingly, the Panel agrees the required elements of the ?warning rule? M. Bar R. 7.1(e)(3)(b) are present in this matter.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Hunt?s above-outlined failures, Ms. Farrar was wrongly characterized as not candid before the District Court. The resulting dispute was ultimately resolved but Farrar was understandably upset at the error by a member of the Maine bar. Both before and at the disciplinary hearing, Hunt apologized to Farrar and expressed remorse for his violations of the Maine Rules of Professional Conduct.
The Panel is aware that Hunt has an earlier history of attorney discipline, which has included a brief suspension followed by a monitoring of his practice. Notably, that prior misconduct largely concerned Hunt?s work on behalf of clients, whereas the instant matter related to Hunt?s treatment of an adverse party during contested litigation before a tribunal.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. Since the evidence supports a finding and Hunt agrees and admits that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a dismissal with a warning serves those purposes.
Therefore, the Panel accepts the parties? agreement and proposed Report. That proposal includes Hunt?s separately executed waiver of the right to file an Objection to that Report. Accordingly, the Panel concludes that the appropriate disposition of this case is a Dismissal with a Warning to Attorney Patrick E. Hunt, which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B),(4).
M. Ray Bradford, Esq., Chair
Sarah McPartland-Good, Esq.
Norman A. Ross (Layperson)
Board of Overseers of the Bar v. In Re Richard D. Violette, Jr.
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Docket No.: 1:13-mc-27-JAW
Issued by: Chief United States District Judge
Date: March 5, 2013
Respondent: Richard D. Violette, Jr.
Bar Number: 003042
Order: Suspension
Disposition/Conduct: Related Maine Supreme Judicial Court?s Order dated 1/29/13
Respondent Richard D. Violette, Jr., having shown no good cause why this Court should not impose the identical discipline imposed upon him on January 29, 2013, by the Maine Supreme Judicial Court, it is hereby ORDERED, pursuant to Local Rule 83.3, that this Court imposes the identical discipline. Richard D. Violette, Jr. is hereby suspended from the practice of law in this Court, effective immediately.
FOR THE COURT
John A. Woodcock, Jr. ? Chief United States District Judge
Board of Overseers of the Bar v. Charles T. Ferris, Esq.
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Docket No.: GCF# 12-110
Issued by: Grievance Commission
Date: March 8, 2013
Respondent: Charles T. Ferris, Esq.
Bar Number: 007550
Order: Findings
Disposition/Conduct: Rejection of Stipulated Sanction
REPORT OF FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION
Pursuant to a Disciplinary Petition dated October 5, 2012, a stipulated disciplinary hearing open to the public was scheduled for March 1, 2013 at 1:30 p.m., with proper notice provided to all parties. The members of Grievance Panel D were present at the Board of Overseers of the Bar in Augusta, Maine. The Board of Overseers of the Bar was represented by Bar Counsel Scott Davis. The Respondent was represented by Counsel, and was present and testified. Taking all of the proffered evidence and comments presented at the hearing in the light most favorable to the stipulated proposed disposition the panel is unable to conclude that the proposed Findings and Order is the appropriate disposition of this matter. The issues raised by the public comments deserve formal consideration at a disciplinary hearing. Accordingly, pursuant to Maine Bar Rule 7.1(d)(5), the office of Bar Counsel will prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 7.l(e). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
James A. McKenna III, Esq. Chair
Board of Overseers of the Bar v. John D. Griffin, Esq.
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Docket No.: BAR-13-4
Issued by: Supreme Judicial Court
Date: March 18, 2013
Respondent: John D. Griffin, Esq.
Bar Number: 001528
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment re: John D. Griffin?s Law Practice
Order for Appointment of Limited Receiver M. Bar R. 7.3(f)(1)
Upon the Petition for Appointment of Limited Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, Jon S. Oxman, Esq. is appointed the Limited Receiver of Attorney John D. Griffin's law practice. Pursuant to this Order for Appointment, Attorney Oxman shall:
Finally, within one hundred twenty (120) days of this Order, Receiver Oxman shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Bar Counsel J. Scott Davis, Esq.
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jay H. Otis, Esq.
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Docket No.: BAR-13-7
Issued by: Maine Supreme Judicial Court
Date: March 26, 2013
Respondent: Jay H. Otis, Esq.
Bar Number: 002941
Order: Suspension
Disposition/Conduct: Failure to Communicate; Excessive Fee; Failure to Return Client Funds/Property; Failure to Respond to Disciplinary Authority; Commission of Unlawful Act which reflects adversely on Lawyer's trustworthiness and fitness to practice
ORDER OF SUSPENSION M. Bar R. 7.2(c)
By filing dated March 20, 2013 the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order temporarily suspending Jay H. Otis from the practice of law in the State of Maine. Included with the Board?s Petition were related exhibits and an Affidavit of Assistant Bar Counsel.
Of note, Jay H. Otis has failed to respond to any of the involved grievance complaints or related fee arbitration and Lawyer?s Fund for Client Protection claim(s).
For good cause shown by the Board, Jay H. Otis appears to have committed numerous violations of the Maine Rules of Professional Conduct, thereby serving as a threat to clients, the public and to the administration of justice. The Court finds that Attorney Otis?s actions constitute violations of M. R. of Prof. Conduct 1.4(a); 1.5(a); 8.1(b) and 8.4(a)(b)(d).
Accordingly, this Court ORDERS that Jay H. Otis be suspended from the practice of law in Maine until further Order of this Court. The Court further ORDERS that the Affidavit of Assistant Bar Counsel in this matter be sealed and impounded pending further Order of this Court.
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jay H. Otis
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Docket No.: BAR-13-7
Issued by: Supreme Judicial Court
Date: April 4, 2013
Respondent: Jay H. Otis
Bar Number: 002941
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment re: Jay H. Otis' Law Practice
Order for Appointment of Limited Receiver M. Bar R. 7.3(f)(1)
Upon the Petition for Appointment of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Attorneys Barbara Cardone and Roberta Winchell (Cardone & Winchell, LLC) are appointed the Receivers of (suspended) Attorney Jay R. Otis?s law practice. Attorneys Cardone and Winchell shall:
As a service to the bar, Attorneys Cardone and Winchell acknowledge that they shall serve as Receivers on a pro bono basis, although if there are sufficient assets from the Otis law practice, Cardone & Winchell, LLC may be reimbursed from those assets. The Receivers shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, the Receivers shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Otis and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Otis, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorneys Cardone and Winchell shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Cardone & Winchell, LLC so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorneys Cardone and Winchell [Cardone & Winchell, LLC] may be engaged by any former client of Mr. Otis?s provided that the Receiver informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receivers? employment by the client.
The Receivers are subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client?s retention of the Receivers as successor counsel is not a per se conflict of interest solely by reason of Attorneys Cardone?s and Winchell?s appointment by this Order.
Attorneys Cardone and Winchell and Cardone & Winchell, LLC shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receivers shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Assistant Bar Counsel Aria Eee, Esq.
Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jay H. Otis
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Docket No.: BAR-13-7
Issued by: Maine Supreme Judicial Court
Date: April 11, 2013
Respondent: Jay H. Otis
Bar Number: 002941
Order: Order and Decision
Disposition/Conduct: Supplemental Order
ORDER
On April 11, 1013 the Board of Overseers of the Bar filed additional pleadings related to the Receivership of suspended attorney Jay H. Otis?s law practice. Within those pleadings the Board requested that this Court issue a supplemental Order in this matter.
Following review of the Board?s request and incorporated Affidavits, the Court Orders the following:
Beginning at 10:00 a.m. April 12, 2013, Jay H. Otis is required to:
? R. D. Faulkner Office Building
? Jay Otis law office
? Law office mailbox
Mr. Otis shall be served in-hand with a copy of this Order. Mr. Otis may have the right to be heard upon his filing of such a request.
This Order is effective immediately and any failure to comply with its terms is enforceable by contempt.
Dated: April 11, 2013
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Kevin S. Wellman
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Docket No.: BAR-85-89
Issued by: Supreme Judicial Court
Date: January 4, 1993
Respondent: Kevin S. Wellman
Bar Number: 004955
Order: Reinstatement Denied
Disposition/Conduct:
Board of Overseers of the Bar v. Kevin S. Wellman
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Docket No.: BAR-85-89
Issued by: Supreme Judicial Court
Date: October 15, 1985
Respondent: Kevin S. Wellman
Bar Number: 004955
Order: Reciprocal Discipline
Disposition/Conduct:
Board of Overseers of the Bar v. Kevin S. Wellman
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Docket No.: BAR-85-89
Issued by: Grievance Commission
Date: September 21, 1992
Respondent: Kevin S. Wellman
Bar Number: 004955
Order: Findings
Disposition/Conduct:
Board of Overseers of the Bar v. Kevin S. Wellman
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Docket No.: BAR-85-89
Issued by: Supreme Judicial Court
Date: October 10, 1991
Respondent: Kevin S. Wellman
Bar Number: 004955
Order: Reciprocal Discipline
Disposition/Conduct:
Board of Overseers of the Bar v. Wayne B. Hollingsworth
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Docket No.: GCF# 01-012G
Issued by: Supreme Judicial Court
Date: February 13, 2002
Respondent: Wayne B. Hollingsworth
Bar Number: 002356
Order: Disbarment
Disposition/Conduct: Reciprocal Discipline
ORDER OF DISBARMENT
The Court having received a certified copy of the Order of the Supreme Judicial Court of the Commonwealth of Massachusetts dated December 21, 2000, disbarring the above-named Wayne B. Hollingsworth from the practice of law; and having ordered that pursuant to Maine Bar Rule 7.3(h)(1), Wayne B. Hollingsworth shall, within 30 days from service of this Order, inform this Court of any claim that the imposition of identical discipline upon him in this State would be unwarranted and the reasons therefore; and having heard from Wayne B. Hollingsworth that in his opinion and in the opinion of his counsel he was unfairly prevented from challenging the complainant's credibility and that, as a result, he was disbarred; because, however, Wayne B. Hollingsworth has not established that
(i) the procedure in Massachusetts did not provide reasonable notice or opportunity to be heard; (ii) there was significant infirmity of proof establishing the misconduct; (iii) imposition of the same discipline would result in grave injustice; or (iv) the misconduct established does not justify the same discipline in this State.
It is hereby ORDERED that pursuant to Maine Bar Rule 7.3(h)(3) Wayne B. Hollingsworth be disbarred from the practice of law in the State of Maine.
Howard H. Dana, Jr.
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: GCF# 11-356; 11-386 & 12-148
Issued by: Grievance Commission
Date: April 24, 2013
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Reprimand Dismissal with Warning
Disposition/Conduct: Commission of an unlawful/criminal act; Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and prejudicial to the administration of justice; Improperly charging a non-refundable retainer; Failure to return client money
On April 2, 2013, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Bar Rule 7.1(e)(1) concerning misconduct by the respondent, Anthony P. Shusta, II, Esq. (Shusta). This disciplinary proceeding had been commenced by the filing of a Disciplinary petition by the Board of Overseers of the Bar (the Board) on September 4, 2012. At issue were three separate Counts: GCF #11-386, GCF #11-356 and GCF #12-148.
Present at the hearing were Bar Counsel J. Scott Davis, representing the Board, and Attorney Peter J. DeTroy, representing respondent Shusta.
The Parties? Joint Exhibits 1 through 30 were admitted without objection. In addition, during the course of the hearing Exhibits 31 through 38 were admitted without objection.
The following witnesses testified at the hearing:
Anthony P. Shusta, Esq.
Assistant Attorney General Steven Parker
Assistant District Attorney James Andrews
Maine State Police Trooper Aaron M. Turcotte
Maine State Police Trooper Peter Michaud
Raymond Sheehan
Laney Blyn
Debbie A. Armiger (by phone)
Attorney Philip Mohlar
William Nugent, Director of the Maine Assistance Program for Lawyers
M. Bar R. 2(a) provides that the purpose of a bar disciplinary proceeding is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated they are unable to properly discharge their professional duties. Among the factors to be considered are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, the existence of any aggravating or mitigating circumstances.
General Findings
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings and conclusions concerning the Complaint?s three Counts.
Respondent is, and was at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in the state of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Shusta conducts his law practice as a sole practitioner located in Madison, ME.
The panel will discuss each of the Complaint?s three Counts in their chronological order.
GCF #11-386: Shusta 11/29/2011 Guilty Plea to a Charge of Failing to Make Oral or Written Accident Report (Count II)
On December 10, 2010 Shusta, driving alone, was involved in a single motor vehicle accident on Rt. 148 in Industry, ME. The accident occurred at approximately 9:00 p.m. Shusta had driven his Cadillac Escalade approximately 70 feet off the roadway and into a wooded area. The damage to the front end of the vehicle was extensive and would cost well above $1,000 to repair.
Mr. Shusta used a passerby?s cell phone to call Ray Sheehan, owner of Ray?s Garage. Shusta had known Sheehan for many years. While Shusta waited for Sheehan?s tow truck, a nearby resident named Blyn Laney offered to let him rest in his mother?s house. As they walked to the house Shusta asked Laney if he had any ?booze? in the house. When they arrived at the house Shusta proceeded to drink approximately 1/2 of a quart bottle of whiskey. Laney cautioned him about drinking whiskey after a crash and Shusta told him that he was a lawyer and knew the law and that he could take a drink. Shusta stated he paid Laney $100 for the drink of whiskey because he felt he needed money. In his testimony to the Panel, Laney was clearly troubled by his responsibility in giving Shusta the whiskey.
When Sheehan arrived with his tow truck he inspected the Escalade and found that it had suffered substantial damage. Sheehan told Shusta he would not tow the vehicle unless a police officer was present. Shusta insisted that the police not be called. He kept telling Sheehan, over and over (perhaps 15 times), that he had drank after the accident. When Sheehan told Shusta that if the police were not going to be called that he was going back to his shop, Shusta begged Sheehan to give him a ride home. Sheehan responded that Sheehan would be leaving the scene of a crime and Shusta told him that was his choice. On the drive to Shusta?s residence, Sheehan said Shusta was so drunk that he had to lock the passenger side door because Shusta kept falling over.
When Sheehan told Shusta he was going to call the police, Shusta told him ?do whatever you?ve got to do.? After leaving Shusta at his residence, Sheehan called the State Police.
In response, Trooper Turcotte arrived at the accident and inspected the crashed Escalade. He stated there was a strong smell of alcohol and suspected the operator had fled the accident scene in order to avoid an OUI charge. Turcotte?s subsequent investigation included interviews with three persons who had witnessed Shusta near the time of the accident (before and immediately after). None stated they thought him to be intoxicated.
Shusta stated he had been going through a very painful and contested divorce. When his car went off the road and was seriously damaged, he thought that he ?just didn?t want to deal with it [the crash].? Also, in a December 23, 2011 letter to Bar Counsel Davis (Exhibit 18) due to his contested divorce he had a ?desire to avoid personal confrontations.? He also stated that: ?By the time the wrecker arrived, I felt I would not be treated fairly by the police and decided it would be best to allow an attorney to handle the matter for me.?
The State Police immediately attempted to talk to Shusta in his residence in Madison, ME. Despite multiple attempts to contact him (phone calls, messages, knocking on his door), Shusta refused to talk to the police. Shusta then hired attorney Philip Mohlar and asked him to contact the police.
Attorney Mohlar?s investigation of the crash on behalf of Shusta was centered on evidence that could show Shusta had not been operating his vehicle under the influence of alcohol. Mohlar did state that in his experience it was not an unknown tactic for someone worried about a possible OUI charged to take a drink immediately after the accident had occurred. Eventually, on November 29, 2011 Shusta pled guilty to a Class E charge of Failing to Make Oral or Written Accident Report. He was fined $1,000 and his driver?s license was suspended for 30 days.
On November 29, 2011 Assistant Attorney General Steven A. Parker filed a grievance complaint with Board against Shusta. Parker filed this complaint when he became aware of Shusta?s guilty plea and of the December, 2010 circumstances that gave rise to that plea.1
GCF #11-386 Conclusion: Public Reprimand
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and courts. In addition, under M. Bar R. 2 (a) and M. R. Prof. Conduct 8.4 Maine?s professional conduct rules are applicable to Maine attorneys even if a client had not been harmed. This latter possibility is the one raised by GCF #11-386.
In this case Shusta actions were an intentional attempt to avoid his legal obligations when involved in a serious motor vehicle crash. While he was not charged with OUI his actions after the crash?heavy drinking, not reporting the crash to law enforcement, avoiding police inquiries?gave at least the appearance he was a lawyer scheming to avoid being charged with OUI. Further, his attempt to persuade Ray Sheehan to collaborate in his criminal refusal to report the crash potentially involved Sheehan in his illegal plan. Shusta?s actions were in violation of the following provisions of M. R. Prof. Conduct 8.4:
(b) commit a criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
The fact that Shusta was at that time engaged in the dissolution of his marriage does not mitigate the seriousness of his actions.
Pursuant to M. Bar R. 7.1 (e) (3) (C), for the above reasons the Panel finds that the appropriate disposition of GFC No. 11-386 is a Public Reprimand.
GCF # 11-356: Shusta 12/21/11 Guilty Plea to Driving Under the Influence (Count 1)
Findings
On September 10, 2011 Shusta was charged with operating his vehicle under the influence (OUI). On that date, shortly prior to 6:30 p.m. different motorists had informed officials at the Gardiner toll booth of the erratic operation of a black Cadillac Escalade SUV. Shortly thereafter a Topsham police officer stopped that Escalade, operated by Shusta, for excessive speed and improper passing on Interstate 295. Shusta?s blood alcohol level was found to have been .26.
On December 21, 2011 Shusta pled guilty to Class D OUI. He was fined $640 and lost his license for 90 days. This OUI incident occurred 9 months after Shusta?s failure to report the crash of his Escalade in Industry, ME.
As a result of his OUI charge, Shusta contacted Maxine Wolfe-Johnson, LADC, LSW, SAP, a substance abuse counselor, and in October, 2011 attended six one hour counseling sessions. Ms. Wolf on October 28, 2011 made the following conclusions as to his treatment:
Mr. Shusta has been fully engaged in the counseling process, and has been compliant with all requirements. He has demonstrated good insight and self-awareness. As of today, the treatment process is successfully completed and there are no further requirements or recommendations.
Hearing Exhibit #22.
At the Board hearing, Shusta testified that at the time of the OUI incident he had had been going through a very contentious separation and divorce proceeding. He stated that he and his wife have now reconciled and that he now drinks very little and does not drink when he will be driving.
By letter of November 3, 2011 with included documents, Assistant District Attorney (ADA) Patricia Madore, Maine Prosecutorial District VI, informed Bar Counsel of Shusta?s then pending charge of criminal Operating Under the Influence of Intoxicating Liquor (OUI) in the West Bath District Court. As a result of ADA Madore?s filing Bar Counsel initiated a sua sponte grievance against the respondent under M. Bar R. 7.1 (b).
GCF # 11-356 Conclusion: Dismissal with Warning
The Panel realizes that pursuant to M. R. Prof. Conduct 8.4 (b) it is misconduct to commit a criminal act ?that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects.? Shusta?s OUI conviction did not directly affect his representation of a client?s interest. Further, Shusta sought professional substance abuse counseling. The Panel is hopeful that this counseling will prevent Mr. Shusta from drinking and driving in the future. For these reasons the Panel is persuaded that Shusta?s Class D OUI conviction did not constitute a major injury to the legal system or the profession.
Nonetheless, Shusta?s .26 blood alcohol level and his erratic driving did indeed pose a threat to the public. Further, his OUI followed on his actions described in GCF 11-386, which also involved excessive drinking. The Panel hereby finds Shusta in violation of M. R. Prof. Conduct 8.4:
(b) commit a criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects.
The fact that Shusta was at that time engaged in the dissolution of his marriage does not mitigate the seriousness of his actions.
For these reasons, pursuant to M. Bar R. 7.1 (e) (3) (B), the Panel finds that the appropriate disposition of GFC #11-356 is to issue to Attorney Shusta a Dismissal with a Warning against future drinking and driving.
The Panel recommends that Attorney Shusta consider making use of the Maine Assistance Program for Lawyers. We recognize that Attorney Shusta did seek help after the OUI but feel that more assistance may be helpful as mental health and substance abuse issues can recur.
GCF #12-148: Use of a Non-Refundable Fee Agreement (Count III)
Findings
On April 23, 2012 Debbie A. Armiger (Armiger) filed a grievance complaint against Shusta, her attorney. He was representing her in a grandparents? right case. In her complaint Armiger claimed that Shusta failed to communicate with her and charged her for services he did not perform.
Armiger initially hired and paid Shusta a ?nonrefundable? $1,000 retainer fee. Armiger lives in New Jersey and has never met Shusta in person. She initially agreed to the $1,000 fee in a phone conversation with Shusta and then mailed him the money. Later she received in the mail an ?Hourly Fee Agreement? for her signature which designated her initial $1,000 payment as ?nonrefundable.? Paragraph 4 of this agreement reads in full:
4. The undersigned shall pay a non-refundable retainer of $1,000. The retainer is non-refundable because it insures the services of this law firm and prevents this law firm from taking a provision adverse to the client. The Law Offices of Anthony P. Shusta II, shall initially bill for fees and expenses against the retainer, with bills provided to the undersigned to show the use of the retainer. When $750 of said retainer is used, the undersigned shall replace said $1,000 retainer to ensure payment of further fees and expenses. This payment arrangement shall continue until the case is concluded. In the event there is an outstanding balance, the balance will accrue interest at the rate of $18 per year. If collection action is taken, client will be responsible for all fees and costs incurred.
Exhibit #27.
Armiger testified by phone that during the phone call Shusta had not told her that the $1,000 was non-refundable or that Shusta?s services would cost a minimum of $1,000. Shusta admitted that it has long been his practice to charge his clients non-refundable retainers.
Shusta proceeded to send a letter to Armiger?s son, the father of Armiger?s grandchild. After the letter had been sent Armiger received from Shusta the Hourly Fee Agreement that stated the $1,000 she had already paid was non-refundable. Armiger testified that she did not want to sign it but since thought she ought to since Shusta had already sent her son a letter. On 12/15/ 2011 she signed the agreement and returned it to Shusta.
In January Armiger began to leave phone messages for Shusta, attempting to end her employment of Shusta. She testified that she was not wealthy and that Shusta held her $1,000 and all she had gotten out of it was a letter. Despite the fact that Paragraph 4 of the Agreement stated that Shusta would send Armiger bills that would show how the retainer was used, he did not do so. On January 28, 2012 she sent Shusta an email that read in part:
When we first spoke and you asked me for a retainer fee, you did not mention that it was ?non refundable?. I am sure the letter you wrote did not take long. Therefore I am expecting a check for my balance that you are holding. I never received any type of accounting to indicate my unused balance but I am sure it is substantial.
Exhibit #37.
In his testimony at the hearing Shusta confirmed that his work for Armiger consisted of the letter sent to her son and that this amounted to one billable hour at a cost of $210.
Armiger several times a week made calls and left messages but she did not talk to Shusta until March 23, 2012. Armiger demanded back whatever was left of her $1,000. She testified that Shusta was adamant that the fee was nonrefundable and that he told her it was because he had to retain her files for eight years. Eventually, he agreed to bargain as to how much should be returned and Shusta agreed to return to her $400. Four weeks passed and she still had not receive the agreed upon $400. Armiger?s complaint to the Board was dated April 23, 2012. She complained to the Board because she believed Shusta was taking advantage of her. At approximately the same date as her complaint Armiger received from Shusta a check for the promised $400.
GCF #12-148 Conclusion: Public Reprimand
The Panel finds that:
Shusta?s requirement that Armiger pay a nonrefundable retainer resulted in numerous violations of the Maine Rules of Professional Conduct (MRPC). Specifically:
In addition to the above MRPC violations, the Panel also finds that Shusta has violated Professional Misconduct Rule 8.4 (a) (violation of any MRPC) and (d) (conduct that is prejudicial to the administration of justice).
Pursuant to M. Bar R. 7.1 (e) (3) (C ), for the above violations the Panel finds that the appropriate disposition of GFC No. 12-148 is to issue to Attorney Shusta a Public Reprimand.
Further, the Panel recommends that Shusta notify any client whose current Hourly Fee Agreement contains a nonrefundable retainer that all unearned fees will be refunded.
Dated: April 24, 2013
James A. McKenna, Esq. - Panel Chair
Mary Denison, Esq., Panel Member
Emilie van Eeghen, Public Member
1 Assistant District Attorney James Andrews, who assisted in preparing the Shusta arrest warrant, also drafted a grievance complaint. In an apparent error it was never sent to the Board.
2 See also Maine Board of Overseers of the Bar Opinion # 206: Non-refundable Flat Fee Agreements (December 12, 2012).
Board of Overseers of the Bar v. Curtis G. Webber, Esq.
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Docket No.: 83-84
Issued by: Board of Overseers of the Bar
Date: October 20, 1983
Respondent: Curtis G. Webber, Esq.
Bar Number: 000373
Order: Dismissal
Disposition/Conduct:
Board of Overseers of the Bar v. Carol J. Webb
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Docket No.: BAR-13-5
Issued by: Supreme Judicial Court
Date: May 9, 2013
Respondent: Carol J. Webb
Bar Number: 009122
Order: Reprimand
Disposition/Conduct: Diligence; Communication; Failure to notify the courts of administrative suspension
ORDER
On March 12, 2013 the Board of Overseers of the Bar (the Board) filed a disciplinary Information concerning apparent misconduct by suspended attorney Carol J. Webb (Webb). Following proper service, Webb was afforded the opportunity to Answer the Board?s filing. Following the status conference, the parties notified the Court that they had reached settlement on this matter.
Ms. Webb of Farmington, Maine was, until the imposition of an administrative suspension on October 22, 2012, an attorney duly admitted to and engaging in the practice of law in the State of Maine, subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Webb was admitted to the Maine Bar in 2001 and for the relevant time period, she maintained a solo practice in Farmington, Maine. Through the last few years of that solo practice, however, Webb encountered difficulties with client communications, managing her calendar and running the law office.
In March 2012 former client Alison Small filed a complaint with the Board alleging that Webb failed to appropriately communicate, charged excessive fees, missed important court dates and was neglectful in handling her family law case. Ms. Small also alleged that Webb failed to perform the services for which she was paid, and failed to timely provide her client file upon the respective requests of Ms. Small and her new attorney.
Subsequently, another client, Keith Brewer, filed both a fee arbitration petition and grievance complaint against Webb. Brewer?s filings detailed his concerns that Webb exceeded the scope of her authority, failed to timely communicate, failed to prepare for court proceedings and failed to adequately work on his 2011-2012 divorce matter.
To begin with, the Court appreciates Webb?s candid acknowledgement of her failings regarding Ms. Small?s legal matter. Webb admits that on January 19, 2012 she failed to appear for Small?s Parental Rights and Responsibilities hearing. While Webb received prior notice of that hearing, she failed to properly calendar it and notify Ms. Small. That calendaring mistake was later exacerbated by a January 13, 2012 flood in Webb?s building which closed her law office for a period of time.
After Ms. Small discharged Webb, Small requested that the client file be mailed to her successor counsel. While Webb apparently did mail that file to successor counsel, she later learned that he did not receive the file. Additionally, although Webb did not intend to impact Ms. Small?s ability to continue on with new counsel, she understands that the lack of a client file certainly hindered Ms. Small?s preparation with her new lawyer.
Webb also agrees to deficiencies in her communications with Mr. Brewer. She admits that she failed to adequately prepare for and monitor his divorce matter. Due to her own struggles running the law office, Webb found it difficult to keep Mr. Brewer regularly informed. Likewise, she failed to properly calendar important deadlines such that he was provided with adequate notice of impending court proceedings.
On February 1, 2013 Bar Counsel docketed a sua sponte complaint against Webb for her failure to comply with Maine Bar Rule 7.3(i)(2)(A)(B). That rule requires suspended attorneys to file affidavits with the Court (and the Board) attesting to the attorney?s compliance with client and court suspension notifications. Webb agrees that she failed to file the affidavits and acknowledges that such failure constituted professional misconduct.
Thereafter, on February 19, 2013 District Court Judge Valerie Stanfill filed a grievance complaint due to Webb?s failure to notify the District Courts of her October 2012 administrative suspension. Although she denied any harm to the involved client, Webb does not dispute that she failed to provide timely notification of her suspension to the courts. Indeed, Webb concedes that she did not properly attend to her registration and CLE filing requirements, resulting in her suspension and delayed notice to the courts.
Webb has reiterated to the Court her understanding that she is not permitted to practice law again until she becomes reinstated by the Court.
Based upon the above-outlined findings and the parties? agreement, the Court finds that Carol J. Webb?s actions in both client matters constituted violations of Maine Rules of Professional Conduct: 1.3 [diligence]; 1.4 [communication]; 1.5(a) excessive fee and 1.15(d); [termination of representation]. The Court further finds that Webb?s failure to file the affidavit of compliance constituted a violation of M. Bar R. 7.3(i)(2)(A)(B). Finally, Webb?s failure to properly and timely notify the District Courts of her October 2012 administrative suspension constituted a violation of M. Bar R. 7.3(i)(2)(v).
The Maine Bar Rules and Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Due to Carol Webb?s actions, Ms. Small suffered upset, distress and delays in pursuing her legal matter. Similarly, Mr. Brewer was negatively impacted by Webb?s lack of attention to his legal matter. Finally, the court system relies on Maine attorneys to keep it informed of any restrictions affecting the attorney?s ability to practice. If an attorney fails to keep a court apprised of any such limitation, then that failure negatively impacts the Judicial Branch?s handling of critical client needs. While the Court understands that Webb did not intend for these consequences, it is clear that her actions created obvious distress to the clients and confusion for the courts.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances. See M. Bar R. 7.1(e)(3)(C); See also ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
Carol Webb violated her professional duties by failing to properly monitor Ms. Small?s and Mr. Brewer?s legal matters. Additionally, Webb failed to timely provide notice of her suspension to the courts where she regularly practices. Her actions caused harm to the clients and created unnecessary confusion and concerns for the District Courts. The Court notes that Ms. Webb has no history of discipline and she has readily agreed that her conduct was upsetting and unfair to her former clients. Webb has expressed remorse for her professional failures.
Since the evidence of misconduct supports a finding and Webb agrees she did in fact violate the Maine Bar Rules and Maine Rules of Professional Conduct, the Court finds that its issuance of a Public Reprimand is an appropriate sanction.
Notably, until Carol Webb becomes reinstated to practice by the Court she shall remain suspended and unable to practice law in Maine.
Therefore, the Court accepts the agreement of the parties and concludes that the appropriate disposition of this matter is the issuance of a Public Reprimand to Carol J. Webb.
Joseph M. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Suzanne Dwyer-Jones
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Docket No.: BAR-11-20
Issued by: Maine Supreme Judicial Court
Date: May 23, 2013
Respondent: Suzanne Dwyer-Jones
Bar Number: 008638
Order: Suspension
Disposition/Conduct: Illegal conduct; Incapacitation affecting practice of Law - See Corrected Order issued July 19, 2013
DECISION and ORDER OF SUSPENSION
M. Bar R. 7.2(b)
A final hearing was conducted on March 25, 2013 on a petition for suspension commenced by the Board of Overseers of the Bar against Suzanne Dwyer-Jones pursuant to M. Bar R. 7.3(e)(2)(B). The Board was represented by Bar Counsel Aria Eee, Esq., and Ms. Dwyer-Jones, who was present for all proceedings, was represented by James P. Hall, Esq.
The Board?s petition alleges that Ms. Dwyer-Jones is unable to properly discharge her professional duties due to significant substance abuse and substantial mental health conditions. Ms. Dwyer-Jones?s answer admits some of the factual allegations of the petition, denies others, and generally rejects the notion that her professional conduct has been adversely affected by alcohol, drugs, or any psychiatric condition. After conferences of counsel and exchanges of materials between parties, the matter was scheduled for hearing on January 3, 2013, but continued upon the request of Ms. Dwyer-Jones and rescheduled to March 25, 2013.
Ms. Dwyer-Jones then sought a continuance of the March 25 hearing by motion filed March 21, 2013 alleging, inter alia, that (1) she was incarcerated, (2) that counsel had potentially conflicting commitments, and (3) she had been denied medications while incarcerated. After notice and opportunity to be heard, the Court determined that Ms. Dwyer-Jones was currently incarcerated because she had managed to enter into execution of a sentence (discussed infra) that had been stayed beyond the March 25 hearing date. After hearing arguments of counsel, the motion was denied. The Court reaffirmed its ruling on March 25 after a colloquy on the record with Ms. Dwyer-Jones.
Ms. Dwyer-Jones was admitted to the practice of law in the State of Maine in 1998. She is also admitted to practice in Massachusetts and maintains a law office in Lowell, Massachusetts. Her solo practice, which centers upon criminal defense work, involves representing clients in Maine and Massachusetts. She has not previously been involved in any disciplinary proceedings and has had no criminal charges lodged against her until December 30, 2010, when she caused a head-on collision in York, Maine, which resulted in a charge of Operating Under the Influence. Her defense to this charge centered on an assertion that the blood drawn at York Hospital on the night of the collision, which provided evidence of her blood-alcohol level, was not her blood. The District Attorney obtained an order requiring her to provide a blood or tissue sample so DNA testing could confirm or disprove her argument. She has not been compliant with the court?s order.
Ms. Dwyer-Jones came to the attention of the Board in 2011 as a result of her failure to renew her attorney registration and to complete continuing legal education credits. On October 11, 2011, she was administratively suspended by the Board from the practice of law pending her satisfaction of these requirements.
Notwithstanding the Board?s action, Ms. Dwyer-Jones continued to practice law after that date. She claims to have been unaware of the administrative suspension until December 2011; however, the Court finds these claims patently not credible. Ms. Dwyer-Jones knew, as early as September 2011, that her suspension was imminent. At a minimum, she had the duty to take reasonable steps to be aware of her current registration status.
Ms. Dwyer-Jones blames many of her post-2010 behaviors upon certain stressors that she claims lead her to drink alcohol after many years of abstinence. The death of her father in 2009 and the disintegration of her marriage were, in her view, the primary triggers that precipitated her decline.
She testified that she had been involved in a stress-filled marriage and, later, a contentious divorce which culminated in an agreed-upon judgment of divorce in May 2011. Apparently she continued to live in the marital home, which had been awarded to her former husband, for a period of time after the divorce until her former husband forced her out. Before and after the divorce, Ms. Dwyer-Jones made a number of calls to the police that ultimately resulted in the authorities directing her to leave the home.1 The police also responded to at least one call from Ms. Dwyer-Jones?s mother, who was concerned about her substance abuse and mental health issues. Ms. Dwyer-Jones appeared at the police station to complain about a perceived lack of assistance from the local authorities. She was argumentative and sat on the floor during the confrontation, and was ultimately asked to leave the building. In February 2012, the police responded to suicide threats by Ms. Dwyer-Jones as reported to them by her cousin.
On December 4, 2011, Patrol Sergeant Luke Earnenweine of the York Police Department responded to a call from the Microtel Motel about a motel guest who appeared to be intoxicated. Although this guest, later identified as Ms. Dwyer-Jones, drove away, she returned while Sergeant Earnenweine was present. As she walked around him, she appeared unsteady on her feet and her sweatshirt was unzipped, revealing her undergarments. Sergeant Earnenweine asked her to stop so he could speak to her, but she refused to respond to him. He followed her to the elevator and put his foot in the door so it would not close. He smelled alcohol. Ms. Dwyer-Jones said she would fight him if he tried to put her in handcuffs.
Another officer arrived shortly thereafter and Sergeant Earnenweine entered the elevator. Ms. Dwyer-Jones kicked at him and loudly and repeatedly screamed, ?Stop!? After Ms. Dwyer-Jones was removed from the elevator, Sergeant Earnenweine advised her that he had received reports that she had been offering to sell prescription drugs to hotel employees. She denied his accusation and continued yelling. He searched her purse and found a prescription bottle containing two types of pills, only one of which matched the label. He also searched her vehicle and found a prescription bottle for Xanax, but the Xanax tablets in the bottle were a different strength than that indicated on the label.
Ms. Dwyer-Jones was transported to the police station where she underwent a blood-alcohol breath test that produced a result of .16. She was combative and obstreperous for most of the time at the police station. She admitted, and later denied, driving earlier in the evening. She was charged with Operating Under the Influence, Unlawful Possession of Scheduled Drugs, and Refusing to Submit to Arrest.
Later, in January 2012, the same officer saw Ms. Dwyer-Jones driving near the courthouse at a time when he knew she was under suspension,2 and he stopped her vehicle. She was charged with Operating After Suspension, Possession of a Suspended Driver?s License, and Violation of Conditions of Bail.
Zachary Harmon is a patrol officer with the Kittery Police Department. On February 25, 2012, shortly after midnight, while driving his patrol vehicle on the U.S. Route 1 bypass, he observed a vehicle coming at him on an apparent collision course. He activated his lights, drove his cruiser onto the grass to avoid a collision, and turned his cruiser to pursue the vehicle, which was operated by Ms. Dwyer-Jones. During Harmon?s conversation with Ms. Dwyer-Jones, she advised him that she was a lawyer. Officer Harmon noted that her speech was very fast and slurred and she seemed to be flustered. The interior of the car was very cluttered. He smelled no odor of alcohol.
Officer Harmon administered field sobriety tests, including the horizontal gaze nystagmus test, which Ms. Dwyer-Jones failed badly. He reported that Ms. Dwyer-Jones talked incessantly during his entire period of interaction with her. She said she would kill herself if they took her to jail, so Officer Harmon elected to transport her to the hospital. She was charged with Operating Under the Influence
Justina McGettigan, an Assistant District Attorney who has known Ms. Dwyer-Jones for a number of years, became quite concerned over her behavior and the criminal charges she was incurring starting in September 2011. Numerous rambling and emotional messages from Ms. Dwyer-Jones were left on her voice mail. Ms. Dwyer-Jones failed to appear for court dates for her clients; in December 2011, Justice Fritzsche issued a bench warrant for one of her clients as a result of a non-appearance. In February 2012, ADA McGettigan filed a motion for revocation of preconviction bail on Ms. Dwyer-Jones?s own pending criminal charges.
In late February, after learning that Ms. Dwyer-Jones had been admitted to a hospital, ADA McGettigan was sufficiently concerned about Ms. Dwyer-Jones?s condition and safety, based upon her behavior and suicide references, to request a court-ordered psychological evaluation. Shortly thereafter, in March 2012, upon the court?s order, Ms. Dwyer-Jones entered the Riverview Psychiatric Center and a full psychological workup was completed.3
Shortly after being released from the Riverview Psychiatric Center, Ms. Dwyer-Jones hired an attorney4 and entered guilty pleas in late April 2012, to two OUI charges and a charge of Resisting Arrest.5 She was placed on probation with a number of special conditions relating to substance abuse. She claims that her probation supervisor, Dennis Clark, was oppressive and uncooperative. The court finds the opposite to be true. After a string of unsuccessful strategies, Officer Clark filed a motion to revoke probation on November 6, 2012. At the probation revocation hearing, after arriving two hours late, Ms. Dwyer-Jones admitted several of the allegations of the motion.6
As the dispositional hearing on the probation revocation drew near, Ms. Dwyer-Jones continued to be uncooperative. She failed to report and was otherwise uncommunicative with Officer Clark. Justice Fritzsche terminated her probation and ordered her to serve a county jail sentence, but allowed a stay of execution that would allow her to attend the March 25, 2013 hearing in this matter. Inexplicably, Ms. Dwyer-Jones arranged to enter into execution the sentence March 11, which resulted in her being incarcerated immediately prior to, and during, the hearing in this matter.
Attorney William Nugent of the Maine Assistance Program (MAP) met Ms. Dwyer-Jones in 2009 shortly after her father died.7 It appeared to him that she was struggling with the stress of that event and difficulties in her marriage. In February 2011 they met again and entered into a contract to address her substance abuse and emotional problems. He met with her once again in January 2013. At that meeting, they discussed the events that had transpired and considered the possibility of a monitoring program administered by MAP. Ms. Dwyer-Jones was amenable to such a program, but she had not fully filled out all the forms necessary for participation in the program as of the date of the hearing in this matter.
During Ms. Dwyer-Jones?s hospitalization at York Hospital and Riverview, she received a diagnosis of bipolar disorder. At the hearing, she acknowledged the fact that she is an alcoholic?she has known this for some time?and that she is now officially diagnosed with a serious, although treatable, psychiatric disorder.
Despite the fact that Ms. Dwyer-Jones is afflicted with a substantial proclivity for substance abuse and a very serious mental health condition, she was apparently able to compensate well during the decade that preceded her precipitous decline after 2010. It is abundantly clear that that she went seriously ?off the rails? (a term that was used on numerous occasions during the hearing) thereafter.
The court has little difficulty in concluding that the combined effects of these conditions clearly produced a substantial incapacity that adversely impacted Ms. Dwyer-Jones?s ability to practice law and resulted in a substantial threat of irreparable harm to the public. Indeed, during this time, she was essentially unable to manage her own affairs, let alone the complex matters involved in the representation of others. The court finds that the incapacitating symptoms of these conditions remain essentially as florid today as they were during the last two years. Accordingly, the court hereby orders that Suzanne Dwyer-Jones be suspended from the practice of law in the State of Maine.
The issues of the duration and conditions of the suspension are conjoined with Ms. Dyer-Jones?s insight into her medical conditions and the progress she has made to manage them.
Although Ms. Dwyer-Jones?s chronic alcoholism and bipolar disorder can, in all likelihood, be managed with proper medication, supervision, and treatment, and she professes to understand the nature and gravity of her conditions, her testimony displayed an unrealistic and oversimplified outlook on what needs to be done. Ms. Dwyer-Jones holds the view that upon being released from the Riverview Psychiatric Center, and being prescribed several psychotropic medications, she was stable and ready to return to the active practice of law. Her testimony, paraphrased to a degree, is basically: I do not feel that I am impaired by my mental health issues. I messed up by drinking. Just give me a chance and it won?t happen again.
Notably missing are an understanding of what needs to be done to address the enormous challenges facing her, and some history of accomplishments indicating that she is making progress, however slight, toward meeting these challenges. To the contrary, Ms. Dwyer-Jones is currently mired in the depression of having hit rock-bottom.8 She will need help and a plan to dig out. The court is acutely aware of Ms. Dwyer-Jones?s fragile mental state and the danger that anxiety and depression present for her.9 The decision to suspend her privilege to practice law in Maine is not taken lightly.
Accordingly, the court imposes a one-year suspension from the date of this order, with conditions as specified below. Ms. Dwyer-Jones may petition for reinstatement thereafter. Any petition for restatement must show insight into the serious problems that resulted in this suspension, her plan to address them, and a showing of substantial progress toward the goal of being able to undertake the affairs of others without being distracted or incapacitated by her underlying conditions.
Suzanne Dwyer-Jones is hereby suspended from the practice of law in the State of Maine pursuant to M. Bar R. 7.2(b) for a period of one (1) year from the date of this order. She may petition for reinstatement thereafter. During the period of suspension, she shall:
(1) undertake active treatment for the conditions noted above from licensed mental health professionals, including in-patient hospitalization if necessary;
(2) advise Bar Counsel of all of the names of her treating professionals and institutions, and execute releases to allow Bar Counsel to monitor her progress in treatment;
(3) attend no less than three (3) AA meetings per week and provide proof of attendance if requested by Bar Counsel;
(4) take all medications as prescribed;
(5) refrain from all consumption of alcohol and drugs, other than medications in the amounts prescribed by her mental health professionals;
(6) take steps to ensure that any of her clients with active cases in the State of Maine are immediately referred to other counsel for representation;
(7) seek employment, as within her abilities, but not provide legal advice or counsel to any other person;
(8) seek stable housing that is not dependent upon the benevolence of other persons;
(9) engage the services of the Maine Assistance Program to assist with her substance abuse recovery and management of her psychiatric condition;
(10) keep the Board updated on her progress on these requirements at regular intervals, not less than quarterly;
(11) make a good faith effort to reimburse MCLIS for her own court-appointed attorney?s services, and similarly reimburse the Board for investigation and prosecution of this matter;
(12) undergo a psychological evaluation at the direction of Bar Counsel if so requested and provide a release to allow Bar Counsel to obtain a report of such evaluation;
(13) otherwise comply with all laws of the State of Maine.10
The Board is granted leave to file an information directly with the court concerning any new complaints of professional misconduct received after the date of this order.
Hon. Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Footnotes
1In September 2011, Detective Sargent Thomas Cryan of the York Police Department responded to the marital residence in response to a call from Ms. Dwyer-Jones reporting that an assault had taken place. Upon arrival, he saw no evidence of assault and concluded that the issue was centered on financial disagreements. He directed Ms. Dwyer-Jones to leave the residence.
2Ms. Dwyer-Jones advised the officer that she had obtained a stay on the suspension of her driver?s license. In fact, she had not. Indeed, a request for stay was received by the Bureau of Motor Vehicles after she was stopped by the officer.
3During the course of the evaluation, which lasted from March 16 through April 16, Ms. Dwyer-Jones confirmed that she had multiple prior mental health hospitalizations.
4Ms. Dwyer-Jones had previously been represented by a court-appointed attorney, Clifford Strike, Esq., but hired attorney Mark Lawrence to handle the remainder of proceedings. The exact date when attorney Lawrence took over representation from attorney Strike is not clear.
5The third OUI remained unresolved as of the date of the hearing in this matter.
6Officer Clark tested her for alcohol consumption on December 14 and received the results on December 18. Ms. Dwyer-Jones tested positive for alcohol. She denies alcohol use during that period.
7Although confidential by statute, Ms. Dwyer-Jones waived her right to confidentiality by offering as evidence her interactions with MAP.
8It is difficult to imagine more dire circumstances: (1) she is essentially homeless with no residential location to call her own; (2) she is destitute, without cash reserves, property, or a revenue stream; (3) her driving privileges will be suspended for the foreseeable future; (4) she has substantial healthcare and treatment needs, but no insurance to underwrite them; and (5) she is unable to practice her profession while under suspension.
9More than one friend and colleague have expressed fears of Ms. Dwyer-Jones committing suicide.
10See M. Bar R. 7.3(j)(5)-(6) for further requirements and procedures for petitions for reinstatement.
Board of Overseers of the Bar v. Peter L. Thompson, Esq.
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Docket No.: GCF# 11-258
Issued by: Grievance Commission
Date: May 22, 2013
Respondent: Peter L. Thompson, Esq.
Bar Number: 008011
Order: Dismissal
Disposition/Conduct: No Misconduct
REPORT OF FINDINGS, DETERMINATION AND ACTION OF GRIEVANCE COMMISSION PANEL B
Panel B of the Grievance Commission conducted a disciplinary hearing on the Petition of the Board of Overseers of the Bar (the "Board") against Peter L. Thompson, Esq. ("Respondent" or "Attorney Thompson") pursuant to Maine Bar Rule 7.1(e) on April 26 and May I, 2013. The Board was represented by Aria Eee, Esquire, Assistant Bar Counsel, Respondent Attorney Peter L. Thompson, was present and represented by Peter J. De Troy, Esquire.
Prior to opening arguments by counsel, the parties confirmed that they had no objections to the composition of the Panel and advised the Court regarding the pleadings, exhibits and the witness list. The matter proceeded to hearing on the Board's Disciplinary Petition dated January 23, 2013 and the Response of Respondent dated February 5, 2013. The parties agreed that Board Exhibits 1 through 30 and Respondent's Exhibits 1 through 40 were admitted without objection. The Board advised that it intended to call two witnesses, being complainant Dr. Lowell Gerber and Danielle Duval, NP-C. Respondent's counsel advised that he intended to call three witnesses Respondent, Chad Hansen, Esq. and Ronald Schneider, Esq.
The Disciplinary Petition alleges that Respondent engaged in violation of the following Maine Rules of Professional Conduct: Rule 1.2, Scope of Representation, Rule 1.4(a)(2) Communication- consult with client about means to accomplish objectives and Rule 1.4(b) Communication- explain as necessary to permit informed decisions. Assistant Bar Counsel advised that any references or claims relating to other Rules mentioned in the Disciplinary Petition were withdrawn.
Dr. Lowell Gerber and Danielle Duval, NP-C ("Complainants") engaged Attorney Thompson in January of 2009 to represent them in connection with a termination of employment dispute. Complainants are both healthcare professionals who were employed by Down East Medical Center ("DECH") until their respective contracts of employment were terminated without cause on July 24, 2008. DECH contends that the termination of employment was due to financial difficulties experienced by the hospital and was fully within its rights under the Employment Contract; Complainants contend that the termination of employment was in fact retaliation for the communications made by Complainants to the public and regulatory boards regarding the quality of care at the hospital.
Complainants consulted with several attorneys prior to engaging Attorney Thompson in January of 2009. Suit was filed against DECH, Quorum Health Resources, LLC and three named individuals on August 5, 2009. The case was actively litigated with more than twenty depositions conducted prior to the date of voluntary mediation held on July 30, 2010 with Patrick Coughlan of Conflict Solutions. The complaints about the professional conduct of Attorney Thompson arise out of the actions taken at the mediation. Prior to the mediation, Complainants were consistently complimentary about the service provided by Attorney Thompson and an affiliated attorney Chad Hansen. Attorneys Thompson and Hansen presented a twenty-six page single spaced mediation statement that was praised by Dr. Gerber as "absolutely fantastic" in an e-mail dated July 29, 2010. According to the testimony of Attorney Thompson and Attorney Hansen, they discussed for approximately three hours with the Complainants the nature of voluntary mediation, the benefits that might be obtained from mediation including a sense of how a disinterested party might view the respective cases and the possibility of settlement. Attorney Thompson advised the Complainants that he felt the case had a settlement value in a stated range taking into account back wages, damages permitted by law and the risks of litigation. Attorney Thompson also stated that when he discussed the prospects for injunctive relief including re-employment at DECH, Dr. Gerber was clear that he did not wish to return to DECH.
According to all witnesses, the mediation took approximately ten hours. In response to the initial settlement demand by the Complainants, the Defendants offered zero. After much private conferencing with the parties, a settlement proposal in excess of the amount discussed between Complainants and counsel was presented to the Complainants. When the Complainants accepted that dollar figure, the Defendants promptly provided a Term Sheet to outline the terms of the settlement. Because one of the major concerns of Dr. Gerber was to have a letter of reference from DECH, the Complainants and Attorney Thompson required that a paragraph setting forth the language to be contained within a reference letter be included in the Term Sheet. All witnesses testified that the negotiation of the reference letter language in the Term Sheet that ultimately was inserted as Paragraph 4 was the subject of further private conferencing with the mediator over the period of one to one and a half hours. Complainants testified that they in fact agreed to the language as set forth in the revised Term Sheet and signed the Term Sheet at the conclusion of the mediation.
On the day following the mediation, Saturday, July 31, 2010, Dr. Gerber sent an e-mail to Attorney Hansen asserting that the Complainants '"were unduly pressured in a hostage situation? and that they had been "coerced to make such a big decision under such a high degree of emotional duress." Complainants met with Attorneys Thompson and Hansen on August 5, 2010 to discuss their concerns and proposed revisions. During August 2010, Attorney Thompson and Attorney Hansen were in regular communication with Complainants and counsel for DECH seeking revisions to the Term Sheet as requested by the Complainants. By e-mail dated August 26, 2010, Attorney Thompson recommended to Dr. Gerber that the Complainants engage another attorney regarding the enforceability of the Term Sheet. On the same date, Attorney Thompson informed counsel for DECH that the Complainants were not willing to agree that the Term Sheet accurately reflected a settlement agreement and further requested that Complainants have another week to have the agreement reviewed by a new attorney. The Complainants disputed the settlement terms outlined in the Term Sheet, engaged other counsel and moved to have the dispute submitted to arbitration. Because the Term Sheet provided that disputes about the settlement be submitted to Conflict Solutions, Mr. Coughlan then acted in the capacity as arbitrator and found the agreement to be enforceable.
The Complainants received the settlement funds and reimbursed Attorney Thompson his disbursements but required that the attorneys' fees be placed in escrow. Ultimately Attorney Thompson sued to recover his fees and Complainants counterclaimed against Peter L. Thompson and Associates, P.A. and filed a Third-Party Complaint against Attorney Thompson and Attorney Hansen for breach of contract, legal malpractice and disgorgement of any attorneys' fees that might be found due to Peter L. Thompson and Associates P.A.
The claims of the Complainants against Attorney Thompson arising out of the conduct of Attorney Thompson and Attorney Hansen at the mediation are (1) that Paragraph 4 of the Term Sheet that recites the reference letter language was not in accordance with their wishes, (2) that Complainants never agreed in the Term Sheet that they would refrain from applying for reemployment with DECH or with Co-Defendant Quorum and therefore any suggestion by Attorney Thompson that Complainants would agree to such bar of reemployment was beyond the scope of his authority and (3) that they did not understand that Paragraph 15 of the Settlement requiring that disputes concerning the terms of settlement be referred to Conflict Solutions for binding arbitration would bar presentation of their claims before a jury.
The presentations by Bar Counsel and counsel for Respondent were thorough and well supported by reference to exhibits and witness testimony. Resolution of the charges of misconduct ultimately rested upon the weight of the evidence, credibility, memory and motivation and the recognition that a mediated settlement seldom produces a result fully satisfactory to all parties.
Bar Counsel in charging an attorney with a violation of the Maine Rules of Professional Conduct has the burden of proof to establish by preponderance of the evidence that the Respondent engaged in misconduct. Bearing in mind the burden of proof, the Panel determined that the evidence does not support a conclusion that Attorney Thompson engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct.
Panel B hereby finds on the evidence and arguments presented that no misconduct subject to sanction under the Maine Rules of Professional Conduct has occurred and that the Petition dated January 23, 2013 against Attorney Peter L. Thompson is hereby DISMISSED.
John R. Bass, II, Esq., Chair
Kenneth L. Roberts
Maurice Libner, Esq., Panel B Member, dissenting:
I do not take issue with the facts found in the majority's decision. However, additional facts established at the hearing made a different impression upon me, and cause me to reach a different conclusion. Dr. Gerber is a 61 year-old cardiologist of many years' experience. Ms. Duval, a masters-level cardiac nurse practitioner, also had an accomplished professional resume. Complainants (who are unmarried domestic partners) moved to Washington County from Florida, to be closer to Ms. Duval's ailing mother who resided in Quebec. Down East Community Hospital hired them in the expectation of beginning a nonsurgical practice in cardiology to meet the needs of patients who otherwise would have to travel to Bangor or hospitals even farther away.
The tenure of Complainants' employment at DECH lasted only one year. After Dr. Gerber made a number of complaints to hospital administration about deficiencies in equipment, practice standards and even potentially fraudulent billing practices, they were unexpectedly and unceremoniously discharged by the hospital. After his termination, the Bangor Daily News published a story about the doctor's termination, which quoted hospital management and cast him in a very negative public light. Dr. Gerber subsequently was unable to find work in his specialty, though Ms. Duvall obtained employment with Maine Medical Center.
A lawsuit under Maine's Whistleblower Statute, for defamation and other tortious causes of action ensued. Following protracted discovery, Complainants, DECH and other defendants engaged in an intense, 10 hour mediation session on July 30, 2010. Claimants contend that they did not really understand the nature or purpose of mediation, which had been elected by their counsel as a fully voluntary avenue to attempt settlement before trial in federal court. Though their counsel spoke with them by phone at length in preparation for the meeting it appears from Dr. Gerber's email the night before that he nevertheless didn't comprehend the nature, intention or seriousness of the mediation venture.
During the mediation, Dr. Gerber and his counsel were frustrated, as the Defendants at first refused to make any settlement offer. Dr. Gerber testified that he continued participating in the mediation under duress and against his better judgment, on the assurance of Respondent that patience could produce a settlement agreement. He described a confrontational and hostile environment, in which the mediator, described as one of the most experienced and effective in Maine, harangued him, red in the face, to deflate his self-confidence and discourage him from proceeding to trial.
After over 8 hours of discussion, the parties agreed on a monetary settlement of Claimants' financial damages that was slightly more than the minimum goal established by Respondent before the mediation. (Though at first blush this amount appears substantial, the net ultimately received by Complainants only equaled about one year of lost earnings.) After agreeing on this financial settlement, Dr. Gerber insisted on getting an effective letter of reference to clear his reputation and allow him to resume work in his field. Ultimately, the parties signed a "Term Sheet", acknowledging that a letter of reference would be provided, along with provisions for arbitration before the same mediator, should the parties be unable to agree on a comprehensive final settlement document.
Critically, in the undersigned's view, Dr. Gerber explained that he only agreed to sign the Term Sheet on the assurance of Respondent that its defects could be remedied by further negotiation or arbitration. Although he tried diligently, Respondent was unable to expand or improve the language Dr. Gerber deemed unsatisfactory.
I agree with Bar Counsel that Respondent's described conduct of the mediation resulted in the abdication of one of his client's primary goals in retaining his professional services, that of clearing his professional reputation, and in so doing violated M. R.P.C. 1.4(a)(2) and 1.4(b). I am persuaded that Respondent lost focus on the aspect of the litigation most important to Dr. Gerber: not simply obtaining financial compensation, but restoring his ability to work in his chosen profession. The importance of this objective, if not lost on Respondent, was given short shrift in the final reckoning of the litigation.
One of the most trenchant proclamations that a damaged reputation is not easily salvaged by exchange of the coin of the realm was given by Shakespeare, through the mouth of Iago:
"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands:
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed." Othello (3.3.155-161)
Though we are conditioned as lawyers to believe that even the most intangible "human" damages can be monetized and reduced to a figure easily divisible by three, or in this case 40%, it is still incumbent on us to realize that there are occasions when some client goals exceed the importance of a financial settlement. I believe this case was such an instance. Having accepted Dr. Gerber's representation, Respondent was obligated to respect and advance his client's objective in the litigation, even where this may not have been expedient, even at the risk of possibly losing the case.
Maurice Libner, Esq.
Board of Overseers of the Bar v. Mark J. Nale, Esq.
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Docket No.: GCF# 11-153
Issued by: Grievance Commission
Date: May 30, 2013
Respondent: Mark J. Nale, Esq.
Bar Number: 002976
Order: Dismissal with Warning
Disposition/Conduct: Conflict of Interest, Informed Consent of a Client; Conflict of Interest, Concurrent Representation; Keeping Client Informed
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL B OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(E)(2)(4)
On May 30, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Mark J. Nale, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 19, 2013.
At the May 30, 2013 hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Nale appeared with his counsel, James M. Bowie, Esq. Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Additionally, the complainant, Mourad Jdaini, had been provided with a copy of the proposed stipulated sanction Report in advance of the stipulated hearing. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following findings and disposition:
Respondent Mark J. Nale of Waterville, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Nale is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Nale was admitted to the Maine Bar in 1984 and is currently registered as an active Maine attorney.
The legal dispute which engendered this complaint matter arises out of the death of the Complainant?s 6 year old son, Zyah Denis. At the time of Zyah?s death, the Complainant shared joint custody with his estranged wife, Casey Denis (now Casey Perkins); however, the child?s primary residence was with his mother. In June of 2007, Ms. Denis and Zyah came from their home in Arizona to Waterville, Maine to visit with family. It was during that visit that Zyah was left unattended and accidentally drowned in the swimming pool at the family?s rented home.
Attorney Nale was initially contacted by Sherry Levesque, Ms. Denis? mother, setting up an appointment for both Ms. Denis Ms. Levesque to meet with him regarding the death of Zyah. Following that initial meeting, on June 19, 2007 Ms. Levesque, Ms. Denis and Mr. Jdaini (who had come to Maine for Zyah?s funeral) met with Attorney Nale at his office, and Ms. Denis and Mr. Jdaini each signed the contingency fee agreement retaining Nale?s representation of them for the wrongful death of Zyah Denis. Attorney Nale advised them that he would commence the investigation into Zyah?s death, but that he would refer the case out to an experienced litigation counsel. Although the fee agreement was between Attorney Nale and Zyah?s parents, the file was set up by his office staff with Sherry Levesque and Casey Denis as the clients, and Mr. Jdaini?s name was omitted from the client contact list.
Mr. Jdaini left Maine, returning home to Arizona. Attorney Nale began an investigation, and at the same time referred the case to an experienced personal injury litigation counsel, for assessment and prosecution of the underlying wrongful death action. Attorney Nale gathered information from the Waterville City Officials and police regarding their response to the scene; assuring the preservation of evidence such as the 911 tape; and corresponding with the personal injury attorney regarding his involvement in the case. Attorney Nale sent several letters during the summer of 2007, routinely providing copies to Casey Denis and her mother Sherry Levesque to keep them apprised of his progress, but failing to send copies to his client, Mr. Jdaini.
On September 4, 2007, at the request of the personal injury attorney that he had referred the case to, Attorney Nale notified the insurance company for the homeowners that he was withdrawing from representation of Casey Denis and Sherry Levesque, ?individually and as personal representative of the Estate of Zyah Denis?. With that notice, Attorney Nale also provided the name of the personal injury attorney as the new counsel for his former clients. Due to his office?s initial error in setting up the file, Attorney Nale omitted to reference Mr. Jdaini in the letter, or to provide him with a copy of the letter.
Attorney Nale had no further involvement in the case until the summer of 2008, when he was again contacted by the personal injury attorney he had referred the case to. The personal injury attorney had arranged for another attorney to begin the process of filing formal probate proceedings for the Estate of Zyah Denis. The probate attorney had made the initial contact with both Ms. Denis and Mr. Jdaini, seeking their approval to have Casey Denis? cousin, Melissa Denis appointed as the Personal Representative. However, due to a conflict of interest, the other attorney had to withdraw, and the personal injury attorney asked that Attorney Nale take over the appointment of Melissa Denis as personal representative of Zyah?s estate.
In anticipation of her appointment, in September 2008 Melissa Denis signed a contingency fee agreement with the personal injury attorney in her capacity as Personal Representative for the estate of Zyah Denis. Attorney Nale had already sought and obtained a renunciation of her right to be appointed as Personal Representative from Casey Denis. Attorney Nale had also contacted Mr. Jdaini in Arizona, and Mr. Jdaini advised him that he would consult with independent counsel regarding his renunciation. Mr. Jdaini subsequently signed the renunciation document in October of 2008 and returned it to Attorney Nale. Melissa Denis was formally appointed as the Personal Representative of Zyah Denis? estate shortly thereafter.
In March of 2009, the personal injury attorney filed a wrongful death suit on behalf of the estate of Zyah Denis against the renters of the property, as well as the property?s owners. Third party complaints were brought by both defendants against Casey Denis. The case went to mediation in August of 2009 and a settlement was reached with the insurance carriers for the two principal defendants. After learning the terms of the settlement from his former wife, Mr. Jdaini obtained counsel in Arizona, and eventually in Maine, filing a motion to stay the dismissal of the lawsuit, and seeking intervener status.
The wrongful death settlement reached by the personal injury attorney was ultimately agreed to by Mr. Jdaini and the suit was dismissed. Mr. Jdaini, through counsel, in due course negotiated a settlement with Ms. Denis for the allocation and disbursement of the proceeds from the wrongful death action.
Mourad Jdaini filed his bar complaint against Attorney Nale in May of 2011. Within that filing Jdaini complained that in undertaking the initial concurrent representation of Jdaini and his estranged wife, Attorney Nale failed to adequately consider the potential conflict of interest engendered by such representation; to adequately disclose and discuss it with the parties; or to obtain their informed consent to the representation. Mr. Jdaini also complained that Attorney Nale failed to keep him adequately apprised of the status of the case and its referral to successor counsel, or to otherwise communicate with him during the course of the 2007 representation. Attorney Nale contends he did communicate with Mr. Jdaini about the referral, but concedes that Mr. Jadaini was inadvertently not copied on correspondence during the summer of 2007.
Attorney Nale?s actions constituted violations of the then applicable Maine Bar Rules (M. Bar R.) 3.4(b); 3.4(c) and 3.6(a). Attorney Nale acknowledges that in undertaking the simultaneous representation of Mr. Jdaini and his estranged wife that he failed to adequately obtain, and/or document the informed consent of each client. Accordingly, Attorney Nale agrees that his conduct constituted violations of M. Bar R. 3.4(b) and 3.4(c). Attorney Nale also agrees that during the period of his representation during the summer of 2007, that he failed to communicate with his client, or otherwise keep Mr. Jdaini informed of the status of the case in violation of M. Bar R. 3.6(a).
The Maine Bar Rules specifically require attorneys to uphold their duties to clients and the courts. Due to Attorney Nale?s 2007 conduct, he negligently engaged in conduct that was prejudicial to his clients and detrimental to the administration of justice. Attorney Nale?s misconduct was in direct violation of the then Code of Professional Responsibility.
At the stipulated hearing, Attorney Nale made clear his remorse for his actions related to the matter. He extended apologies to those people who were affected by his behavior and in attendance at this disciplinary hearing.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances.
The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(B). Attorney Nale violated his duties as an officer of the court by negligently undertaking concurrent representation of clients, without adequately considering the potential for their conflicting interests, or discussing and obtaining the clients? informed consent to representation. (ABA Standards, 4.34). Attorney Nale also inadvertently failed to communicate with one of his clients, to keep him informed of the progress of his case, or even to advise him that the case had been successfully referred to new counsel, and that he was withdrawing from further representation. (ABA Standards, 4.44) In mitigation, the Panel notes that Attorney Nale?s failures to communicate with his client were unintentional due to his initial error in the setting up of the client file. Further mitigation exists because that the Board?s regulation history reflects that Attorney Nale has no prior disciplinary record.
In sum, the evidence of misconduct supports the Panel?s findings, and Attorney Nale agrees he did in fact violate the Maine Bar Rules. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Nale. Accordingly, the Panel concludes that a dismissal with a warning is a proper sanction to impose upon Attorney Nale.
Therefore, the Panel accepts the agreement of the parties including Attorney Nale?s separately executed waiver of the right to object to the warning or its terms. The Panel concludes that the appropriate disposition of this case is the issuance of a Dismissal with a Warning to Mark J. Nale, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(B), (4).
Maurice A. Libner, Esq., Chair
Justin D. LeBlanc, Esq.
Kenneth L. Roberts
Board of Overseers of the Bar v. Jeremey A Miller, Esq.
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Docket No.: GCF# 11-130
Issued by: Grievance Commission
Date: May 28, 2013
Respondent: Jeremey A Miller, Esq.
Bar Number: 004398
Order: Findings
Disposition/Conduct: Rejection of Stipulated Sanction
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION
Pursuant to a Disciplinary Petition filed on February 4, 2013, a stipulated disciplinary hearing open to the public was held on May 28, 2013 at 9:00a.m., at the Cumberland County Superior Court in Portland, Maine, with proper notice provided to all parties. The members of Grievance Panel E were present. Attorney Miller was represented by Attorney Phillip Johnson and the Board was represented by Assistant Bar Counsel Aria Eee. Complainant Stev Parker, Esq. was in attendance at the hearing along with Eric Wright, Esq., from the Bureau of Consumer Credit Protection. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Attorney Parker and Attorney Wright provided comments and addressed the Panel concerning the parties' proposed Report.
Taking all of the proffered evidence and comments presented at the hearing in the light most favorable to the stipulated proposed disposition, the Panel is unable to conclude that a Dismissal with a Warning is the appropriate disposition of this matter. Accordingly, pursuant to Maine Bar Rule 7.1(d)(5), the office of Bar Counsel will prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 7.1(e). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Victoria Powers, Esq., Chair For GCF Panel E
Board of Overseers of the Bar v. George P. Kesaris, Esq.
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Docket No.: BAR-12-8
Issued by: Maine Supreme Judicial Court
Date: June 7, 2013
Respondent: George P. Kesaris, Esq.
Bar Number: 002579
Order: Findings, Conclusions and Order
Disposition/Conduct: N/A
Order to Disburse Client Trust Funds M. Bar R. 7.3(f)
Upon petition of Nathaniel R. Fenton, Esq. for an order authorizing disbursement of certain funds held in the client trust accounts of George P. Kesaris, a deceased attorney and after review by this Court on June 7, 2013, the Court makes the following findings and conclusions:
Based upon the foregoing findings of fact, the Court makes the following:
THEREFORE, pursuant to Maine Bar Rule 7.3(f), it is ORDERED as follows:
The Receiver of the law practice of George P. Kesaris is hereby authorized to disburse funds from the trust account of George P. Kesaris formerly held at Camden National Bank in the amount of $3.74 to Office of Bar Counsel to be held until properly claimed by George P. Kesaris's client(s)
Donald Alexander
Justice, Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott A. Wanner, Esq.
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Docket No.: GCF# 11-095
Issued by: Grievance Commission
Date: June 14, 2013
Respondent: Scott A. Wanner, Esq.
Bar Number: 009264
Order: Reprimand
Disposition/Conduct: Conflict of Interest; Personal Conflict
REPORT OF FINDINGS PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(E); M. BarR. 7.1(e)(4)
On April 30 and May 10, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.l(e)(2)(E), concerning alleged misconduct by the Respondent, Scott A. Wanner, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 26, 2012.
At the hearing, the Board was represented by Assistant Bar Counsel, Aria Eee and the Respondent appeared pro se. After due consideration of the testimony of the witnesses and the evidence presented, the Panel makes the following disposition:
Respondent Scott A. Wanner, Esq. of Portsmouth, New Hampshire, has been at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Wanner was admitted to the Maine Bar in May 14, 2002. He was suspended administratively on October 22, 2012 due to a failure to complete his annual registration requirements.
On March 18, 2011, Robert M.A. Nadeau submitted a complaint against Attorney Wanner to the Board of Overseers. In due course, the Board of Overseers, through counsel, filed a formal disciplinary petition dated November 26, 2012 alleging that Attorney Wanner engaged in misconduct in violation of a number of Bar Rules. In her opening and again at closing, Assistant Bar Counsel abandoned all counts except those involving Maine Bar Rule 3.4(a) through (f).
Maine Bar Rule 3.4(a)(1) requires a lawyer to disclose to a prospective client any relationship or interest of the lawyer that might reasonably give rise to a conflict of interest and impose a continuing duty to disclose to the client any information that might give rise to such a conflict of interest after commencement of representation. Maine Bar Rule 3.4(b)(1) prohibits a lawyer from commencing representation or continuing to represent a client if that representation would involve a conflict of interest. A "conflict of interest" during representation would arise if "there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duty to another current client, to a former client, or to a third person, or by the lawyer's own interest." Maine Bar Rule 3.4(b)(1).
Maine Bar Rule 3.4(f)(1) prohibits a lawyer from commencing representation "if there is a substantial risk that a significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of [a] client."
The panel admitted Board exhibits 1 through 61 and Respondent's exhibits 1 through 17, 19 through 21, 23 through 27, 29, 30, 32 through 42, and 45 through 47 into evidence without objection. Respondent's exhibits 18, 22, 28, 31, 43 and 44 were objected to by Assistant Bar Counsel, but thereafter reference to them was made repeatedly by both sides and they are deemed to have been admitted. Attorney Wanner was called as a witness by Assistant Bar Counsel and further testified on his own behalf. Attorney Robert M. A. Nadeau and Attorney Ian Brown, an associate in Attorney Nadeau's office in 2007, also testified.
The Panel's findings and conclusions are derived solely from the documentary evidence and the testimony of Attorneys Wanner and Brown. It does not rely on Attorney Nadeau's testimony, which was exaggerated, inconsistent and unreliable.
Attorney Wanner was hired as an associate in January 2007 by Nadeau & Associates. Approximately one month later, Attorney Wanner had a sexual encounter with a woman, LF,1 who was Attorney Nadeau's on-again-off-again fianc? and who was also an on-again-off-again employee of the firm. Attorney Wanner was aware of Attorney Nadeau's lengthy and public relationship with LF. He described the February 2007 sexual encounter as a one-time indiscretion that took place when he believed that the relationship between her and Attorney Nadeau had ended. Attorney Wanner left the firm in October 2007 without ever disclosing his sexual encounter with LF to Attorney Nadeau.
The Panel finds that the Respondent established an attorney-client relationship with Nadeau when he was asked to gather evidence in connection with Attorney Nadeau's defense of a protection from abuse complaint filed against him by LF. Attorney Wanner also assisted as a witness at the PFA hearing, although the case was settled after only brief testimony from him. Both the arc of events and Attorney Wanner's 2007 case status reports, admitted into evidence without objection, show that Attorney Wanner accounted for the time spent on behalf of Attorney Nadeau whom he described as his client.
This is the type of situation that Maine Bar Rules 3.4(a)(1), 3.4(b)(1) and 3.4(f)(1) were designed to avoid. Despite his brief tenure at Nadeau & Associates, Attorney Wanner should have known that his involvement with LF was a "significant personal relationship" that could have compromised his client's defense in the protection from abuse matter. Our analysis under Maine Bar Rule 3.4 is not result-oriented. It does not require a finding that the Respondent's work was deficient. The Rule requires an attorney to determine whether he or she should accept representation in the first place on behalf of a client and thereafter to reevaluate continuously whether a conflict of interest has emerged or evolved to the point where disclosure and withdrawal are required.
The panel finds that Attorney Wanner had an obligation to disclose to Attorney Nadeau that he had a personal relationship with LF which might give rise to a conflict of interest; or, in the alternative, Attorney Wanner should have refused to become involved in the case if he chose not to disclose this information to Nadeau. His failure to do either violated Maine Bar Rule 3.4(a)(1), 3.4(b)(1) and 3.4(f)(1).
Maine Bar Rules 3.4(a)(1), 3.4(b)(1), and 3.4(f)(1) require that the client be informed of any and all conflicts, whenever they arise. Attorney Nadeau was the client. The impact on Attorney Nadeau's interests is irrelevant to Attorney Wanner's obligation to disclose his relationship with LF, so that his client could make his own decisions about the Respondent's representation. The Code of Professional Responsibility specifically requires attorneys to uphold their responsibilities to clients and the courts. The duty is on the lawyer to exercise punctilious care when complying with rules regarding disclosure. An attorney may explain to the client why he or she believes that no conflict exists. Without disclosure, the client has no opportunity to consider and decide for him or herself. The Panel does not believe that Attorney Wanner acted with malice, but in attempting to prevent personal embarrassment or awkwardness, he deprived his client of information he was duty-bound to reveal.
Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. It is troubling that Attorney Wanner appears not to appreciate the conflicts presented. He was not contrite. Since the evidence supports a finding that the Respondent violated Maine Bar Rule 3.4 as set forth above, the Panel finds that a Public Reprimand is the appropriate sanction, which is hereby imposed on Attorney Scott A. Wanner.
David S. Abramson, Esq., Chair
Peter C. Fessenden, Esq.
Richard P. Dana, C.P.A.
1Initials of this individual are used to protect privacy.
Board of Overseers of the Bar v. George P. Kesaris, Esq.
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Docket No.: BAR-12-8
Issued by: Maine Supreme Judicial Court
Date: June 17, 2013
Respondent: George P. Kesaris, Esq.
Bar Number: 002579
Order: Order and Decision
Disposition/Conduct: Order Discharge of Receiver
ORDER DISCHARGE OF RECEIVER
THIS MATTER having been presented upon the motion of the Receiver, appointed pursuant to M. Bar R. 7.3(f), for an order discharging him as Receiver of the law practice of George P. Kesaris, the Court makes the following findings of facts and conclusions of law:
Based upon the foregoing FINDNGS OF FACT, the Court makes the following conclusions of law:
THEREFORE, it is hereby ORDERED as follows:
FOR THE COURT,
Donald G. Alexander
Associate Justice
Exhibit 1
May 28, 2073
Margaret T. Jeffery, Esq
59 Cottage Street
Bar Harbor, ME 04609
Re: Estate of George P. Kesaris
Dear Margaret:
On behalf of the Maine legal community and myself I want to thank you for agreeing to tend the remaining client files of George P. Kesaris, Esq. You are performing an important service for both George P. Kesaris and his clients.
In this letter I hope to share with you a little bit about the profound importance of the files you will be holding and explain to you how you can best manage to keep, distribute and ultimately dispose of the files in the future.
What are these files? These are some of the files created by George during the time he was practicing law. Each time a new matter involving a new or existing client emerged, George created a file to hold all the documents relating to the matter. This is a standard practice for attorneys. We like to keep everything. In time, most matters conclude and the file becomes what attorneys refer to as ?closed?. While a matter may appear to be resolved, unexpected events will occasionally cause a party to the matter to re-open the matter. In instances where a matter is re-opened, it is critical for an attorney to have all the documents relating to the original matter at his or her fingertips. Because one never knows which files might re-open and which ones will remain truly closed, an attorney will usually keep a file for a long time after everything appears resolved.
George did exactly that. Over the course of the last few weeks I, or my assistant, Tobias Fenton, Esq., had the opportunity to examine a total of approximately 1,000 plus files kept by George. As we examined the files we were able to determine which files were open and which were closed. Once each file's status was determined, we endeavored to contact the client associated with each file by publication in the local newspapers and ask them to come and retrieve their file. This was an important process because, with some exceptions, a client is entitled to possess the contents of his or her files. Unfortunately, not everyone came to retrieve his or her file. It's possible that some former clients moved and didn?t see the advertisement and maybe some clients determined that they just didn't want to bother picking the file up. Whatever the reason, a large number of files remain unclaimed.
What should happen to these files? In cases like this one, the legal community looks to the family and close associates of the attorney whose law practice is closing and asks them to assist us in holding these files until the final- disposition of the files can be determined. Because you knew George through your practice of law in the same building, I asked you and you generously accepted. While the responsibility for protecting these files is heavy, the actual burden to you should be light.
Your first responsibility will be to provide the appropriate file to any client with a legitimate claim to its possession. Over the course of the next few years it is likely that some former clients of George will seek out their file and come to you to retrieve it. It is critical that these clients have every conceivable opportunity to retrieve their files and it is your generous service that will provide them that opportunity. There are many ways that these former clients may learn of your possession of George?s unclaimed files including the final order of the Court, the Board of Overseers of the Bar, old newspaper advertisements or even from other attorneys in the community. However they find you, rest assured, they will come.
Once a former client has contacted you and asked to retrieve their file, you should schedule a time for them to come and retrieve it. Make sure to give yourself enough time to locate the file and prepare the appropriate paperwork. In the binder of materials I will provide to you, I will include a number of blank Client File Release Forms and it is this form that each claimant must complete and sign before you provide them their file. Once completed, the Client File Release Form should be filed with the other completed release forms contained in the front of the binder.
As far as you should be concerned, everything in the client file belongs to the client and should be returned in its entirety. I have arranged the files, for the most part, in alphabetical order.
Unfortunately, not everyone will appear to claim their file and archiving these unclaimed files is a vital responsibility of the caretaker. It would be nice if we could just shred and dispose of the unclaimed files but we can?t. Some of these files contain documents that attorneys refer to as having "intrinsic value". These sorts of documents might be Wills or real property title paperwork, the kinds of documents that cannot be replaced and are critical to the clients who entrusted them to George. To destroy these documents could have profound implications for the families of a deceased loved one or clients trying to transfer property. Regardless of whatever rules might apply to the eventual destruction of less critical client files, files containing intrinsically valuable documents should be kept safe until they are needed.
Even client files without intrinsically valuable documents are still important. Because matters can be re-opened, it is important a file be available to a client if he or she should the future.
What should be done with these files? It is portions of the Maine Code of Professional Responsibility that guide the legal community in circumstances like this one. In Maine, the Code is interpreted by various legal entities, among them the Professional Ethics Commission. This Commission is appointed by the Maine Supreme Judicial Court to interpret the Code of Professional Responsibility and to issue advisory opinions concerning the Code. Some of the Opinions published by the Commission bear directly on the issue of George's unclaimed client files and I have included them here as Ethics Opinions #74 and #143.
One of the tensions these opinions address is difficulty of balancing the unknowable need for a file by a client and the futility of trying to keep everything forever. An Amendment to the Code adopted after these Opinions permits some files to be destroyed eight years or more after the matter they pertain to appears to be resolved. Which files can be destroyed is a highly technical issue and should only be decided by an attorney who has had the opportunity to examine the file.
You will need to hold these documents for a minimum of eight years before even considering the confidential destruction of files that are eligible. While some of the client files may exceed the eight-year minimum, it is imperative that you wait the full eight years before considering destruction. Waiting eight years for all the eligible files will simplify the procedure for you and provide clients the greatest possible period of time in which to claim their files.
You will recall that we discussed an alternate caretaker. Given the confidential nature of these documents, it is essential that we plan now for unforeseen circumstances. If you have a Will or other estate planning documents you should include amongst them this letter or one written by you, so that your family and caretakers will know to act and who to contact.
I realize that having to preserve these files may seem like an overwhelming task. It is not a thankless one. Your service is of great importance to George and the Maine legal community. Thank you. I hope this letter is helpful to you now and in the future. If you have any questions, please free to contact me at any time.
Sincerely yours,
Nathaniel R. Fenton, Esq.
Receiver, Law Practice of George P. Kesaris, Esq.
Board of Overseers of the Bar v. Alexander J. Karr
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Docket No.: GCF# 12-044
Issued by: Grievance Commission
Date: June 25, 2013
Respondent: Alexander J. Karr
Bar Number: 003245
Order: Dismissal with Warning
Disposition/Conduct: Failure to Respond to Bar Counsel; Failure to comply with the Maine Bar Rules
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(3)(4)
On June 25, 2013, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Alexander J. Karr. This disciplinary proceeding had been commenced by the filing of a Petition pursuant to M. Bar R. 7.1(e) by the Board of Overseers of the Bar on March 11, 2013. On March 28, 2013 Karr filed his answer to that Petition and admitted the misconduct alleged by the Board.
By agreement of the parties and approval by the Panel, Karr attended the hearing by a speaker telephone that was audible for everyone in attendance at the hearing. The Board was represented by Bar Counsel J. Scott Davis and Karr so appeared pro se. Prior to the disciplinary proceeding, the parties had filed and submitted to the Board Clerk a stipulated, proposed Report for the Panel?s review and consideration.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Alexander Karr was, until the imposition of an administrative suspension by the Board on October 18, 2011, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. He was admitted to the Maine Bar in 1985.
On October 18, 2011 Karr was administratively suspended by the Board due to his failure to file his annual registration statement, pay the annual fee and complete the proper credit hours of continuing legal education as required by Maine Bar Rules 6(a)(1), 10(a) and 12(a)(1), respectively. He also did not thereafter file the required affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as is required to occur within 30 days after that suspension date.
By a certified letter of December 15, 2011, Bar Counsel notified Karr of the consequence of his failure to file that required affidavit. On or about December 20, 2011 Karr, or his agent, accepted and received that certified mailing from Bar Counsel concerning Karr?s failure to comply with Maine Bar Rule 7.3(i)(2). Karr failed to meet Bar Counsel?s response filing deadline date of January 2, 2012.
As a result, on January 25, 2012, Bar Counsel initiated and docketed a sua sponte grievance complaint against Karr based upon his failure to comply with that affidavit requirement. Karr then failed to respond to Bar Counsel?s two requests for information in the investigation of this grievance matter, in violation of M. R. Prof. Conduct 8.1(b).
On August 28, 2012 a panel of the Grievance Commission reviewed Karr?s actions and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
In his answer of March 28, 2013 to the Board?s petition, Karr for the first time provided substantive information relating to the basis for his administrative suspension from practice in Maine and resulting failure to timely submit the required affidavit.
On December 31, 2010 Karr retired from his employment with the Department of Defense Contracting Agency in East Hartford, Connecticut. His intent was to fully retire everywhere from the practice of law, but admits that he failed to then so notify the Board and properly comply with the necessary requirements of the Maine Bar Rules to avoid an administrative suspension from practice in Maine. In late September 2011, Karr was diagnosed with prostate cancer for which he underwent surgery in late December 2011. The emotional and psychological trauma of that diagnosis and resulting serious surgery caused Karr to ignore his law license status in Maine, for which he now has accepted responsibility and apologized to the Panel.
With his answer to the Petition, Karr then also attached and filed his notification Affidavit dated March 29, 2013, a copy of which was provided to the Panel by Bar Counsel at the hearing. As a result, Karr has now complied with the requirements of Maine Bar Rule 7.3(i)(2)(A)(B). That affidavit confirms that Karr had no Maine clients to notify of his administrative suspension in 2011, but he agrees and understands the Maine Bar Rules still required him to file an affidavit with the Board so confirming that he had no Maine clients at the time he was suspended. The Panel notes that although Karr?s affidavit indicates his intention to ?comply with registration requirements and payment of fees as required or requested (in Maine),? he has confirmed to Bar Counsel and the Panel that he has no intention to petition for reinstatement in Maine. He remains currently administratively suspended in Maine.
Karr agrees that he violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). He regrets those errors and has corrected them by belatedly filing his Affidavit of March 29, 2013.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to clients and the courts. Karr violated his duties to the legal system by failing to complete the annual registration requirements in 2011 and by then failing to file the required notification affidavit once he was administratively suspended. Such misconduct caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There are no aggravating circumstances. There are, however, several mitigating circumstances. This is the only instance of misconduct by Karr since being admitted to the Maine Bar in 1985. It is not the result of dishonest or selfish motives and occurred during a time of personal emotional difficulty relating to the diagnosis of his prostate cancer and resulting surgery. There was no injury to any Maine clients as a result of his misconduct, and Karr has taken responsibility for his transgressions. At the disciplinary hearing, he expressed remorse for his violations of the Code of Professional Responsibility and the Maine Rules of Professional Conduct, and apologized to Bar Counsel and the Grievance Commission Panel.
Because the misconduct was minor, there was no harm to any clients, little harm to the profession and the misconduct appears very unlikely to be repeated by Karr, the Panel accepts the agreement of the parties, including Karr?s separately executed waiver of the right to file a Petition for Review. As a result, the Panel concludes that the appropriate disposition of this case is a public Dismissal With a Warning to Alexander J. Karr which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(B),(4).
Victoria Powers, Esq., Chair
John C. Hunt, Esq.
Marge M. Medd
Board of Overseers of the Bar v. Nicholas A. Battista, Esq.
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Docket No.: GCF# 12-036
Issued by: Grievance Commission
Date: June 20, 2013
Respondent: Nicholas A. Battista, Esq.
Bar Number: 004382
Order: Reprimand
Disposition/Conduct: Failure to Respond to Bar Counsel and Failure to Comply with the Maine Bar
REPORT OF FINDINGS AND ORDER OF PANEL B OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(3)(4)
On June 20, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning admitted misconduct by the Respondent, Nicholas A. Battista. This disciplinary proceeding had been commenced by the filing of a Petition pursuant to M. Bar R. 7.1(e) by the Board of Overseers of the Bar on March 11, 2013. On March 13, 2013 Battista was personally served with a copy of that Petition and directed to file his Answer to that Petition within 20 days. Battista failed to submit any answer. As a result, pursuant to M. Bar R. 7.1(e)(1) the facts set forth and the misconduct alleged in the Petition have been admitted by Battista.
At that disciplinary proceeding, the Board was represented by Bar Counsel J. Scott Davis and Battista appeared pro se.
Nicholas Battista was, until the imposition of an administrative suspension by the Board on October 18, 2011, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. He was admitted to the Maine Bar in 2008.
On October 18, 2011 Battista was administratively suspended by the Board due to his failure to complete the proper credit hours of continuing legal education as required by Maine Bar Rule 12(a)(1). He also did not thereafter file the required ?notification affidavit? properly certifying his compliance with Maine Bar Rule 7.3(i)(2) as is required to occur within 30 days after that suspension date.
By a certified letter of December 15, 2011, Bar Counsel notified Battista of the consequence of his failure to file that required affidavit. On or about December 19, 2011 Battista, or his agent, received and accepted by signature that certified mailing from Bar Counsel concerning his failure to comply with Maine Bar Rule 7.3(i)(2). Battista then failed to meet Bar Counsel?s response filing deadline date of January 2, 2012 concerning that omitted affidavit.
As a result, on or about January 30, 2012, Bar Counsel initiated and docketed a sua sponte grievance complaint against Battista based upon his failure to comply with that affidavit requirement. Thereafter, Battista failed to respond to Bar Counsel?s two written requests for information dated January 30 and May 22, 2012 in the Board?s investigation of this grievance matter, in violation of M. R. Prof. Conduct 8.1(b).
On August 28, 2012 a panel of the Grievance Commission reviewed Battista?s actions and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules for which it then directed that a disciplinary Petition be filed against him.
Battista remains currently administratively suspended in Maine and has filed this date the required affidavit.
Based upon Battista?s failure to file any answer to the Petition, by that default he is found to have violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d).
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to clients and the courts. Battista violated his duties to the legal system by failing to complete the annual continuing legal education (CLE) filing requirements in 2011 and by then failing to file the required notification affidavit once he was administratively suspended. He further aggravated matters by totaling ignoring Bar Counsel?s initial inquiries and requests for an explanation and then failing to file any formal answer to the Petition. Such misconduct caused injury to the legal system and to the profession. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration and CLE monitoring of lawyers facilitates the protection of the public and courts.
Battista?s continuous disregard of the Board?s duties, Bar Counsel?s inquiries and the requirements of the Maine Bar Rules serve as aggravating circumstances. The Panel agrees with Bar Counsel?s argument at the hearing and so finds that Battista?s failure to respond to Bar Counsel is serious misconduct. The disciplinary process of the Maine Bar Rules is predicated on the requirement that respondent attorneys reply and provide necessary requested information to allow Bar Counsel?s thorough investigation of grievance complaint filings.
The primary mitigating circumstance in this matter is that at the June 20th hearing Battista finally admitted his misconduct and expressed remorse for his numerous respective violations of the Maine Bar Rules and the Maine Rules of Professional Conduct. The Panel was informed by Bar Counsel that this is the only instance of misconduct by Battista since being admitted to the Maine Bar in 2008.
Because Battista?s misconduct is serious the Panel accepts Bar Counsel?s recommendation, as agreed to at the hearing by Battista?s execution of a Waiver of Petition for Review of this disposition. As a result, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Nicholas A. Battista which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(c).
John R. Bass, II Esq., Chair
Martica S. Douglas, Esq.
Kenneth L. Roberts
Board of Overseers of the Bar v. Dori F. Chadbourne, Esq.
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Docket No.: GCF# 12-395
Issued by: Grievance Commission
Date: June 27, 2013
Respondent: Dori F. Chadbourne, Esq.
Bar Number: 009141
Order: Reprimand
Disposition/Conduct: Communication; Return of Client property/funds; Failure to respond to Bar Counsel
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(4); M. BarR. 7.1(e)(4)
On June 11, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e) (2) (E), concerning misconduct by the Respondent, Dori F. Chadbourne, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 28, 2013.
At the hearing, Attorney Chadbourne appeared pro se and the Board was represented by Assistant Bar Counsel Aria Eee. Complainant Donna Canfield also attended the hearing. Although the matter was originally scheduled for trial, the Board and Attorney Chadbourne informed the Panel that they had reached agreement on the contested issues. To that end, the parties outlined their agreement on the record and subsequently filed a proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Dori F. Chadbourne, Esq., of Portland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Chadbourne was admitted to the Maine Bar in May 2001 and she maintains a solo practice in Portland. Her practice largely focuses on family law with a lesser concentration in business litigation, other forms of civil litigation and appellate work.
The pending complaint matter arose out of Attorney Chadbourne?s representation of former client Donna Canfield. Ms. Canfield hired Attorney Chadbourne in or around June 2012 and within that time frame paid Attorney Chadbourne an advanced fee related to a divorce action.
Initially, the attorney client relationship was good. Attorney Chadbourne?s communication with Ms. Canfield was adequate and informative. A few months later, however, Attorney Chadbourne fell ill and was out of the office for significant periods of time. Ms. Canfield began having difficulties reaching Attorney Chadbourne or receiving timely responses to her inquiries, which Attorney Chadbourne has disclosed to the Board also occurred with some other clients. While she did not intend to abdicate some of her client communications, Attorney Chadbourne acknowledges that her failure to properly respond to Ms. Canfield constituted a violation of M. R. of Prof. Conduct 1.4(a)(3)(4).
Due to Attorney Chadbourne?s unavailability to Ms. Canfield, she was terminated from the representation. Within Ms. Canfield?s September 26, 2012 letter of discharge, she requested an accounting for the advanced fee she had paid and a return of the remaining funds. By her letter of September 28, Attorney Chadbourne promptly responded to Ms. Canfield?s letter and assured her that an accounting and refund would be provided forthwith. She also committed to immediately releasing the client file to successor counsel.
Unfortunately, Attorney Chadbourne did not address those subsequent steps in a manner most consistent with her former client?s interests and needs. While there was some communication between Attorney Chadbourne and successor counsel's office, it was not until October 12 that Ms. Canfield's file was electronically transmitted to successor counsel and October 19 before hard copies were transferred. Her moderate delays in that regard were violative of M. R. Prof. Conduct 1.16(d). Of greater concern, however, was Attorney Chadbourne?s failure to respond to Ms. Canfield?s requests for an accounting and refund. While Attorney Chadbourne was again experiencing medical complications, she failed to respond at all to Ms. Canfield?s repeated requests, which proved distressing to her former client. Following Ms. Canfield?s complaint (and related Petition for Fee Arbitration), Attorney Chadbourne completed an accounting and refunded the unused portion of the advance, together with interest that Attorney Chadbourne voluntarily added to the refund in some effort to partially compensate for the delay. Attorney Chadbourne acknowledges that her delayed refund of Ms. Canfield?s money constituted an instance of prejudicial conduct, in violation of M. R. Prof. Conduct 8.4(d) in that such delay in refunding to a client the unused portion of a client's advance hinders that client's ability to provide an advance for any subsequent counsel.
Finally, Attorney Chadbourne concedes and regrets her lack of response to the Canfield grievance complaint matter. She understands that her failure to so respond to Bar Counsel?s investigation resulted in a violation of M. R. Prof. Conduct 8.1(b). While Attorney Chadbourne?s lack of response largely centered on her absence from the office and her ongoing medical complications, she realizes that she must prioritize both client and practice management concerns.
To that end, Attorney Chadbourne has instituted several measures to ensure a consistent and diligent response to her clients and her business needs. Those measures include the retention of an administrative assistant to answer calls when Attorney Chadbourne is out of the office and to assist in bringing billing current, (which Attorney Chadbourne acknowledges still being behind), and the hiring of a new associate who will begin work in the fall and who will be able to assist clients in Attorney Chadbourne's absence.
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Chadbourne?s above-outlined failures, Ms. Canfield received inadequate access to her counsel and a significantly delayed return of the unused portion of her advanced fees. The Panel notes that Attorney Chadbourne has taken responsibility for her transgressions. She has acknowledged the distress and frustration her actions caused Ms. Canfield and Attorney Chadbourne expressed her remorse for her violations of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to, or otherwise have failed to, properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence supports a finding and Attorney Chadbourne agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Chadbourne?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Dori F. Chadbourne, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e) (3) (C), (4).
Martha C. Gaythwaite, Esq., Chair
Clarke C. Hambley, Jr., Esq.
Richard P. Dana, CPA (Public Member)
Board of Overseers of the Bar v. Ronald G. Caron, Sr., Esq.
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Docket No.: BAR-12-7
Issued by: Maine Supreme Judicial Court
Date: July 9, 2013
Respondent: Ronald G. Caron, Sr., Esq.
Bar Number: 001371
Order: Order and Decision
Disposition/Conduct: Order Discharge of Receiver
ORDER DISCHARGE OF RECEIVER
Pending before the Court is the Board of Overseer's Petition for Discharge and Receiver's Final Report. For good cause shown and without objection, the Board's Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar shall act as primary file caretaker of (deceased attorney) Ronald G. Caron's unclaimed client (original) Wills. Accordingly, the Board shall safe keep Caron's unclaimed client Wills as long as they retain their value.
It is hereby ORDERED, that Attorney Sarah Neault is discharged as Limited Receiver of the law practice of Ronald G. Caron.
In that regard, the Court acknowledges the valuable service Attorney Neault and Bergen & Parkinson has provided as Receiver. The Court extends its appreciation for the firm's efforts to assist the bar and Carons' former clients.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Mary N. Kellett, Esq.
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Docket No.: BAR-13-10
Issued by: Maine Supreme Judicial Court
Date: July 16, 2013
Respondent: Mary N. Kellett, Esq.
Bar Number: 007576
Order: Suspended Suspension
Disposition/Conduct: Conduct Prejudicial to Admin. of Justice;Failure to Use Reasonable Skill & Judgment in Performance of Prof. Services;Failing to Use Before a Jury Means Only Consistent w/ Truth;Prosecutor?s Failure to Make Timely Disclosure to Def. of Exculpatory Evidence
M. Bar R. 7.2(b)
This disciplinary matter was initiated with the Court by the Board of Overseers of the Bar through the filing of an information dated April 24, 2013, pursuant to Maine Bar Rule 7.2(b)(1). Mary N. Kellett?s Answer was submitted on May 20, 2013.
After appropriate notice, the Court conducted a disciplinary proceeding on July 15, 2013. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis, and Kellett appeared with her attorneys, Assistant Attorneys General Ronald W. Lupton and William R. Fisher. The Board?s complainant, Vladek Filler, was also in attendance. He explained to the Court how ADA Kellett?s actions had affected him and presented his response to the parties? proposed sanction Order.
In this proceeding, the parties? counsel had conferred and submitted an agreed-upon detailed proposed Order for the Court?s review and action. That proposed stipulated Order set forth the factual background and misconduct by Kellett. After reviewing the proposed Order, and after hearing from Filler, from Kellett, and from counsel, the Court issues the following Order:
B. TRIAL EVENTS
References to custodial dispute between Filler and his wife
There may be one thing that Mr. Pileggi and I, I think, both can agree on, and that is that the State agrees wholeheartedly that that is the law, and I would emphasize that to you: that the defendant has absolutely no duty to testify and the defendant has no duty to call any evidence -- or present any evidence or present witnesses. But what I?m asking you to do is not to impose that burden on him, but just look at what the evidence is that has been presented to you, because it?s the State?s duty to present evidence, and that is what the State has done, and you have that evidence and I?m asking you to consider that evidence.
C. POST-TRIAL EVENTS
Based upon the above findings, as well as the parties? presentations to the Court, the Court makes the following conclusions:
She admits that her rebuttal argument in Filler?s first trial unfairly prejudiced the defendant and resulted in the granting of a new trial.
She admits that, to the extent certain statements in her closing argument to the jury might suggest that Filler had any burden of proof, her statements were improper.
In so doing, ADA Kellett admits that she violated the rights of the defendant, and violated the following then-applicable Maine Bar Rules: 3.1(a) (conduct unworthy of an attorney); 3.2(f)(4) (conduct prejudicial to the administration of justice); 3.6(a) (failure to employ reasonable care and skill and apply best judgment in the performance of professional services); 3.7(e)(1)(i) (failing to employ before the jury such means only as are consistent with the truth); and 3.7(i)(2) (failing to comply with a public prosecutor?s duty to make timely disclosure to the defense of exculpatory evidence).
This case is the first disciplinary proceeding ever filed with the Court by the Overseers of the Bar against a member of Maine?s prosecutorial bar that is based upon the prosecutor's representation of the State. In reviewing the actions of ADA Kellett, the Court has considered the special duty that a prosecutor owes to the bench, to opposing counsel, to criminal defendants, and to the people of Maine. A prosecutor must always act in an effort to do justice rather than simply to convict. That is because prosecutors do not represent individual victims, nor should they work towards any particular outcome other than one that involves the creation of a fair trial process and outcome. Over seventy-five years ago, the United States Supreme Court described a prosecutor as:
the representative . . . of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935). The Law Court has endorsed this vision of a prosecutor?s role, see, e.g., State v. Young, 2000 ME 144, ? 6, 755 A.2d 547, 548 (?As we have noted previously, prosecutors are held to a higher standard regarding their conduct during trial because they represent the State . . . and because they have an obligation to ensure that justice is done, as opposed to merely ensuring that a conviction is secured.?), and it is because ADA Kellett failed to meet this standard that she must be sanctioned.
However, the Court is also mindful that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to, or otherwise have failed to, properly discharge their professional duties. See M. Bar. R. 2(a). In this proceeding, ADA Kellett has admitted that she did, in fact, violate the Bar Rules in effect at the time of her actions, she has apologized, and she has expressed her remorse for her actions. She has no history of other misconduct, and the Court is satisfied that through these proceedings and through the actions and study she has undertaken since the Filler case, ADA Kellett has a much more robust understanding of the grave obligations and responsibilities attached to the prosecutorial role, and that she is not likely to commit misconduct in the future.
Accordingly, it is hereby ORDERED as follows:
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
1 For reasons that are not clear, that motion was not acted upon by the court for nearly eight months.
2 On the same date, ADA Kellett also provided Attorney Pileggi with a forensic synopsis from the Maine State Police Computer Crimes Unit dated September 28, 2007, that had been requested in Attorney Pileggi?s September 6 letter.
3 There were no recordings, either 911 or investigative, associated with the April 11, 2007, incident.
4 At Filler?s second trial, Deputy Willey testified that his cruiser was equipped with a ?prehistoric or an ancient VHS video cruiser cam that records just to the front.? He further testified that ?any video . . . ended up being recycled because the video was pointed up the road away from the incident. So there was audio only on the video.? The deputy used a digital recorder to create an audio recording of the events of April 24, 2007.
5 After his second trial in May of 2011, Filler was acquitted of the felony sexual assault and one of the misdemeanor assault charges. He was convicted of one misdemeanor assault. That conviction was affirmed on appeal in a Memorandum of Decision dated July 3, 2012.
Board of Overseers of the Bar v. David E. Hunt
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Docket No.: BAR-11-11
Issued by: Maine Supreme Judicial Court
Date: July 18, 2013
Respondent: David E. Hunt
Bar Number: 002522
Order: Suspension
Disposition/Conduct: Diligence; Communication; Improper use of Client Trust Account; Lawyer impairment
ORDER OF SUSPENSION
M. Bar R. 7.3(e)(2)(B)
The Board of Overseers of the Bar has petitioned the Court to suspend David E. Hunt from the practice of law in Maine. The Board?s petition included multiple exhibits and an Affidavit of Assistant Bar Counsel Aria Eee. Following extended negotiations, the parties notified the Court that they had reached agreement on resolution of this matter. This Order of Suspension adopts and approves the parties? agreement.
Attorney Hunt was admitted to the Maine bar in 1981. Since approximately 1997, he practiced in Portland either within a small law firm or as a solo practitioner. In October 2011, Hunt was administratively suspended for his failure to complete his annual attorney registration filing and attain continuing legal education credits required by the Maine Bar Rules.
In recent years, Hunt has suffered from the effects of serious substance abuse, which the Board and Hunt regard to be a form of disability. Hunt initially sought treatment at Mercy Hospital on multiple occasions. In December of 2010 and January of 2011, Hunt sought inpatient substance abuse treatment at Father Martin?s Ashley in Maryland, a well-regarded substance abuse facility. He returned to that facility for a second inpatient treatment session in August 2011. His treatment at Ashley followed a period of absences from his office. Hunt arrived back in Maine on August 17, 2011. Meanwhile, at or about the time of Hunt?s out of state treatment, the Court, upon motion of the Board, ordered on August 18, 2011, that Hunt?s law practice be place into receivership, and the Court appoint Attorney Kurt Klebe, Esq., to serve as the Receiver. On August 24, 2011, Hunt was ordered by the Court to relinquish possession of all his client files and client property to the Receiver.
Prior to the appointment of the Receiver, Hunt was not able to perform all of his legal work or fully monitor his client matters to the standards required by the Maine Code of Professional Responsibility. His failures constituted violations of M. R. Prof. Conduct 1.3 and 1.4. Additionally, Bar Counsel asserts that Hunt made improper use of his operating and trust accounts and failed to comply with M. R. Prof. Conduct 1.15 by placing some advanced fees in his operating account. According to Hunt, he never actually billed clients for retainers. Instead, his practice was to periodically bill the decedents? estates he represented, both for fees already incurred as well as in advance of the provision of services. The Receiver?s March 12, 2012 Report addressed Bar Counsel?s concerns about Hunt?s trust and operating accounts. The Court adopts that Report to resolve any factual disputes related to Hunt?s use of or attempted access to those accounts. Based on the Court?s review and analysis, there likely was a technical violation of Rule 1.15 because, to the extent that client payments were payments in advance for services not yet rendered, the payments should have been deposited by Hunt into his trust account.
Hunt was hospitalized at Maine Medical Center from approximately July 6, to October 2, 2012. He is currently at a facility in Maine where he continues to be treated primarily for medical (physical) maladies. Hunt represents that he has abstained from the use of alcohol since his hospitalization in July of 2012.
The Court finds that due to his impairment and related actions, Hunt has been unable and remains unable to properly discharge his professional duties as a member of the Bar.
Accordingly, upon consideration of the Board of Overseers of the Bar?s Petition for Suspension and the parties? proposed, stipulated agreement, it is hereby ORDERED as follows:
a. Random substance abuse testing must have been in place for one year prior to his Petition for Reinstatement and continue for three years following his reinstatement;
b. Active participation in Alcoholics Anonymous (AA) or other certified substance abuse program;
c. Comply with any and all probation conditions, including no use of alcohol and/or drugs, and no driving if his driver?s license or right to operate a motor vehicle is suspended or revoked;
d. Evaluation by a mental health clinician agreed to by Bar Counsel, and the satisfactory performance of any required treatment, prior to filing a petition for reinstatement;
e. Yearly medical examinations following entry of this Order;
f. Participate and contract with the Maine Assistance Program for Lawyers (MAP) program, including attendance at, and participation in, meetings as referred by the MAP Director;
g. If requested by Bar Counsel, provide ongoing verification that his office lease payments are current if he is a lessee of office space;
h. Employ at least one support staff-person familiar with the requirements of a law office practice if he is a sole practitioner;
i. Maintain current annual registration and CLE requirements as required by the Maine Bar Rules and regulated by the Board of Overseers of the Bar;
j. Reimburse any Receivership fees or costs paid on Hunt?s behalf by the Board of Overseers and or the Lawyers? Fund for Client Protection; and
k. At least one month before Mr. Hunt may file a Petition for Reinstatement, Mr. Hunt, Bar Counsel and a Monitor, shall execute a Monitoring Agreement. The Monitor shall contract for the performance of a limited financial audit of Mr. Hunt?s operating and trust accounts. The Monitor shall also meet with Mr. Hunt each month, and report her/his findings to the Board on a quarterly basis or sooner, if circumstances require. The monitoring of Mr. Hunt?s practice shall conclude after eighteen months, unless both Mr. Hunt and Bar Counsel agree to extend the duration of required monitoring, or the Court extends the duration of required monitoring. Mr. Hunt and Bar Counsel shall attempt to agree on the selection of the Monitor. In the event that they cannot agree on the selection of a Monitor, and in the event that Mr. Hunt intends to resume practice as a solo practitioner, Bar Counsel may select a Monitor, subject to the Court?s approval. In the event that Mr. Hunt and Bar Counsel cannot agree on the selection of a Monitor, and Mr. Hunt has secured employment with a firm of more than three other lawyers, then the Court may appoint a lawyer from that firm to serve as the Monitor.
Justice Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Suzanne Dwyer-Jones
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Docket No.: BAR-11-20
Issued by: Maine Supreme Judicial Court
Date: July 19, 2013
Respondent: Suzanne Dwyer-Jones
Bar Number: 008638
Order: Suspension
Disposition/Conduct: Illegal conduct; Incapacitation affecting practice of Law
CORRECTED DECISION and ORDER OF SUSPENSION
M. Bar R. 7.2(b)
A final hearing was conducted on March 25, 2013 on a petition for suspension commenced by the Board of Overseers of the Bar against Suzanne Dwyer-Jones pursuant to M. Bar R. 7.3(e)(2)(B). The Board was represented by Bar Counsel Aria Eee, Esq., and Ms. Dwyer-Jones, who was present for all proceedings, was represented by James P. Hall, Esq.
The Board?s petition alleges that Ms. Dwyer-Jones is unable to properly discharge her professional duties due to significant substance abuse and substantial mental health conditions. Ms. Dwyer-Jones?s answer admits some of the factual allegations of the petition, denies others, and generally rejects the notion that her professional conduct has been adversely affected by alcohol, drugs, or any psychiatric condition. After conferences of counsel and exchanges of materials between parties, the matter was scheduled for hearing on January 3, 2013, but continued upon the request of Ms. Dwyer-Jones and rescheduled to March 25, 2013.
Ms. Dwyer-Jones then sought a continuance of the March 25 hearing by motion filed March 21, 2013 alleging, inter alia, that (1) she was incarcerated, (2) that counsel had potentially conflicting commitments, and (3) she had been denied medications while incarcerated. After notice and opportunity to be heard, the Court determined that Ms. Dwyer-Jones was currently incarcerated because she had managed to enter into execution of a sentence (discussed infra) that had been stayed beyond the March 25 hearing date. After hearing arguments of counsel, the motion was denied. The Court reaffirmed its ruling on March 25 after a colloquy on the record with Ms. Dwyer-Jones.
Ms. Dwyer-Jones was admitted to the practice of law in the State of Maine in 1998. She is also admitted to practice in Massachusetts and maintains a law office in Lowell, Massachusetts. Her solo practice, which centers upon criminal defense work, involves representing clients in Maine and Massachusetts. She has not previously been involved in any disciplinary proceedings and has had no criminal charges lodged against her until December 30, 2010, when she caused a head-on collision in York, Maine, which resulted in a charge of Operating Under the Influence. Her defense to this charge centered on an assertion that the blood drawn at York Hospital on the night of the collision, which provided evidence of her blood-alcohol level, was not her blood. The District Attorney obtained an order requiring her to provide a blood or tissue sample so DNA testing could confirm or disprove her argument. She has not been compliant with the court?s order.
Ms. Dwyer-Jones came to the attention of the Board in 2011 as a result of her failure to renew her attorney registration and to complete continuing legal education credits. On October 11, 2011, she was administratively suspended by the Board from the practice of law pending her satisfaction of these requirements.
Notwithstanding the Board?s action, Ms. Dwyer-Jones continued to practice law after that date. She claims to have been unaware of the administrative suspension until December 2011; however, the Court finds these claims patently not credible. Ms. Dwyer-Jones knew, as early as September 2011, that her suspension was imminent. At a minimum, she had the duty to take reasonable steps to be aware of her current registration status.
Ms. Dwyer-Jones blames many of her post-2010 behaviors upon certain stressors that she claims lead her to drink alcohol after many years of abstinence. The death of her father in 2009 and the disintegration of her marriage were, in her view, the primary triggers that precipitated her decline.
She testified that she had been involved in a stress-filled marriage and, later, a contentious divorce which culminated in an agreed-upon judgment of divorce in May 2011. Apparently she continued to live in the marital home, which had been awarded to her former husband, for a period of time after the divorce until her former husband forced her out. Before and after the divorce, Ms. Dwyer-Jones made a number of calls to the police that ultimately resulted in the authorities directing her to leave the home.1 The police also responded to at least one call from Ms. Dwyer-Jones?s mother, who was concerned about her substance abuse and mental health issues. Ms. Dwyer-Jones appeared at the police station to complain about a perceived lack of assistance from the local authorities. She was argumentative and sat on the floor during the confrontation, and was ultimately asked to leave the building. In February 2012, the police responded to suicide threats by Ms. Dwyer-Jones as reported to them by her cousin.
On December 4, 2011, Patrol Sergeant Luke Earnenweine of the York Police Department responded to a call from the Microtel Motel about a motel guest who appeared to be intoxicated. Although this guest, later identified as Ms. Dwyer-Jones, drove away, she returned while Sergeant Earnenweine was present. As she walked around him, she appeared unsteady on her feet and her sweatshirt was unzipped, revealing her undergarments. Sergeant Earnenweine asked her to stop so he could speak to her, but she refused to respond to him. He followed her to the elevator and put his foot in the door so it would not close. He smelled alcohol. Ms. Dwyer-Jones said she would fight him if he tried to put her in handcuffs.
Another officer arrived shortly thereafter and Sergeant Earnenweine entered the elevator. Ms. Dwyer-Jones kicked at him and loudly and repeatedly screamed, ?Stop!? After Ms. Dwyer-Jones was removed from the elevator, Sergeant Earnenweine advised her that he had received reports that she had been offering to sell prescription drugs to hotel employees. She denied his accusation and continued yelling. He searched her purse and found a prescription bottle containing two types of pills, only one of which matched the label. He also searched her vehicle and found a prescription bottle for Xanax, but the Xanax tablets in the bottle were a different strength than that indicated on the label.
Ms. Dwyer-Jones was transported to the police station where she underwent a blood-alcohol breath test that produced a result of .16. She was combative and obstreperous for most of the time at the police station. She admitted, and later denied, driving earlier in the evening. She was charged with Operating Under the Influence, Unlawful Possession of Scheduled Drugs, and Refusing to Submit to Arrest.
Later, in January 2012, the same officer saw Ms. Dwyer-Jones driving near the courthouse at a time when he knew she was under suspension,2 and he stopped her vehicle. She was charged with Operating After Suspension, Possession of a Suspended Driver?s License, and Violation of Conditions of Bail.
Zachary Harmon is a patrol officer with the Kittery Police Department. On February 25, 2012, shortly after midnight, while driving his patrol vehicle on the U.S. Route 1 bypass, he observed a vehicle coming at him on an apparent collision course. He activated his lights, drove his cruiser onto the grass to avoid a collision, and turned his cruiser to pursue the vehicle, which was operated by Ms. Dwyer-Jones. During Harmon?s conversation with Ms. Dwyer-Jones, she advised him that she was a lawyer. Officer Harmon noted that her speech was very fast and slurred and she seemed to be flustered. The interior of the car was very cluttered. He smelled no odor of alcohol.
Officer Harmon administered field sobriety tests, including the horizontal gaze nystagmus test, which Ms. Dwyer-Jones failed badly. He reported that Ms. Dwyer-Jones talked incessantly during his entire period of interaction with her. She said she would kill herself if they took her to jail, so Officer Harmon elected to transport her to the hospital. She was charged with Operating Under the Influence
Justina McGettigan, an Assistant District Attorney who has known Ms. Dwyer-Jones for a number of years, became quite concerned over her behavior and the criminal charges she was incurring starting in September 2011. Numerous rambling and emotional messages from Ms. Dwyer-Jones were left on her voice mail. In December 2011, Justice Fritzsche issued a bench warrant for Dwyer-Jones as a result of her non-appearance in her own case. In February 2012, ADA McGettigan filed a motion for revocation of preconviction bail on Ms. Dwyer-Jones?s own pending criminal charges.
In late February, after learning that Ms. Dwyer-Jones had been admitted to a hospital, ADA McGettigan was sufficiently concerned about Ms. Dwyer-Jones?s condition and safety, based upon her behavior and suicide references, to request a court-ordered psychological evaluation. Shortly thereafter, in March 2012, upon the court?s order, Ms. Dwyer-Jones entered the Riverview Psychiatric Center and a full psychological workup was completed.3
Shortly after being released from the Riverview Psychiatric Center, Ms. Dwyer-Jones hired an attorney4 and entered guilty pleas in late April 2012, to two OUI charges and a charge of Resisting Arrest.5 She was placed on probation with a number of special conditions relating to substance abuse. She claims that her probation supervisor, Dennis Clark, was oppressive and uncooperative. The court finds the opposite to be true. After a string of unsuccessful strategies, Officer Clark filed a motion to revoke probation on November 6, 2012. At the probation revocation hearing, after arriving two hours late, Ms. Dwyer-Jones admitted several of the allegations of the motion.6
As the dispositional hearing on the probation revocation drew near, Ms. Dwyer-Jones continued to be uncooperative. She failed to report and was otherwise uncommunicative with Officer Clark. Justice Fritzsche terminated her probation and ordered her to serve a county jail sentence, but allowed a stay of execution that would allow her to attend the March 25, 2013 hearing in this matter. Inexplicably, Ms. Dwyer-Jones arranged to enter into execution the sentence March 11, which resulted in her being incarcerated immediately prior to, and during, the hearing in this matter.
Attorney William Nugent of the Maine Assistance Program (MAP) met Ms. Dwyer-Jones in 2009 shortly after her father died.7 It appeared to him that she was struggling with the stress of that event and difficulties in her marriage. In February 2011 they met again and entered into a contract to address her substance abuse and emotional problems. He met with her once again in January 2013. At that meeting, they discussed the events that had transpired and considered the possibility of a monitoring program administered by MAP. Ms. Dwyer-Jones was amenable to such a program, but she had not fully filled out all the forms necessary for participation in the program as of the date of the hearing in this matter.
During Ms. Dwyer-Jones?s hospitalization at York Hospital and Riverview, she received a diagnosis of bipolar disorder. At the hearing, she acknowledged the fact that she is an alcoholic?she has known this for some time?and that she is now officially diagnosed with a serious, although treatable, psychiatric disorder.
Despite the fact that Ms. Dwyer-Jones is afflicted with a substantial proclivity for substance abuse and a very serious mental health condition, she was apparently able to compensate well during the decade that preceded her precipitous decline after 2010. It is abundantly clear that that she went seriously ?off the rails? (a term that was used on numerous occasions during the hearing) thereafter.
The court has little difficulty in concluding that the combined effects of these conditions clearly produced a substantial incapacity that adversely impacted Ms. Dwyer-Jones?s ability to practice law and resulted in a substantial threat of irreparable harm to the public. Indeed, during this time, she was essentially unable to manage her own affairs, let alone the complex matters involved in the representation of others. The court finds that the incapacitating symptoms of these conditions remain essentially as florid today as they were during the last two years. Accordingly, the court hereby orders that Suzanne Dwyer-Jones be suspended from the practice of law in the State of Maine.
The issues of the duration and conditions of the suspension are conjoined with Ms. Dyer-Jones?s insight into her medical conditions and the progress she has made to manage them.
Although Ms. Dwyer-Jones?s chronic alcoholism and bipolar disorder can, in all likelihood, be managed with proper medication, supervision, and treatment, and she professes to understand the nature and gravity of her conditions, her testimony displayed an unrealistic and oversimplified outlook on what needs to be done. Ms. Dwyer-Jones holds the view that upon being released from the Riverview Psychiatric Center, and being prescribed several psychotropic medications, she was stable and ready to return to the active practice of law. Her testimony, paraphrased to a degree, is basically: I do not feel that I am impaired by my mental health issues. I messed up by drinking. Just give me a chance and it won?t happen again.
Notably missing are an understanding of what needs to be done to address the enormous challenges facing her, and some history of accomplishments indicating that she is making progress, however slight, toward meeting these challenges. To the contrary, Ms. Dwyer-Jones is currently mired in the depression of having hit rock-bottom.8 She will need help and a plan to dig out. The court is acutely aware of Ms. Dwyer-Jones?s fragile mental state and the danger that anxiety and depression present for her.9 The decision to suspend her privilege to practice law in Maine is not taken lightly.
Accordingly, the court imposes a one-year suspension from the date of this order, with conditions as specified below. Ms. Dwyer-Jones may petition for reinstatement thereafter. Any petition for restatement must show insight into the serious problems that resulted in this suspension, her plan to address them, and a showing of substantial progress toward the goal of being able to undertake the affairs of others without being distracted or incapacitated by her underlying conditions.
Suzanne Dwyer-Jones is hereby suspended from the practice of law in the State of Maine pursuant to M. Bar R. 7.2(b) for a period of one (1) year from the date of this order. She may petition for reinstatement thereafter. During the period of suspension, she shall:
(1) undertake active treatment for the conditions noted above from licensed mental health professionals, including in-patient hospitalization if necessary;
(2) advise Bar Counsel of all of the names of her treating professionals and institutions, and execute releases to allow Bar Counsel to monitor her progress in treatment;
(3) attend no less than three (3) AA meetings per week and provide proof of attendance if requested by Bar Counsel;
(4) take all medications as prescribed;
(5) refrain from all consumption of alcohol and drugs, other than medications in the amounts prescribed by her mental health professionals;
(6) take steps to ensure that any of her clients with active cases in the State of Maine are immediately referred to other counsel for representation;
(7) seek employment, as within her abilities, but not provide legal advice or counsel to any other person;
(8) seek stable housing that is not dependent upon the benevolence of other persons;
(9) engage the services of the Maine Assistance Program to assist with her substance abuse recovery and management of her psychiatric condition;
(10) keep the Board updated on her progress on these requirements at regular intervals, not less than quarterly;
(11) make a good faith effort to reimburse MCLIS for her own court-appointed attorney?s services, and similarly reimburse the Board for investigation and prosecution of this matter;
(12) undergo a psychological evaluation at the direction of Bar Counsel if so requested and provide a release to allow Bar Counsel to obtain a report of such evaluation;
(13) otherwise comply with all laws of the State of Maine.10
The Board is granted leave to file an information directly with the court concerning any new complaints of professional misconduct received after the date of this order.
Hon. Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Footnotes
1In September 2011, Detective Sargent Thomas Cryan of the York Police Department responded to the marital residence in response to a call from Ms. Dwyer-Jones reporting that an assault had taken place. Upon arrival, he saw no evidence of assault and concluded that the issue was centered on financial disagreements. He directed Ms. Dwyer-Jones to leave the residence.
2Ms. Dwyer-Jones advised the officer that she had obtained a stay on the suspension of her driver?s license. In fact, she had not. Indeed, a request for stay was received by the Bureau of Motor Vehicles after she was stopped by the officer.
3During the course of the evaluation, which lasted from March 16 through April 16, Ms. Dwyer-Jones confirmed that she had multiple prior mental health hospitalizations.
4Ms. Dwyer-Jones had previously been represented by a court-appointed attorney, Clifford Strike, Esq., but hired attorney Mark Lawrence to handle the remainder of proceedings. The exact date when attorney Lawrence took over representation from attorney Strike is not clear.
5The third OUI remained unresolved as of the date of the hearing in this matter.
6Officer Clark tested her for alcohol consumption on December 14 and received the results on December 18. Ms. Dwyer-Jones tested positive for alcohol. She denies alcohol use during that period.
7Although confidential by statute, Ms. Dwyer-Jones waived her right to confidentiality by offering as evidence her interactions with MAP.
8It is difficult to imagine more dire circumstances: (1) she is essentially homeless with no residential location to call her own; (2) she is destitute, without cash reserves, property, or a revenue stream; (3) her driving privileges will be suspended for the foreseeable future; (4) she has substantial healthcare and treatment needs, but no insurance to underwrite them; and (5) she is unable to practice her profession while under suspension.
9More than one friend and colleague have expressed fears of Ms. Dwyer-Jones committing suicide.
10See M. Bar R. 7.3(j)(5)-(6) for further requirements and procedures for petitions for reinstatement.
Board of Overseers of the Bar v. Benjamin P. Campo, Jr., Esq.
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Docket No.: GCF# 11-401
Issued by: Grievance Commission
Date: July 19, 2013
Respondent: Benjamin P. Campo, Jr., Esq.
Bar Number: 009334
Order: Reprimand
Disposition/Conduct: Candor to the tribunal; Conduct prejudicial to the administration of justice
REPORT FROM GRIEVANCE COMMISSION PANEL E M. Bar R. 7.1(e)(2)(3)
On July 17, 2013, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing under Maine Bar Rule 7.1(e)(2) concerning professional misconduct by the Respondent, Benjamin P. Campo, Jr. Esq. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on February 1, 2013, alleging misconduct in connection with the filing of two Consented Motions for Relief from Stay with the United States Bankruptcy Court in two similar but unrelated matters in violation of Rule 3.3(a) and 8.4(a)(c)(d) of the Maine Rules of Professional Conduct.
At the hearing, Bar Counsel J. Scott Davis represented the Board and the Respondent was represented by Peter J. DeTroy, Esq. The Parties presented a joint exhibit list with Exhibits 1-7 and all were admitted without objection. Exhibits 8 and 9 were later marked by the Board and admitted without objection. The panel heard testimony from the following: Benjamin P. Campo Jr. Esq., Andrew Sparks, Judge James B. Haines, Jr., and Anthony Manhart. Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
Respondent is, and was at all times relevant to, an attorney duly admitted to and engaged in the practice of law in the State of Maine, and subject to the Maine Rules of Professional Conduct.
On August 25, 2011, two voluntary petitions for relief were filed under chapter 7 of the United States Bankruptcy Code. On August 26, 2011, Anthony Manhart was appointed by the Court to act as the interim chapter 7 trustee in connection with the administration of both debtors' estates. A creditors meeting for both cases was scheduled for October 3, 2011. On September 22, 2011 Attorney Campo filed a document entitled, "Consented Motion for Relief from Stay" in each of these cases on behalf of his client, GMAC. At the time that the Motion for Relief from Stay was filed, Attorney Campo in fact did not have the consent of the chapter 7 trustee. As required by D. Me. LBR 9013-1, Attorney Campo sought to obtain the consent of Trustee Manhart relating to the Motion for Relief from Stay. Attorney Campo was advised by the office of the trustee that Trustee Manhart would not give consent until he had a chance to speak to the debtor at the Section 341 meeting of creditors, scheduled to occur on October 3, 2011. Despite not having the consent of the trustee, Attorney Campo proceeded to file with the Court a pleading with the heading "Consented Motion for Relief from Stay" and a draft Order entitled, "Consented Order Granting Relief from Stay." While in the body of the Motion Attorney Campo recited that the Trustee "has not yet given his consent," in the Proposed Order it is stated that the Court executed the Order upon the "apparent consent" of the Movant and the chapter 7 trustee. Under the rules and procedures applicable in the Bankruptcy Court, a secured creditor situated as was GMAC had two alternative routes; if there was no consent to the order, the motion needed to be filed as if it were a contested proceeding, along with a filling fee and both a deadline for objection and a hearing date; if there was a consented-to order for relief from stay, the motion for relief could be filed on that basis and required neither the payment of a filing fee nor the insertion of a deadline for objection and a hearing date. Absent consent, there is no middle ground in which a motion for relief can be submitted as uncontested.
Additionally, consistent with the requirements of the Electronic Case Filling System, Attorney Campo submitted an electronic signature for Trustee Manhart, and in so doing, was certifying to the Court that the signatory had expressly agreed to the form and substance of the document and that the filing attorney had their actual authority to submit the document electronically.
After reviewing the Motions filed in the two matters, Trustee Manhart contacted the Clerk of the Court's Office to inform the Court that as of the date of the filings he had not consented to the Motion.
On September 23, 2011, the Court issued a Deficiency Order, noting that the Motion for Relief from Stay lacked the requisite consent to comply with the requirements of D. Me. LBR 9013-1(d).
On September 26, 2011, Attorney Campo withdrew the Motion for Relief from Stay. Shortly thereafter, the Office of the United States Trustee was contacted to perform an independent investigation into the matter which resulted in a Consent Order for Approval of a Compromise, including the Partial Disgorgement of Fees. On October 24, 2011 Judge Haines conducted a hearing where he heard from and specifically addressed his concerns about this matter with Attorney Campo and Attorney Sparks of Drummond and Drummond, LLP.
At the October 24, 2011 hearing Attorney Campo agreed that the filing of the papers with the Court containing intentionally inaccurate and/or misleading misrepresentations was a serious violation of court procedures, the rules governing the professional conduct of lawyers, and threatened the integrity of the federal bankruptcy system. Attorney Campo reiterated the seriousness of the misfiling and the misrepresentations in the hearing before the Panel.
On December 15, 2011, Judge Haines filed a grievance complaint against Attorney Campo because he was concerned that Attorney Campo had failed to candidly, truthfully or consistently acknowledge to the Court the seriousness of his misconduct.
At the hearing when asked if he understood that a court needs to be able to rely upon the representations of counsel, Attorney Campo answered in the affirmative, and when asked if he understood this at the time these events occurred, he said that he did.
Attorney Campo has acknowledged and taken full responsibility for his failure to properly file the Motions for Relief from Stay. He testified that his filings were intentionally misleading and could have been construed as dishonest. He deeply regrets the inattention and lack of care that he gave these pleadings before filing them with the Court. He points out, however, that the United States Trustee completed an independent investigation which concluded that his actions were not undertaken in bad faith or in a deliberate effort to mislead the Court.
Judge Haines took issue with the findings of the Trustee's investigation and testified that the integrity of the entire electronic filing system was compromised by Attorney Campo's misrepresentation that he had the consent of Trustee Manhart when he affixed his electronic signature to the Proposed Order. He further noted that but for the intervention of Trustee Manhart, the Court, relying on the unauthorized signature, could very well have gone ahead and signed the Order based upon the representations made by Attorney Campo. The Panel agrees that the actions of Attorney Campo violated Maine Rules of Professional Conduct Rule 3.3 which states that "a lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal . . . . " The panel also finds that Maine Rules of Professional Conduct Rule 8.4(d) was violated in that "it is professional misconduct for a lawyer to . . . engage m conduct that the prejudicial to the administration of justice."
Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances.
The conduct described herein is not minor nor was there little or no injury to the legal system. Accordingly, even though Attorney Campo has shown deep regret and promptly endeavored to correct his misleading filing, he did so only after his misrepresentation had become public. A Dismissal with a Warning is not an appropriate determination in this case.
The Panel hereby determines that the appropriate sanction is a reprimand pursuant to Maine Bar Rule 7.1(e)(3)(C), and Respondent 1s accordingly so reprimanded.
Dated: 7/19/13
Victoria Powers, Esq. Panel Chair
Robert S. Hark, Esq.
Marjorie M. Medd, Public Member
Board of Overseers of the Bar v. Jay H. Otis
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Docket No.: BAR-13-7
Issued by: Supreme Judicial Court
Date: August 5, 2013
Respondent: Jay H. Otis
Bar Number: 002941
Order: Receiver Appointment
Disposition/Conduct: Amended Order for Appointment of Receiver
Amended Order for Appointment of Receiver M. Bar R. 7.3(f)(1)
Upon the July 24, 2013 Motion to Amend Order of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Attorney Roberta Winchell (Winchell Law & Associates, LLC) is re-appointed as the Receiver of (suspended) Attorney Jay R. Otis?s law practice. Attorney Winchell shall:
As a service to the bar, Attorney Winchell acknowledges that she shall serve as Receiver on a pro bono basis, although if there are sufficient assets from the Otis law practice, Winchell Law & Associates, LLC may be reimbursed from those assets. The Receivers shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, the Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Otis and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Otis, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Winchell shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Winchell Law & Associates, LLC so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney Winchell may be engaged by any former client of Mr. Otis?s provided that the Receiver informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receivers? employment by the client.
The Receiver is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client?s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of Attorneys Winchell?s appointment by this Order.
Attorney Winchell and Winchell Law & Associates, LLC shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within thirty (30) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Assistant Bar Counsel Aria Eee, Esq.
Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re David E. Hunt
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Docket No.: 2:13-mc-00155-JAW
Issued by: Chief United States District Judge
Date: August 9, 2013
Respondent: David E. Hunt
Bar Number: 002522
Order: Suspension
Disposition/Conduct: Related Maine Supreme Judicial Court?s Order dated 7/18/2013
Respondent David E. Hunt having shown no good cause why this Court should not impose the identical discipline imposed upon him on July 18, 2013, by the Maine Supreme Judicial Court, it is hereby ORDERED, pursuant to Local Rule 83.3, that this Court imposes the identical discipline. David E. Hunt is hereby suspended from the practice of law in this Court for three years, nunc pro tunc to August 18, 2012.
John A. Woodcock, Jr. ? Chief United States District Judge
Board of Overseers of the Bar v. Matthew E. Clark, Esq.
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Docket No.: GCF# 13-031 & 13-053
Issued by: Grievance Commission
Date: August 13, 2013
Respondent: Matthew E. Clark, Esq.
Bar Number: 010030
Order: Findings
Disposition/Conduct: Probable cause found for further proceedings before the Court
REPORT OF FINDING OF PROBABLE CAUSE FOR FILING OF INFORMATION WITH COURT - GRIEVANCE COMMISSION PANEL D
Pursuant to a Disciplinary Petition dated May 23, 2013, a disciplinary hearing open to the public was scheduled for July 31, 2013 at 9:00 a.m., with proper notice provided to all parties. The members of Grievance Panel D were present at the Board of Overseers of the Bar in Augusta, Maine. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee. Complainants Gerald Donahue, and Attorney James Billings, were both in attendance and testified as witnesses. The Respondent, Matthew Clark, did not appear. Because the Respondent did not file a response to the Disciplinary Petition, the facts as alleged in the petition were taken as admitted, pursuant to Maine Bar Rule 7.1(e).
Based upon the petition, admitted exhibits, and testimony presented at the hearing, the panel concludes that an appropriate sanction in this matter would be a period of suspension or disbarment. Accordingly, the panel finds probable cause for such discipline, and hereby directs Bar counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 7.2(b).
William E. Baghdoyan, Esq. - Chair
James A. McKenna III, Esq.
Milton R. Wright
Board of Overseers of the Bar v. In Re Suzanne Dwyer-Jones
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Docket No.: 2:13-mc-0165-JAW
Issued by: Chief United States District Judge
Date: August 26, 2013
Respondent: Suzanne Dwyer-Jones
Bar Number: 008638
Order: Suspension
Disposition/Conduct: Related Maine Supreme Judicial Court?s Order dated July 19, 2013
Respondent Suzanne Dwyer-Jones having shown no good cause why this Court should not impose the identical discipline imposed upon her on July 19, 2013, by the Maine Supreme Judicial Court, it is hereby ORDERED, pursuant to Local Rule 83.3, that this Court imposes the identical discipline. Suzanne Dwyer-Jones is hereby suspended from the practice of law in this Court for one year.
John A. Woodcock, Jr. ? Chief United States District Judge
Board of Overseers of the Bar v. Scott G. Adams, Esq.
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Docket No.: GCF# 11-277
Issued by: Grievance Commission
Date: August 15, 2013
Respondent: Scott G. Adams, Esq.
Bar Number: 008019
Order: Dismissal with Warning
Disposition/Conduct: Failure to promptly refund unearned funds to a third party (a trust beneficiary)
REPORT OF FINDINGS AND ORDER OF PANEL C
The above matter came before GCF Panel C pursuant to a Disciplinary Petition dated October l5, 2012. Proper notice being provided, a public disciplinary hearing was conducted pursuant to M. Bar. R. 7.1(e)(1) on July 17, 2013 at the Cumberland County Superior Courthouse. The Petitioner was represented by Assistant Bar Counsel Aria Eee. The Respondent appeared pro se. The parties agreed to the composition of the panel.
Martha C. Gaythwaite, Esq. Chair, Panel C
Peter C. Fessenden, Esq.
Richard Dana Public Member
Footnote 1For example, Attorney Herman testified that she did not intend to send Attorney Adams the tax returns when she represented she would.
Board of Overseers of the Bar v. Christopher R. Causey, Esq.
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Docket No.: GCF# 12-251
Issued by: Grievance Commission
Date: September 10, 2013
Respondent: Christopher R. Causey, Esq.
Bar Number: 009566
Order: Reprimand
Disposition/Conduct: Negotiation for employment with attorney for a party by mediator; Engaging in conduct prejudicial to the administration of justice
DECISION
The Board of Overseers of the Bar prosecuted a complaint of improper conduct by Respondent, Christopher Causey [hereafter Respondent or Causey], regarding his service as a private mediator in a divorce case during May and June, 2012. The Board contends that Causey violated Rule 1.12 of the Rules of Professional Conduct by negotiating for employment with a firm while serving as a mediator in a divorce in which one party was represented by that firm. The Board also contends that the Respondent?s conduct was prejudicial to the administration of justice and thus violated Rule 8.4(d).
The original complaining party was the husband involved in the divorce, Jeff D. Emerson. He was represented in that proceeding by David Abramson, Esq. of Verrill Dana, LLP. The wife in the divorce was represented by Diane Dusini, Esq. of MittelAsen, LLC. These two attorneys engaged Respondent in April, 2012 to mediate complicated financial issues arising from the divorce, which were made even more difficult by the parties? mutual hostility.
Early in his career, Causey was employed as a civil litigator, but for more than the 10 years before these events, he increasingly pursued a mediation practice, including a large volume of domestic relations cases, as a solo practitioner. Located in Portland, he became well known and respected among the bar handling those cases for his skill in promoting resolution of these matters through mediation. By early 2012, Causey was thinking about leaving solo practice to affiliate with a firm, and he decided to explore the job market to resume a more litigation-focused practice. His initial foray into this area consisted of putting out ?feelers? to lawyers and firms familiar with his recent work as a mediator.
Within a week or two after he agreed to mediate the divorce giving rise to this matter, Respondent was invited to have dinner with Michael Asen, a senior member of Diane Dusini?s law firm. Asen had recently decided to reduce his involvement in the daily practice of law, and his firm had also just lost another long-time partner. The remaining 6 or 7 partners at MittelAsen decided to look for at least one new attorney to fill the void created by these developments. Although the prior relationship between Causey and Asen was purely professional, Asen testified that the dinner was a social engagement prompted by an encounter and discussion with Causey at the supermarket. While the ostensible purpose of the dinner at the ?best sushi restaurant north of New York? was social, it seems clear that Asen had some interested in Causey as a possible colleague. See, e.g. the comment of Causey in a June 26, 2012 e-mail to Dusini: ?When Mike first approached me??
After small talk, the two men discussed Respondent?s interest in resuming civil litigation, as well as the possibility that MittelAsen might have an opening. No request for employment or offer was made, but Asen provided Causey with some information about how the firm was organized and told Respondent to contact Dusini if ?he was serious? to find out more about how the firm operated, particularly its financial structure. Asen testified that he was uninvolved in hiring decisions at that point, and that a consensus of all partners would be needed to bring in a new attorney. Both Asen and Causey stated that this meeting was somewhat abbreviated because Causey had to leave sooner than expected to take care of his children.
On May 9, 2012, Respondent emailed Attorney Dusini, asking her to discuss ?financial questions I have around MittelAsen.? She replied: ?I am very excited you are thinking about this as an option!? A few days after that, they spoke for about 20 minutes about the compensation structure at MittelAsen. In a later email, dated June 26, 2012, Respondent wrote: ?Regarding the percentages, I bought into the numbers a month ago.?
On May 22, 2012, Attorney Robert Mittel, another senior partner at MittelAsen, called the Board of Bar Overseers and discussed the meaning of M.R.P.C. 1.12 with Bar Counsel Scott Davis, apparently with reference to Causey. According to Bar Counsel?s notes, the focus of the discussion was whether there was any imputation of the rule to members of the firm not involved in the case with the mediator and also what would be the impact if the mediator joined the firm while the case was still pending. Mittel concluded at that point that a violation of the rule by the law firm was unlikely, as he did not feel that the firm and Causey were in ?negotiations? over employment. It is not clear from Bar Counsel?s Ex. 22 whose conduct was the subject of this inquiry. We cannot assume Mr. Davis gave Attorney Mittel advice that contradicts the interpretation of Rule 1.12 his office presses in this Complaint.
On May 30, 2012, Respondent conducted the subject divorce mediation, lasting over 3 hours at MittelAsen. Many of the financial issues could not be reached within the time he had allotted for the mediation, although the parties agreed on interim support and a division of some marital property. Complainant?s attorney (Abramson) testified that the parties and Respondent agreed they would reconvene to address the remaining issues. Respondent denied being under that impression, and in fact mailed a bill to the party for his services the following day.
The next day, Attorney Dusini emailed Causey that two other partners at MittelAsen wanted to meet him. Both Dusini and Respondent understood that these meetings would involve discussions about a possible new business relationship between the law firm and Respondent. On June 1 Abramson wrote to Dusini and stated that he would be working with Dusini?s office (while she was on vacation) and Chris Causey to set up another mediation with Causey. By letter dated June 5 Dusini stated that: ?We are happy to set up another mediation with Chris Causey at the end of the month?? On June 12 the parties to the divorce case scheduled a follow-up mediation session with Respondent to take place on July 6, 2012. By June 26, 2012, or early on June 27, the final terms of Respondent?s future employment with MittelAsen were ironed out in emails between him and Dusini. The second divorce mediation session was cancelled late in the day on June 26, 2012 by Dusini with the explanation that it was unlikely to be productive, and that a judicial settlement conference would be preferable. On June 27, 2013, Causey sent an email to Dusini, Mittel and others at the law firm thanking them for offering him employment and indicating that he was ?really looking forward to being part of your firm.? On June 28, 2012 Causey notified Abramson by e-mail that he was taking a position with MittelAsen. Abramson had no prior notice that Causey and MittelAsen were engaged in employment discussions.
In the aftermath of these events, Dusini recused herself from further participation in the divorce case, to avoid a conflict of interest, since Respondent was now a member of her law firm. (An effort to secure a waiver of the conflict was unsuccessful because the parties could not agree on the specific language of a waiver.) As a result of her withdrawal from the case, Complainant?s wife had to find a new lawyer to represent her in the divorce case. This resulted in the cancellation of a judicial settlement conference scheduled for the second week in July, delaying the conclusion of the divorce case until another date could be scheduled later that fall. The conflict of interest created by Respondent?s employment with MittelAsen resulted in additional legal expenses for Complainant, and intensified the discord between him and his spouse, due to a perceived breach of trust in the legal process that he ascribed, fairly or not, to his wife, her counsel, and Respondent.
At issue is whether or not Respondent?s conduct violates M.R.P.C. ?8.4(d) (?conduct prejudicial to the administration of justice?) and ?1.12(b), which provides in pertinent part:
?A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral.?
We conclude that Respondent?s activities up to and including the May 30, 2012 mediation session violated this rule, because he was ?negotiating for employment?, as that phrase is commonly accepted and understood.
The apparent purpose of Rule 1.12(b) is to avoid actual bias or the appearance of bias by judicial or quasi-judicial officers in the discharge of their duties, thereby preserving public confidence in the administration of justice and in particular trust in the impartiality of the adjudicator or mediator. By itself, Causey?s dinner meeting with Asen could be characterized as an exploratory discussion rather than a negotiation. We conclude that dinner ended, however, with Asen extending an invitation to Causey to negotiate for employment. If Causey had not followed up on this invitation, there would have been no impropriety on his part. When Causey approached and met with Attorney Dusini, however, just a few weeks before the mediation in which she would appear on behalf of a litigant, his purpose was to learn about the compensation structure of MittelAsen. That was a concrete demonstration of his seriousness about ?this option? for employment. We conclude that at that point he commenced substantive discussions about employment with MittelAsen, that these discussions were negotiations about employment, and that he knew or should have known that his continuing service as a neutral mediator in the divorce case would be improper. We find that Causey?s characterization of negotiations as not commencing until June 22 to be an unduly constrained definition of the term. Minimizing his activity as merely, ?kicking the tires?, to use a colloquialism mentioned by both Causey and Dusini, is disingenuous.
For Rule 1.12 to accomplish its goal, ?bargaining for employment? should encompass any overt action intended to promoted the prospects of employment of the mediator or judicial officer with a party or lawyer for a party, at least in those circumstances when the party or the lawyer for the party has an employment opportunity available. This seems especially true if the lawyer for the party, Dusini, has an obvious interest in and influence over any decision to hire the mediator/judicial officer.
Waiting until a contract of employment has been finalized before withdrawing, as happened here, is not what Rule 1.12 envisions. Respondent?s continued participation in the divorce case even after the May 30, 2012 mediation, in light of his ongoing efforts to meet with and make a favorable impression upon the remaining partners in the law firm, compounded the seriousness of his pre-mediation rule violation. He should not have accepted the assignment to mediate the divorce a second time, knowing that he was being considered for employment at MittelAsen, and even by Causey?s own definition of negotiations, he should have notified Attorney Abramson of his discussions with MittelAsen no later than June 21-22. It is no excuse to say that his role as a mediator begins and ends with the actual mediation. If the party that is a potential employer of the mediator perceives it will have an advantage at a future mediation due to improper leverage or influence with the mediator, settlement of the case may be more difficult than if the mediator is free of taint.
In conclusion, we find that Respondent?s conduct, both before and after May 30, 2013, violated Rule 1.12(b) and Rule 8.4(d). Because we conclude that this violation resulted in significant financial harm, inconvenience and emotional distress to the litigants, we must impose a public reprimand as a sanction. Maine Bar Rule 7.1(e)(3)(C).
While we find that Respondent?s conduct was improper, Complainant and Bar Counsel agree that Causey never intended to, and did not in fact, prejudice the substantive legal rights of either party to the divorce litigation. By all accounts, he functioned competently, without bias and without revealing any confidences. His violation of the rules, while serious, resulted from eagerness to seize an inviting opportunity for a new job, which colored his ability to objectively assess his behavior. Furthermore, Respondent has no prior record of discipline. Finally, in our opinion there is little likelihood that Respondent is likely to cause future harm, as he has earned a reputation as well-respected and honorable person and attorney. Therefore, additional sanctions are unnecessary and would be excessive.
For Panel B
Maurice A. Libner, Esq., Panel Chair
Thomas H, Kelley, Esq., At-Large Member
Kenneth Roberts, Lay Member
Board of Overseers of the Bar v. David P. Pancoast
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Docket No.: GCF# 13-043
Issued by: Grievance Commission
Date: September 16, 2013
Respondent: David P. Pancoast
Bar Number: 003450
Order: Dismissal with Warning
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2)
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar R. 7.1(e)(2)(3)(4)
On September 16, 2013 with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, David P. Pancoast. This disciplinary proceeding had been commenced by the filing of a Petition pursuant to M. Bar R. 7.1(e) by the Board of Overseers of the Bar on June 24, 2013. On July 15, 2013 Pancoast filed his answer to that Petition and admitted the misconduct alleged by the Board.
By agreement of the parties and approval of the Panel, Pancoast participated and attended the hearing by a speaker telephone that was audible for everyone in attendance and participating at the hearing. The Board was represented by Bar Counsel J. Scott Davis and Pancoast so appeared pro se. Prior to the disciplinary proceeding, the parties had filed and submitted to the Board Clerk a stipulated, proposed Report for the Panel?s review and consideration.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
David P. Pancoast was, until the imposition of an administrative suspension by the Board on October 22, 2012, at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. He was admitted to the Maine Bar in 1986.
On October 22, 2012 Pancoast was administratively suspended by the Board due to his failure to file his annual registration statement, pay the required fee and complete the proper credit hours of continuing legal education as required by Maine Bar Rules 6(a)(1), 10(a)(1) and 12(a)(1), respectively. He also did not thereafter file the affidavit certifying his compliance with the suspension notification requirements of Maine Bar Rule 7.3(i)(2)(A)(B) as is mandated to occur within 30 days after that suspension date.
By a certified letter of November 29, 2012, Bar Counsel notified Pancoast of the consequence of his failure to file that required affidavit. On or about December 26, 2012 the Board received notice from the United States Postal Service that the November 29, 2012 certified mailing from Bar Counsel had not been accepted or received by Pancoast at his last provided and known business address of 9 Tellison (sic) Road, Rowley, MA 01969 and that the USPS was ?unable to forward? the mailing to Pancoast. Therefore, Pancoast did not then receive that notice of his need to meet Bar Counsel?s response filing deadline date of December 24, 2012 in order to comply with Maine Bar Rule 7.3(i)(2) and avoid the docketing of this grievance matter against him.
On or about January 29, 2013, Bar Counsel initiated and docketed a sua sponte grievance complaint against Pancoast based upon his continuing failure to comply with the affidavit requirement. Bar Counsel?s docketing and request letter to Pancoast in this grievance matter was again mailed to the last business address for Pancoast known to the Board, i.e. 9 Tellison (sic) Road, Rowley, MA 01969. As a result, on February 4, 2013 that undelivered mailing was returned and received by the Board with a notice to ?Return to Sender.?
By letter dated March 28, 2013 addressed to Pancoast at his home address of 22 Elm Street, Unit 1R, Ipswich, MA 01938-2311, Bar Counsel provided him with notice of his failure to respond to this docketed grievance matter. Pancoast was also then informed that Bar Counsel intended to have this matter reviewed under Maine Bar Rule 7.1(d) in the near future, and that Pancoast should file his response by April 8, 2013. That mailing of March 28, 2013 was never returned to the Board, and Pancoast never filed any response.
On May 23, 2013 a panel of the Grievance Commission reviewed Pancoast?s actions and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
In his ?Answer to Disciplinary Petition? of July 15, 2013 Pancoast admitted he had engaged in the alleged misconduct, apologized for his actions and for the first time provided substantive information relating to the basis for his administrative suspension from practice in Maine and resulting failure to timely submit the required suspension notification affidavit.
From the very detailed personal account that Pancoast provided to the Panel in that Answer, it is clear that the recent deaths in his family caused emotional and financial difficulties for him.
First, the death of his brother, Gary, from cancer in July 2011 resulted in Pancoast becoming the primary caregiver for their very elderly mother who had her own serious medical issues. Pancoast?s assumption of those caregiver duties for his mother had negative effects upon Pancoast?s professional career and personal life. He became separated from his wife in the fall of 2011, and his mother then passed away in October 2012. The financial and personal obligations incurred by Pancoast both as his mother?s caregiver and following her death, coupled with his own health issues, caused him to fail to meet his payment and related obligations to the Board in 2012.
By his three-page Affidavit of September 5, 2013 (a copy of which was provided to the Panel) Pancoast then finally complied with the requirements of Maine Bar Rule 7.3(i)(2)(A)(B). That affidavit confirms that Pancoast had no Maine clients to notify of his administrative suspension in 2012, but he agrees and understands the Maine Bar Rules still required him to file an affidavit with the Board so confirming that he had no Maine clients at the time he was suspended. The Panel also notes and understands that Pancoast is in the process of filing a petition for reinstatement to practice in Maine, but currently remains administratively suspended.
Pancoast agrees that he violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.4(a). He regrets those errors and has corrected them by belatedly filing his Affidavit of September 5, 2013.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to clients and the courts. Pancoast violated his duties to the legal system by failing to complete the annual registration requirements in 2012 and by then failing to file the required notification affidavit once he was administratively suspended. Such misconduct caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
There is one relatively minor aggravating circumstance. Twenty years ago, in April 1993, Pancoast received a confidential dismissal with a warning for an improper withdrawal in a client?s court matter. That matter concerned a New Hampshire client for a matter in that state, as Pancoast has virtually had no Maine practice or clients since being admitted in Maine. He has no other sanction record on file with the Board. There are, however, several mitigating circumstances. This current instance of misconduct by Pancoast is not the result of dishonest or selfish motives and occurred during a time of personal emotional difficulty relating to the recent deaths of his brother and then their mother. There was no injury to any Maine clients as a result of his misconduct, and Pancoast has taken responsibility for his transgressions. At the disciplinary hearing, he expressed remorse for his violations of the Maine Rules of Professional Conduct and the Maine Bar Rules and also apologized to Bar Counsel and the Grievance Commission Panel.
Because the misconduct was minor, there was no harm to any clients, little harm to the profession and the misconduct appears very unlikely to be repeated by Pancoast, the Panel accepts the agreement of the parties, including Pancoast?s separately executed waiver of the right to file an Objection to Warning. As a result, the Panel concludes that the appropriate disposition of this case is a public Dismissal With a Warning to David P. Pancoast which is now hereby issued pursuant to M. Bar R. 7.1(e)(3)(B),(4).
Victoria Powers, Esq., Chair
John C. Hunt, Esq.
Marge M. Medd
Board of Overseers of the Bar v. Warren M. Turner
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Docket No.: BAR-11-15
Issued by: Maine Supreme Judicial Court
Date: September 10, 2013
Respondent: Warren M. Turner
Bar Number: 001623
Order: Order and Decision
Disposition/Conduct: Order Discharge of Receiver
ORDER DISCHARGE OF RECEIVER
Pending before the Court is the Board of Overseer's Petition for Discharge and Receiver's Final Report filed on September 5, 2013. For good cause shown and without objection, the Board's Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers shall act as primary file caretaker of (suspended attorney) Warren M. Turner's unclaimed client files. Accordingly, the Board shall tend Turner's unclaimed client files for a minimum of eight (8) years before any destruction of those files. However, the Board shall retain and tend those items of intrinsic value (original wills and deeds) as long as they retain their value.
It is hereby ORDERED, that Attorney Thomas Ainsworth is discharged as Receiver of the law practice of Warren M. Turner.
In that regard, the Court acknowledges the generosity, extensive efforts, and valuable service Attorney Ainsworth has provided as Receiver and extends its sincere appreciation for his numerous hours of work in this process. The Maine Bar is undoubtedly privileged to have such dedicated and selfless practitioners among its members. Attorney Ainsworth is commended for his pro bono work in this arduous matter.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Warren M. Turner
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Docket No.: BAR-11-15
Issued by: Maine Supreme Judicial Court
Date: September 20, 2013
Respondent: Warren M. Turner
Bar Number: 001623
Order: Order and Decision
Disposition/Conduct: Amended Order Discharge of Receiver
AMENDED ORDER DISCHARGE OF RECEIVER
Pending before the Court is the Board of Overseer's Petition for Discharge and Receiver's Final Report filed on September 5, 2013. For good cause shown and without objection, the Board's Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers shall act as primary file caretaker of (suspended attorney) Warren M. Turner's unclaimed client files. Accordingly, the Board shall tend Turner's unclaimed client files for a minimum of eight (8) years before any destruction of those files. However, the Board shall retain and tend those items of intrinsic value (original wills and deeds) as long as they retain their value.
It is hereby ORDERED, that Attorney Thomas Ainsworth is discharged as Receiver of the law practice of Warren M. Turner.
In that regard, the Court acknowledges the generosity, extensive efforts, and valuable service Attorney Ainsworth has provided as Receiver and extends its sincere appreciation for his numerous hours of work in this process. The Maine Bar is undoubtedly privileged to have such dedicated and selfless practitioners among its members. Attorney Ainsworth is commended for his pro bono work in this arduous matter. It is ordered that Attorney Ainsworth be reimbursed in the amount of $392.59 for his out of pocket expenses.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. John D. Griffin
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Docket No.: BAR-13-4
Issued by: Maine Supreme Judicial Court
Date: September 23, 2013
Respondent: John D. Griffin
Bar Number: 001528
Order: Order and Decision
Disposition/Conduct: Order Approving Limited Receiver's Report
ORDER APPROVING LIMITED RECEIVER'S REPORT
Pending before the Court is the Limited Receiver's First Formal Status Report filed on September 20, 2013. After review, the First Formal Status Report is ACCEPTED as follows:
It is hereby ORDERED that Attorney Jon S. Oxman's appointment as Limited Receiver shall continue, and his proposed plan of action concerning the closing and/or disposal of the files of Attorney John D. Griffin is APPROVED, with the following amendment.
It is further ORDERED that the Board of Overseers of the Bar shall act as primary file caretaker of John D. Griffin's unclaimed client files. Accordingly, after the Limited Receiver has identified Attorney Griffin's unclaimed client files, the files shall be turned over to the Board, which shall maintain those files for a minimum of eight years. After eight years, the Board shall destroy the unclaimed files. However, the Board shall retain and tend those items of intrinsic value (original wills and deeds) as long as they retain their value.
The Court acknowledges the enormous effort and valuable service Attorney Oxman has already provided as Limited Receiver, thanks him for his work, and extends its sincere appreciation for his willingness to serve as a receiver. The Maine Bar is fortunate to have such generous and dedicated practitioners within its ranks.
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Ron E. Hoffman, Esq.
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Docket No.: BAR-13-6
Issued by: Maine Supreme Judicial Court
Date: September 30, 2013
Respondent: Ron E. Hoffman, Esq.
Bar Number: 008593
Order: Suspended Suspension
Disposition/Conduct: Commission of a criminal/unlawful act that reflects adversely on the lawyer?s honesty/trustworthiness/fitness as a lawyer; Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; Conduct that is prejudicial to the admin of justice
ORDER & DECISION
M. Bar R. 7.2(b)(2)
This bar disciplinary matter concerning Attorney Ron E. Hoffman is before the Court based upon the parties? Stipulated Waiver of Grievance Commission Proceedings dated March 15, 2013, the Court?s resulting Order of March 27, 2013, and the Board of Overseers of the Bar?s Stipulated Information of May 21, 2013, regarding grievance charges brought against Hoffman by Bar Counsel?s sua sponte notice letter of July 9, 2012, pursuant to M. Bar R. 7.1(b)(d).
The matter was heard at the Lewiston District Court on September 27, 2013. At the hearing, the Board was represented by Bar Counsel J. Scott Davis; Attorney Hoffman was present and represented by James F. Martemucci. By agreement of the parties the facts that led to the grievance filing are stipulated, as is the determination that these facts constitute a violation of specified sections of the Maine Rules of Professional Conduct. The only issue that was contested at the hearing was the nature and extent of sanctions to be imposed based on the admitted violation of Rules 8.4(a)(b)(c) and (d) of the Maine Rules of Professional Conduct.
The findings of fact and conclusions regarding violation of the Rules of Professional Conduct, stated below, track the findings as agreed by the parties in a Draft Order and Decision filed with the Court prior to hearing with updates and clarifications from the evidence presented at hearing.
1. Findings of Fact
The grievance proceeding was initiated or about July 9, 2012, with a notice to Hoffman that based upon Bar Counsel?s understanding of criminal charges being filed against Hoffman for two counts of Terrorizing (Class D), 17-A M.R.S. ? 210(1)(A), FARDC-CR-2012-514, he was being charged with violating M.R. Prof. Conduct 8.4(a)(b)(c)(d).
Hoffman was admitted to the Maine bar in 1997 and has maintained a solo practitioner practice in Rumford since approximately 2001. His current practice involves mostly criminal defense, child protective cases, family law and various general civil litigation matters. Although he received a minor private dismissal with a warning sanction for a minimal misconduct matter in 2003, Hoffman has no prior disciplinary record on file with the Board of Overseers of the Bar. See M. Bar R. 7.1(d)(4)(B).
On March 29, 2012, two telephonic bomb threats were made within a two minute time frame to two elementary schools in Wilton. The first such call occurred at 9:23 a.m. to the Academy Hill School. A second call occurred at 9:24 a.m to the G. D. Cushing School. The two threatening calls were made by an adult male using slurred speech and stating in both instances that ?there is a bomb in your school!?
As a result of those bomb scare calls, the two elementary schools were immediately evacuated and a sweep of each building was then completed by bomb detection dogs. No bombs were found in either school building. The sudden evacuations of all students and staff caused much confusion, anger and upset to everyone, particularly the very young and impressionable students, several of whom cried. The Court has been provided with and read the March 30, 2012, and April 12, 2012, letters submitted by Wilton Elementary Schools Principal Darlene Paine setting forth her impression of the extent of the significant emotional trauma and upset generated by these bomb scares.
The two frightening calls were immediately reported to and an investigation undertaken by the Wilton Police Department. From that investigation, which included Wilton Police Chief Heidi Wilcox?s obtaining of a court order on April 2, 2012, authorizing access to cell phone records information, it was determined that the telephone calls were each initiated by the same cellular phone number, identified as (207) 730-2626. Chief Wilcox determined that this cell phone had been purchased at the Walmart store in Mexico on March 28, 2012, at 5:44 p.m., and that it was activated the very next day, March 29, 2012?the date of the bomb scares?at 8:07 a.m. Investigation also confirmed that no other calls were ever made by or initiated from that cell phone number and that it had become inactive immediately after the bomb scare calls were made on it.
Maine State Police Detective Randall Keaten also investigated these bomb scare telephone calls. In his investigation, Detective Keaten obtained and observed the Mexico Walmart store?s video of the sale and purchase of the Tracphone that Chief Wilcox had determined was used in the March 29th bomb scares. From reviewing that video on April 4, 2012, Detective Keaten observed that the purchaser was Attorney Ron E. Hoffman, a person with whom he was personally familiar from his 16 years as a law enforcement officer in Franklin and Oxford Counties.
On April 5, 2012, Detective Keaten applied for and obtained two search warrants from to conduct searches of Hoffman?s residence in Sumner and his vehicle, a 2011 Subaru. Keaten and Maine State Police Detective John Hainey executed those search warrants on that same date. They did so by first meeting with Hoffman at the Farmington District Court.
At that meeting, an initial question posed to Attorney Hoffman was whether he had ever purchased a Tracphone. Hoffman initially denied that he had recently purchased any Tracphone, but when presented with a photo that showed him purchasing one at the Mexico Walmart store on March 28, 2012, at 5:44 p.m., he revised his response. He then told Detectives Keaten and Hainey that he had purchased that Tracphone for his brother-in-law in Colorado, but that he had been unsuccessful in his attempts to activate that phone on March 29th and had then discarded the phone in his office trash that same day. Hoffman also told the detectives that he had retained the phone card that he had purchased the same night he had bought the cell phone. He voluntarily gave the detectives the phone card. Hoffman denied ever using the Tracphone to call in any bomb scares at the Wilton area schools, and further denied ever using that Tracphone for any calls.
Detectives Keaten and Hainey then executed the search warrant concerning Hoffman?s Subaru, doing so in Hoffman?s presence adjacent to the Franklin County Courthouse in Farmington. In that search, the detectives observed three 12-volt adapters and one 110-volt adapter for use with cell phones or hand-held media devices. They also observed a cellular hands-free wire device located in a handbag in the back of Hoffman?s vehicle.
In the evening hours of April 5, 2012, Hoffman voluntarily permitted the detectives to search his law office in Rumford, in Hoffman?s presence, to review Hoffman?s schedule for the date of March 29, 2012. At the law office meeting, Hoffman provided information that was later determined to be misleading and false, specifically that he had met with and conducted an interview at his law office with a specific client on March 29, 2012 that had occurred from between 9:00 a.m. until 10:00 a.m., or ?a little over an hour.? He also denied ever travelling west of Rumford Island towards Rumford Center on that date, and instead claimed that he had only traveled to Mexico, which is located to the east of Rumford Island. This statement was important to the detectives because the records obtained in the investigation had confirmed that the bomb scare calls had originated and been executed from locations in or nearby to Rumford Center.
That same evening, the detectives met with Hoffman at his residence in Sumner. They then discussed with him the objects they had earlier found in his Subaru, specifically the 110-volt wall charger and the handbag. Hoffman appeared nervous and denied that there had been any wall charger in his Subaru. Hoffman then showed Detective Keaten the handbag, but when he did so Detective Keaten noted that the hands-free device had been removed since the vehicle search had been conducted at the courthouse.
On July 2, 2012, Hoffman was charged by criminal complaint in the Farmington District Court with two counts of Terrorizing (Class D) in violation of 17-A M.R.S. ? 210(1)(A), addressing the respective telephone bomb threats of March 29, 2012 at the Academy Hill School and the G. D. Cushing School. The matter was transferred to the District Attorney?s office in Somerset County for further processing.
On September 21, 2012, Hoffman appeared before the court (Mills, J.) and entered pleas of nolo contendre to each count of Terrorizing as charged. In a statement to the court, Hoffman took full responsibility for his actions and expressed his sincere remorse for causing upset to school administrators, teachers and mostly the students and their families. He also expressed remorse to his own family and to the bar and judiciary. His pleas were accepted and he was convicted by the court on each count.
Hoffman received maximum jail sentences of 364 days? confinement for each count, to run consecutively, the entire confinement periods being suspended, with Hoffman then placed on Administrative Release for a total of two years by consecutive Administrative Release periods of one year. Bar Counsel has reported to the Court that he has confirmed with the Assistant District Attorney handling the Hoffman matters that the specific conditions of that Administrative Release have either been complied with by Hoffman or remain in effect without any violation thereof to date.
Attorney Hoffman is married and the father of two adopted boys. At the present time, he and his wife are in the process of adopting a third child who has been placed with them by the Department of Health and Human Services (DHHS). The DHHS approved the placement and prospective adoption after an investigation while this matter has been pending.
Attorney Hoffman and other witnesses presented testimony to the Court concerning the following circumstances. Hoffman suffers from several serious, chronic medical diseases, including Graves disease, insulin dependent diabetes, obsessive compulsive disorder, anxiety and, at times, depression. The Graves disease has caused Hoffman to suffer from periods of fatigue, anxiety and, at times, difficulty with concentration.
In February and March 2012, Hoffman?s symptoms associated with his Graves disease and anxiety were progressing, but he was then unaware of the severity of his symptoms. At that time, Hoffman was in treatment with several medical providers for his multiple diseases and was on multiple medications. However, he did not have one particular physician who was managing all of his medications, and he was not seeing a mental health professional for the anxiety, fatigue and depression.
Approximately two weeks after placing the two bomb threat phone calls to the elementary schools, Hoffman sought medical attention for his growing fatigue, agitation, anxiety and to confront his bizarre behaviors. He was then informed, for the first time, that he most likely was suffering from Graves Rage which is a severe condition of Graves disease. Hoffman was also suffering from severe hypothyroidism which was causing behavioral changes such as nervousness, irritability, and severe anxiety. Hoffman?s primary care provider took control of Hoffman?s medication therapy and changed it several times over the ensuing months, reportedly resulting in Hoffman feeling much healthier than he was at the time of the phone calls to the schools.
Hoffman also started mental health counseling in the late spring of 2012, prior to being charged with a crime, and continues that counseling to date. The mental health counselor testified that she diagnosed Hoffman with mood disorder due to Graves disease, with mixed features. She meets with Hoffman regularly and has noted and charted his emotional improvement and mental stability.
Approximately one month prior to the hearing before this Court, Hoffman?s thyroid condition caused him to experience what he and his counselor testified was a more severe outbreak of anxiety, depression, and feelings of lack of control than he was experiencing around March 29, 2012. However, because of the systems of protection Hoffman had in place within his family and with his medical and mental health providers, his situation was promptly stabilized, and with adjustments in his medications and a more permanent address of his thyroid situation, any harm to him or anyone else was avoided. He is now on a treatment plan where the problem he experienced is unlikely to recur.
Hoffman testified that upon recognizing that he suffered from illnesses that were affecting his emotional and mental wellbeing, he voluntarily entered into a Maine Assistance Program (MAP) contract in July 2012. According to the testimony of the MAP Director, Hoffman has been in compliance with all terms and conditions of the MAP contract since its inception and meets on a regular basis with the Director. Conditions of the MAP contract include that Hoffman faithfully follow all medical treatment and counseling protocols and medications and that he be in communication with the MAP Director in person or by telephone every two weeks, or at such other intervals deemed appropriate by the MAP Director.
As a result of the criminal charges, Hoffman?s health issues became a matter of public knowledge, particularly among the members of the bar in Franklin and Oxford Counties. Several attorneys testified that in the year and a half since March 2012 they had worked with or in opposition to Hoffman in matters before the courts, including jury trials. They all testified to recognizing Hoffman?s skill, integrity, and dedication to representing his clients in the matters in which they had participated. In fact, just the day before the hearing in this matter, Hoffman had appeared before the Lewiston District Court in a child protective matter that he was requested to join at a late date because of the failure of a relationship between a parent and the parent?s prior attorney.
Hoffman agrees that he needs an attorney to monitor his practice to reasonably assure that he is in compliance with the Maine Rules of Professional Conduct and that his clients are being served appropriately. One experienced member of the Franklin County Bar, Margot Joly, has been in communication and contact with Hoffman on at least a weekly basis to address both his caseload and his personal and health issues. She has expressed a willingness and desire to continue to offer those services to Hoffman into the future.
2. Conclusions Regarding Violation of the Rules of Professional Conduct.
The Board asserts and Attorney Hoffman agrees that he engaged in conduct unworthy of an attorney and specifically that he violated Rules 8.4 (a)(b)(c) and (d) of the Maine Rules of Professional Conduct. Rules 8.4 (a)(b)(c) and (d) specify that it is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
Hoffman?s criminal and unprofessional misconduct had a most serious effect?and caused emotional injury?to the students, parents of students, and staff of the two schools as indicated in the exhibits and testimony presented by members of the schools? staff at hearing. Hoffman?s actions also caused disruption and financial loss to the first responders involved in the March 29 events and to the school district. As part of the disposition in the criminal proceeding, Hoffman has paid restitution for the financial losses he caused.
Hoffman?s conduct also had a negative effect on his law practice and his family and was a serious concern among the bar and judiciary. Hoffman has taken reasonable steps to identify and address the causes of his actions and reiterates his intent to continue to address his medical and mental health issues in a vigilant and diligent manner with a commitment to good health and proper conduct throughout the future.
As indicated above, Hoffman agrees that his conduct of March 29 and April 5, 2012 violated Rules 8.4(a)(b)(c) and (d) of the Maine Rules of Professional Conduct. The Court finds that Hoffman violated Rules 8.4(a)(b)(c) and (d). With the violations found, the Court proceeds to consider the appropriate sanction.
3. Sanction
The parties agree that Hoffman should and must be disciplined by the Court for his serious misconduct of March 29 and April 5, 2012. The parties did not agree as to the nature and form of that discipline, and exhibits, testimony and argument was presented on that issue at the hearing.
On behalf of Hoffman, his attorney proposed that his sanction be a public reprimand coupled with a 60-day suspension from the practice of law, with the suspension being suspended in its entirety. Alternatively, Bar Counsel proposed that Hoffman receive a public reprimand with a one-year suspension period, with all but 60 days of that suspension being so suspended. As a result, Hoffman would serve a suspension from practice for a 60-day period.
The parties agree that the terms and conditions of a suspended suspension period imposed by this Order must include a condition that Attorney Margot Joly shall supervise Hoffman?s law practice on a weekly basis for at least a year with observations and management of Hoffman?s caseload, deadlines, client communications, and random file reviews. Attorney Joly shall also communicate with Hoffman privately as to Hoffman?s medical issues and conditions, as well as his family life. If Attorney Joly determines, in her discretion, that Hoffman is not well physically or mentally and/or that the practice of law is overwhelming to him at any particular time, Attorney Joly shall immediately so notify and inform the Court and Bar Counsel of her findings. Attorney Joly shall, in any event, submit a written status report to the Court and Bar Counsel each quarter during the monitoring period.
In considering the appropriate sanction, the Court is guided by Bar Rule 2(a) that provides, in pertinent part, that:
A proceeding brought against an attorney under these rules shall be an inquiry to determine the fitness of an officer of the court to continue in that capacity. The purpose of such proceeding is not punishment but protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties.
In this case the punishment for the offenses violating the criminal laws and disrupting the public order by the terrorizing actions has been imposed as the sentence in the criminal case. That sentence, among other things, requires supervision and strict compliance with the terms and conditions of Administrative Release, with possible imposition of a maximum term of incarceration if those terms and conditions are violated.
This Court?s inquiry must focus on Hoffman?s fitness as an officer of the court to continue in that capacity, and any need to protect the public and the courts from any conduct by Hoffman that demonstrates that he is unable, or is likely to be unable, to discharge properly his professional duties.
The record demonstrates that since mid-April 2012, Hoffman has proceeded aggressively to address his medical and mental health issues. He now has protocols in place to monitor his conditions and address any upsets in his conditions when they occur to avoid or minimize and harm to himself, his family, his clients, or the public. On at least one occasion, those protocols worked to quickly stabilize an upset in his condition and avoid any harm to him or others or his law practice.
Hoffman has continued to represent clients and appear in criminal, child protective, and family court proceedings, including jury trials. In those proceedings, he has performed professionally, ethically, and in the best interests of his clients. He continues to be a respected member of the bar, providing important service to the public in a geographic area that is presently significantly underserved because only a few attorneys are available to take court appointed criminal and child protective cases in northern Oxford County.
Hoffman presently has approximately forty clients with active cases, mostly criminal and child protective cases and some family matters. Such matters require regular attention to keep up with court obligations. Any period of suspension to be served would disrupt and delay those cases, impacting not only Hoffman?s clients, but others involved as parties, children, witnesses, victims, etc. Thus, any suspension to be served cannot be considered lightly, and should be imposed only if necessary to protect the public, or Hoffman?s clients, or to assure that Hoffman remedies any professional, ethical or personal issues that led to the disciplinary proceeding before he resumes practice.
Here, Hoffman appears to have successfully addressed the issues that led to the disciplinary proceeding. He is actively and with respect representing clients in his practice. He has protocols in place to address his medical, mental health and professional issues, and those protocols have been tested and they have worked. Further, in this Order the Court can impose conditions to assure monitoring, support, and professional accountability for Hoffman?s professional conduct for a considerable period of time. Thus, the suspension that the Court imposes will be suspended. At this point, the Court incorporates by reference into this order the statement it made at the conclusion of the hearing on September 27, indicating the sanction it would impose.
4. Sanction Order
Upon consideration of the parties? respective sanction recommendations and the evidence and arguments presented, the Court imposes the following sanction:
Donald G. Alexander,
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Richard D. Violette, Jr.
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Docket No.: BAR-13-2
Issued by: Supreme Judicial Court
Date: October 2, 2013
Respondent: Richard D. Violette, Jr.
Bar Number: 003042
Order: Resignation
Disposition/Conduct: N/A
ORDER of RESIGNATION
Richard D. Violette, Jr. was admitted to practice in Maine in 1984. On January 29, 2013, the Court temporarily suspended him from the further practice of law.
Pursuant to M. Bar R. 7.3(g), this final hearing is before the Court to consider Mr. Violette's voluntary resignation of August 13, 2013. The resignation was submitted by him with a supporting Affidavit. On August 28, 2013 the Board of overseers of the Bar considered this matter and unanimously recommended that the Court accept Mr. Vioiette's resignation from the Maine bar.
Therefore, following the hearing on October 2, 2013 wherein Mr. Violette appeared pro se and Assistant Bar counsel Aria Eee appeared for the Board of Overseers of the Bar, it is hereby ORDERED:
Richard D. Violette, Jr.'s resignation from the Maine bar is accepted, pursuant to M. Bar R. 7.3(g)(3). As a result, thirty (30) days from the date of this order, his name shall be removed from the list of practitioners who are admitted to practice 1aw before the courts of the State of Maine.
It is now further ordered that if Mr. Violette has still failed to file any suspension notification affidavit as required by M. Bar R. 7.3(i)(l)(B), he shall comply with that notification Rule by at least fourteen (days) before the effective date of this resignation.
As required by M. Bar R. 7.3(g)(3), Mr. Violette's supporting Affidavit dated August 13, 2013 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Mr. Violette seek reinstatement to the Maine bar, however, that Affidavit may then be made public without further order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(9)(3).
Warren M. Silver
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Alexander F. McCann, Esq.
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Docket No.: GCF# 12-349
Issued by: Grievance Commission
Date: October 9, 2013
Respondent: Alexander F. McCann, Esq.
Bar Number: 007196
Order: Reprimand
Disposition/Conduct: Failure to promptly deliver to the client funds that the client was entitled to receive upon; Failure to keep disputed funds separate from his own until the dispute was resolved; Engaging in conduct that was prejudicial to the administration of justice.
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL B OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(e)(2)(4)
On October 9, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Alexander F. McCann, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 7, 2013.
At the October 9, 2013 hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney McCann appeared with his counsel, Attorney Peter J. DeTroy. Additionally, the complainant, Thomas C. Turmelle, had been provided with a copy of the parties? proposed stipulated sanction Report in advance of the stipulated hearing. Mr. Turmelle elected not to be present at the hearing.
Prior to the hearing, the parties submitted the stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Alexander F. McCann of Gorham, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney McCann is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney McCann was admitted to the Maine Bar in 1990 and is currently registered as an active Maine attorney.
In August of 2002, McCann entered into a contingency fee agreement with Susan Turmelle (now deceased) to represent her in a Worker?s Compensation matter. Along with its other provisions, the fee agreement provided for a 30% contingency fee after expenses in the event of a successful ?claim for benefits or for entitlement to continuing benefits.? Susan Turmelle subsequently died in October of 2009 from causes unconnected to her work related injuries.
Between the signing of the fee agreement in 2002 and the death of Ms. Turmelle in 2009, McCann provided various legal services to Susan Turmelle that were not specifically covered under the terms of their fee agreement. Although McCann was entitled to payment for the legal services he rendered, he did not seek payment from Ms. Turmelle while she was alive, nor did he submit a bill for his fees to her estate after her death.
After Susan Turmelle?s death, her brother, Thomas Turmelle, hired Attorney Steven Whiting to handle Susan Turmelle?s estate at McCann?s recommendation. After learning of Ms. Turmelle?s death, in November of 2009, McCann contacted the worker?s compensation counsel for Susan Turmelle?s former employer requesting that he ?investigate the value of discontinued fringe benefits paid by the Employer.? McCann negotiated and received a settlement in the amount of $18,998.10 for Susan Turmelle?s accrued past benefits on August 19, 2010, depositing the check he received into his IOLTA account.
McCann, in accordance with the provisions of the 2002 fee agreement described above, deducted his fee of $5,585.04 representing 30% of the recovery of accrued benefits, together with his expenses of $381.30. The balance of $13,031.76 remained in McCann?s IOLTA account.
In September of 2010, McCann states that he spoke to Attorney Whiting, as attorney for the estate of Susan Turmelle, suggesting that the $13,031.76 be paid to him as compensation for the legal services he performed on behalf of Susan Turmelle between 2002 and her death in 2009. McCann advised Attorney Whiting that applying the remaining funds as attorneys? fees would not have an adverse effect upon Susan Turmelle?s estate; however, he believed that if the remaining funds were paid to the estate, the Social Security Administration would retroactively claim an overpayment of Social Security benefits, and seek reimbursement from the estate. McCann believed that Attorney Whiting agreed with his analysis, and followed up his conversation with a letter making the request.
After receiving the letter, Attorney Whiting advised McCann that he would have to obtain approval from the Personal Representative of Susan Turmelle?s estate, before he could finally agree to McCann?s request to apply the remainder of that money to his legal fees. Nevertheless, without obtaining approval from the Turmelle Estate, McCann improperly transferred the funds from his IOLTA account to his own personal account in two installments on September 17th and October 12th, 2010.
On October 25th of 2010, Attorney Whiting advised McCann that after conferring with the Personal Representative, the Turmelle Estate would not agree to McCann applying those remaining funds to his fees. At that time, and again in January of 2012, Attorney Whiting requested that McCann return of the funds to the estate.
In March of 2012 McCann wrote to Attorney Whiting reasserting his belief that payment of the funds to Susan Turmelle?s estate would result in an ?overpayment of benefits? and a claim against the estate for ?recovery of overpayments by the Social Security Administration.?
In September of 2012 Attorney Whiting advised McCann that the estate was prepared to deal with the Social Security Administration, and demanded that McCann return the money to Susan Turmelle?s estate by the end of that month. Due to McCann?s failure to return the money, on October 9, 2012 Thomas Turmelle filed a grievance complaint against McCann.
Although McCann at first contested the issue, indicating that it was a fee issue that should be referred for fee arbitration, he subsequently repaid the full amount of the disputed funds to the Estate of Susan Turmelle. McCann now agrees and acknowledges that that his overall conduct by failing to promptly return the client funds to the Estate, and then failing to hold them in his trust account once it was determined that they were subject to dispute, constituted his violations of the Maine Rules of Professional Conduct, specifically Rules 1.15(d)(e) and 8.4(a)(d).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Attorney McCann?s conduct reflects adversely upon him as a lawyer. His conduct was prejudicial to his former client?s estate, and detrimental to the administration of justice. Attorney McCann?s misconduct was in direct violation of the Maine Rules of Professional Conduct.
At the stipulated hearing, Attorney McCann made clear his regret for his actions, and extended an apology for not handling the matter differently to the panel and those in attendance at this disciplinary hearing.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances.
The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. Attorney McCann violated his duties as an officer of the court by failing to promptly turn the funds over to the Turmelle Estate when they were requested, and when it was clear that the funds were the subject of a dispute, by failing to place them and keep them in his IOLTA account. The substantial delay of more than two years in repaying the disputed money to the Turmelle Estate constitutes an actual injury that resulted from Attorney McCann?s misconduct. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
In mitigation, the Panel notes that Attorney McCann now recognizes his actions were improper under the Maine Rules of Professional Conduct, and that the Board?s regulation history reflects that Attorney McCann has no prior disciplinary record.
In sum, the evidence of misconduct supports the Panel?s findings, and Attorney McCann has agreed he did in fact violate the Maine Rules of Professional Conduct. Accordingly, the Panel concludes that its issuance of a Public Reprimand is a proper sanction to impose upon Attorney McCann under the Maine Bar Rules.
Therefore, the Panel accepts the agreement of the parties including Attorney McCann?s separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Alexander F. McCann, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
John R. Bass II, Esq. - Chair
Maurice A. Libner, Esq.
John Hutchins
Board of Overseers of the Bar v. John R. Woodman
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Docket No.: GC# 13-035
Issued by: Grievance Commission
Date: October 10, 2013
Respondent: John R. Woodman
Bar Number: 002090
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from Bar Counsel
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(2)(4)
On October 8, 2013, with due notice, panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, John R. Woodman. This disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.
At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
The Panel makes the following disposition:
Respondent John R. Woodman (Woodman) of Miami, Florida was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Woodman was admitted to the Maine bar in 1979 and he is currently subject to an administrative non-disciplinary suspension.
On October 22, 2O12 Woodman was administratively suspended by the Board for his failure to report CLE credit and his failure to register and pay the fees required by Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers? Fund For Client Protection. Woodman did not file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2O12 which notified Woodman of the consequence of his failure to file that required affidavit.
On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Woodman for to his failure to comply with the affidavit requirements. Woodman did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On May 23, 2013 a panel of the Grievance Commission reviewed Woodman's actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
On June 25, 2O13, the Board filed a Disciplinary Petition. On July 22, 2013, Woodman was served with a copy of the Disciplinary Petition by service on Ms. Mary Rosales, who claimed to be an authorized agent. Woodman failed to file an answer to the Disciplinary Petition. On October 3, 2013, after being notified of the hearing date, Woodman indicated that he had not received the Disciplinary Petition, and that he was out of the country. On October 4, 2013, after receiving and reviewing a copy of the Petition, Woodman indicated that he did not want a continuance of the hearing, and that he would accept the judgment of the Grievance Panel. To date, Woodman has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Woodman violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Woodman violated his duties to the legal system by failing to complete the annual registration requirements in 2012 and by failing to file the required notification affidavit once he was administratively suspended. Woodman's neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Woodman's continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B), is an aggravating circumstance. There are, however, several mitigating circumstances. The misconduct is not the result of dishonest or selfish motives. Woodman no longer practices law and there was no injury to any clients as a result of his misconduct. Further, Woodman has no prior disciplinary record.
Because the evidence supports a finding that Woodman did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to John R. Woodman which is now hereby issued and imposed upon his pursuant to M. Bar R. 7.1(e)(3)(c), (4).
For the Panel:
Victoria Powers, Esq. - Chair
Robert S. Hark, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. Susan M. Page
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Docket No.: GCF# 13-044
Issued by: Grievance Commission
Date: October 10, 2013
Respondent: Susan M. Page
Bar Number: 010005
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from Bar Counsel
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(2)(4)
On October 8, 2013, with due notice, panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Susan M. Page. Ther disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.
At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
The Panel makes the following disposition:
Respondent Susan M. Page (Page) of Wiscasset, Maine was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Page was admitted to the Maine bar in 2006 and she is currently subject to an administrative non-disciplinary suspension.
On October 22, 2O12 Page was administratively suspended by the Board for her failure to report CLE credit and her failure to register and pay the fees required by Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers? Fund For Client Protection. Page did not file the affidavit certifying her compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2O12 which notified Page of the consequence of her failure to file that required affidavit; that letter was returned "unclaimed."
On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Page for to her failure to comply with the affidavit requirements. Page did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On June 18, 2013 a panel of the Grievance Commission reviewed Page's actions and, based upon that review, found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 16, 2O13, the Board filed a Disciplinary Petition. On July 28, 2013, Page was personally served with a copy of the Disciplinary petition by Lincoln County Deputy Sheriff. Page failed to file an answer to the Disciplinary Petition. To date, Page has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Page violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Page violated her duties to the legal system by failing to complete the annual registration requirements in 2012 and by failing to file the required notification affidavit once she was administratively suspended. Page's neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Page's continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B), is an aggravating circumstance.
Because the evidence supports a finding that Page did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Susan M. Page which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(c), (4).
For the Panel:
Victoria Powers, Esq. - Chair
Robert S. Hark, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. Brian E. Swales
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Docket No.: GCF# 13-040
Issued by: Grievance Commission
Date: October 10, 2013
Respondent: Brian E. Swales
Bar Number: 000163
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from Bar Counsel
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(2)(4)
On October 8, 2013, with due notice, panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Brian E. Swales. This disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.
At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
The Panel makes the following disposition:
Respondent Brian E. Swales (Swales) of Houlton, Maine was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Swales was admitted to the Maine bar in 1977 and he is currently subject to an administrative non-disciplinary suspension.
On October 22, 2O12 Swales was administratively suspended by the Board for his failure to report CLE credit and his failure to register and pay the fees required by Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers? Fund For Client Protection. Swales did not file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2O12 which notified Swales of the consequence of his failure to file that required affidavit; that letter was returned "unclaimed."
On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Swales for to his failure to comply with the affidavit requirements. Swales did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On June 18, 2013 a panel of the Grievance Commission reviewed Swales' actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 16, 2O13, the Board filed a Disciplinary Petition. On July 22, 2013, Swales was personally served with a copy of the Disciplinary petition by Aroostook County Deputy Sheriff. Swales failed to file an answer to the Disciplinary Petition. To date, Swales has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Swales violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Swales violated his duties to the legal system by failing to complete the annual registration requirements in 2012 and by failing to file the required notification affidavit once he was administratively suspended. Swales' neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Swales' continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B), is an aggravating circumstance.
Because the evidence supports a finding that Swales did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Brian E. Swales which is now hereby issued and imposed upon his pursuant to M. Bar R. 7.1(e)(3)(c), (4).
For the Panel:
Victoria Powers, Esq. - Chair
Robert S. Hark, Esq.
Marjorie M. Medd
Board of Overseers of the Bar v. Carolyn M. Asquith
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Docket No.: BAR-12-3
Issued by: Maine Supreme Judicial Court
Date: October 17, 2013
Respondent: Carolyn M. Asquith
Bar Number: 009426
Order: Order and Decision
Disposition/Conduct: Order Discharge of Receiver
Order Discharging Receiver Appointed to Protect Clients' Interest M. Bar R. 7.3(f)
THIS MATTER having been heard by the undersigned Justice of the Court, upon motion of the Receiver herein for an order discharging David R. Weiss as Receiver of the law practice of suspended attorney Carolyn M. Asquith, the Court makes the following findings of facts and conclusions of law:
THEREFORE, it is hereby ORDERED as follows:
Jon D. Levy, Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Keri J. Marshall, Esq.
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Docket No.: BAR-13-3
Issued by: Supreme Judicial Court
Date: October 16, 2013
Respondent: Keri J. Marshall, Esq.
Bar Number: 003593
Order: Reprimand
Disposition/Conduct: Responsibilities Regarding Nonlawyer Assistants; Failure to Respond to Bar Counsel
ORDER OF RECIPROCAL DISCIPLINE M. Bar R. 7.3(h)
The Defendant, Attorney Keri J. Marshall, was admitted to practice law in 1987 in both the State of New Hampshire and in the State of Maine. She has an active sole practice in New Hampshire and is currently registered with the Maine Board of Overseers of the Bar as a non-resident active attorney.
On January 22, 2013 the Board received certified confirmation from the New Hampshire Supreme Court Professional Conduct Committee (PCC) that on November 27, 2012 the PCC had issued a Public Censure with Conditions upon Attorney Marshall. That Public Censure was based upon Attorney Marshall?s violations of N. H. R. Prof. Conduct 5.3(a)(b); 8.1(b); and 8.4(a).
Attorney Marshall?s professional conduct violations involved her failure to properly supervise her support staff such that improper and false filings were submitted in a contested divorce proceeding, followed by Attorney Marshall?s initial failure to properly comply with the New Hampshire Attorney Discipline Office?s requests in its investigation of the opposing party?s grievance against her.
Attorney Marshall?s misconduct would constitute analogous violations of M. R. Prof. Conduct 5.3(a)(b)(Responsibilities Regarding Nonlawyer Assistants); 8.1(b)(Bar Admission and Disciplinary Matters); and 8.4(a)(Misconduct).
The PCC?s Public Censure imposed several practice management conditions and requirements for Attorney Marshall to comply with under the supervision and monitoring of an experienced New Hampshire attorney. Bar Counsel Scott Davis informed the Court that he has confirmed the following current information with the General Counsel of New Hampshire?s Attorney Discipline Office: 1.) Attorney Marshall?s probationary period with conditions has been completed to the satisfaction of the New Hampshire Discipline Office; and 2.) As a result, on August 20, 2013 the PCC closed its matter concerning Attorney Marshall.
Accordingly, the Court finds that reciprocal discipline in Maine is warranted and so orders that Attorney Keri J. Marshall is now reprimanded in Maine for her violation of the above-referenced Maine Rules of Professional Conduct.
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jacob Apuzzo, Esq.
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Docket No.: GCF# 13-050
Issued by: Grievance Commission
Date: September 30, 2013
Respondent: Jacob Apuzzo, Esq.
Bar Number: 002635
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority
FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1
On September 26, 2013 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the respondent, Jacob Apuzzo. This disciplinary proceeding was commenced by a petition pursuant to M. Bar. R. 7(1)(e) filed by the Board of Overseers of the Bar on May 21 , 2003.
The Board was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Apuzzo did not appear at the hearing, nor did he respond to telephone messages. The Board Clerk received no message from him that he was delayed or prevented from attending. The hearing was conducted in his absence. The panel received a formal proffer from Assistant Bar Counsel in the presence of the witness, Susan Adams, Maine Board of Overseers Registration/CLE Coordinator, who was duly noticed as a witness ten days before the hearing. Pre-marked Board Exhibits 1 through 9, also noticed to Attorney Apuzzo ten days before the hearing were offered by Assistant Bar Counsel and admitted into evidence.
The disciplinary petition charges violations of Maine Bar Rule 6(a) for failure to complete CLE requirements and to register as an attorney in a timely fashion in 2012, of Maine Bar Rule 7.3(i)(2) for failure to file a notice and affidavit with the Board of Overseers of the Bar following his administrative suspension, and of Maine Rule of Professional Conduct 8.1(b) for failure to respond to Bar Counsel's letters of February l and February 27, 2013 .
Jacob Apuzzo was, until the imposition of an administrative suspension by the Board, an attorney admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules. On October 22, 2012, Attorney Apuzzo was administratively suspended by the Board due to his failure to fife his annual registration statement, pay the required fee and complete the proper credit hours of continuing legal education as required by Maine Bar Rules 6(a)(1), 10(a)(1) and 12(a)(1), respectively. He also did not thereafter file the affidavit certifying his compliance with the suspension notification requirements of Maine Bar Rule 7.3(i)(2)(A) and (B).
On November 29, 2012, Bar Counsel notified Attorney Apuzzo by certified mail of the consequence of his failure to file the required affidavit. The letter was sent to the only address provided by Attorney Apuzzo, was returned as ?unc1aimed? on December 26, 2012.
Bar Counsel filed a sua sponte grievance complaint with the Board of Overseers on January 29, 2013, and requested by letter dated February 1, 2013 that Attorney Apuzzo respond to the grievance in writing by February 22, 2013. No response was received. Assistant Bar Counsel- sent a follow-up letter dated February 21 , 2013 voluntarily extending the rime for response to March 29. None was received.
The petition before the panel was sent for service in hand to Attorney Apuzzo. Contact by the York County Sheriff?s Office resulted in the first communication from him received by the Board.
Attorney Apuzzo?s ?To all whom it may concern? letter dated June 11, 2013 averred that he provided written notice to the Board on or before August 31, 2012 of his withdrawal from Maine practice. It further stated that he provided the affidavit required by Maine Bar Rule 7.3(i)(2) with the notice. "On the assumption that Bar counsel has represented that the notice and affidavit were not received," he enclosed a "replacement affidavit." setting forth the required information. The "replacement affidavit" is dated June 5, 2013 and bears the signature of Attorney Apuzzo. The jurat states that it was signed before Robert Mongue, Esq., although no date for Attorney Mongue?s signature appears.
Assistant Bar Counsel?s proffer represented that the Board received no notice or affidavit other than the June 11, 2013 letter enclosing the June 5, 2013 replacement affidavit. In his letter dated June 29, 2013 to Assistant Bar counsel Kelley appearing on the record as part of his answer, Attorney Apuzzo urges us to find that no violation of any Rule occurred because, " [While] I can say with absolute certainty that the notice was sent[,] [t]he Board of Overseers? staff can not say with absolute certainty that it was not received."
Attorney Apuzzo invites us to find that he satisfied the timely filing requirement of Maine Bar Rule 7.3(i)(12)(B) by mailing the notice and affidavit "on or before August 31, 2012." We decline to do so. There is no principled reason to depart from the rule that ?filing? means ?receipt? by the entity/agency where the filing is required to occur.
Attorney Apuzzo may be conflating his filing obligations with the common law "mailbox rule" which permits the presumption that physical delivery of a document occurred in the ordinary time after proper mailing. See, generally, Maine Medical Center v. United States, 675 F.3d 110 (1st Cir. 2012) (tax appeal denied where notice not timely sent). Judge Stahl observed that, at a minimum, the party asserting receipt or a mailed document must offer testimony regarding actual mailing and some additional corroborating evidence. Accord, Laird v. Norton Healthcare, Inc., 442 Fed.Appx 194 (6th Cir. 2011). Attorney Apuzzo?s submissions to the Board offered nothing beyond the bald assertion that he sent the required notice and affidavit. Even if the mailbox rule were to apply (which it does not), it is not invoked by the facts of this case.
Attorney Apuzzo's June 11, 2013 letter also said, ?Since 8/31/2012 I have been absent from my current mailing address for periods of time? without any further elaboration. (Attorney Apuzzo's current mailing address in Kennebunk shown on his June 11 letter is the same as was used on all letters sent by Bar Counsel.) This is scant justification for the Respondent?s complete silence between September 18, 2012 and June 11, 2013.
Assistant Bar Counsel asks that the panel issue a public reprimand. Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge their professional responsibilities properly. Among the factors to be considered are: the duties violated, the actual or potential injury caused by the lawyer?s misconduct, the lawyer?s mental state, and the existence of any aggravating or mitigating circumstances. See, ABA Standards for Imposing Lawyer Sanctions, 1991 {ABA Standards). See also Maine Bar Rule 7.1(e)(3)(C).
The first factor to be considered is to determine what duties have been breached. Attorney Apuzzo failed to complete the annual registration requirements in 2012 for which he was administratively suspended, he failed to file the required notice and affidavit, and he failed to respond to Bar Counsel's February correspondence. We believe that the first two failures caused minor injury to the legal system, especially in light of his subsequent (albeit six-plus months tardy) submission of the required notice and affidavit to the Board. The failure to respond to Bar Counsel caused moderate injury to the legal system. There were repeated but futile efforts to elicit some response from Attorney Apuzzo up until his letter of June 11, 2013, including the engagement of the York County Sheriff?s Office (at additional cost to the Board). Professional responsibilities include responsibilities to the requirements of the profession. Ignoring requests and stern warnings from Bar Counsel evidences an attitude that disrespects both the legal system and the legal profession.
Neither of Attorney Apuzzo's responses expressed regret or offered any explanation for his failures, or asserted his mental or emotional commitment to the profession.
Attorney Apuzzo's submission of the ?replacement affidavit? in June 2013 could be considered a mitigating factor but for his concomitant failure to pay the related late fees in connection with its filing. His unexplained failure to appear before the disciplinary hearing, as well as the brusque and combative tone of his June 11 and June 29 letters are aggravating factors.
The panel concludes that a public reprimand is the appropriate sanction for these violations of Bar Rules, which is herebv issued to Attorney Jacob Apuzzo.
Peter C. Fessenden, Esq. Acting Chair
Martica S. Douglas, Esq.
Michael Knowles, Lay Member
Board of Overseers of the Bar v. Jeremey A. Miller, Esq.
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Docket No.: GCF# 11-130
Issued by: Grievance Commission
Date: October 28, 2013
Respondent: Jeremey A. Miller, Esq.
Bar Number: 004398
Order: Reprimand
Disposition/Conduct: Diligence; Failure to Communicate; Failure to supervise non-lawyer assistants
STIPULATED REPORT of FINDINGS AND ORDER of Panel D of the GRIEVANCE COMMISSION M. Bar. R. 7.1(e)(2)(4)
On October 28, 2013, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E) concerning alleged misconduct by Respondent Jeremey A. Miller, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 4, 2013 (GCF No. 11-130).
At the hearing, Attorney Miller was represented by Attorney Phillip Johnson and the Board was represented by Assistant Bar Counsel Aria Eee. Just prior to the disciplinary proceeding, the parties negotiated a stipulated proposed order regarding GCF 11-130 for the Grievance Commission Panel?s review and consideration. The Complainant in GCF No. 11-130, Attorney Stev Parker, was in attendance at the hearing and made comments to the Panel concerning the parties? proposed Report which he received just prior to the hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Jeremey A. Miller, Esq. (Miller) of Concord, NH has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Miller was admitted to the Maine Bar in November of 2008 and primarily practices law in New Hampshire. Attorney Miller has his own law firm, J. Miller & Associates, PLLC located in Concord, New Hampshire.
On April 14, 2011, Attorney Stev Parker filed a grievance complaint against Miller. At the time of the filing, Attorney Miller was also a partner in Legal Helpers Debt Resolution (LHDR), a national debt resolution law firm. During the time period in question, Attorney Miller was the only Maine lawyer affiliated with LHDR. Among other things, Attorney Parker?s complaint alleged that he had experienced difficulty determining the extent of LHDR/Miller?s representation in various Maine collection matters.
In that regard, Attorney Parker identified five (5) cases he had been handling in which Attorney Miller/LHDR represented the opposing parties. Attorney Parker reported that he was unable to engage in any discourse with Attorney Miller concerning settlement offers, proposed motions, court scheduling orders or responses to discovery.
Attorney Parker explained that he repeatedly tried to contact Attorney Miller after Attorney Miller filed answers in some litigation matters, but that Attorney Miller did not respond to Attorney Parker?s communications. Attorney Parker also referenced that in certain cases in which Attorney Miller either did not appear at scheduled hearings and/or failed to respond to discovery, orders unfavorable to Attorney Miller?s clients were issued by the respective courts.
Through counsel, Attorney Miller filed a response to the grievance complaint. In that response, Attorney Miller acknowledged the complex issues presented by his partnership in LHDR and the resultant problems it caused. While Attorney Miller largely denied any professional misconduct he did explain how his work with LHDR evolved and acknowledged some of the resultant lapses in client representation.
In 2009, Attorney Miller entered into a partnership with LHDR that was separate from Attorney Miller?s own law firm. Attorney Miller had no management role in the LHDR partnership, but he now agrees that his participation as a partner contributed to a systematic and continuous presence of LHDR in Maine through advertising that raised concerns under M.R. Prof. Conduct 5.5(b)(1). Attorney Miller also recognized that he had neglected some litigation cases, including the ?Parker? cases as referenced above. Attorney Miller had assigned those cases to an associate attorney, but failed to adequately supervise the associate in violation of MRPC 5.1(b). While prospective clients did not physically meet with any LHDR employees, in October of 2010 Attorney Miller began making himself personally available to clients who requested him to do so.
As a result of the events contributed to by his inadequate supervision of associates, Attorney Miller instituted new office policies and procedures to ensure that all clients would be competently represented. Attorney Miller has acknowledged that his lack of direct involvement with clients and his admitted neglect and failure to supervise an associate attorney resulted in violations of the Maine Rules of Professional Conduct.
The Panel notes that much of the misconduct that occurred in this grievance matter was the result of the case management practices adopted by the managing attorneys of LHDR. Furthermore, it appears that LDHR did not generally inform Attorney Miller of important events occurring in Maine concerning LDHR clients. Attorney Miller did receive a related ?warning? letter from the Maine Bureau of Consumer Credit Protection, but he failed to appreciate the import of that letter as it regarded the consumers assigned to his caseload.
Additionally, Attorney Miller was unaware and LHDR did not inform him that the State of Illinois had issued a Cease and Desist Order against LHDR in Illinois. Subsequently, a June 2011 Cease and Desist Order was issued in Maine, and upon being advised of it, Attorney Miller declined to represent any new clients of LHDR. Attorney Miller has continued to represent or has completed his representation of existing clients from the LHDR partnership, but he has not accepted any new cases. Attorney Miller also declined to participate in new cases involving any other debt management law firm. While not accepting new cases from such firms, Attorney Miller continues to fulfill obligations to those individuals with whom he already has an attorney-client relationship.
The Panel finds that Attorney Miller?s detachment from clients was a direct result of LHDR?s practice model, but that his conduct violated M. R. Prof. Conduct 1.3 (diligence) and 1.4 (communication). In his capacity as a partner of LHDR, Attorney Miller had an additional duty under M. R. Prof. Conduct 5.1 and 5.3 to ensure that subordinate lawyers and the non-lawyer assistants associated with LHDR as subcontractors were adequately supervised so that their conduct did not violate any provisions of the Maine Rules of Professional Conduct.
Since then, LHDR has voluntarily settled the issues raised by the State of Maine concerning LHDR?s representation of Maine residents. That agreement, the ?Assurance of Discontinuance,? was executed on December 6, 2012. The Panel received a copy of that agreement into evidence at the stipulated hearing.
The Panel notes that no bar grievance complaint against Attorney Miller has been filed by any clients of Attorney Miller or LHDR. Further, Attorney Miller understands that LHDR has paid some restitution to some aggrieved clients as a result of the advocacy of the Maine Bureau of Consumer Credit Protection.
Attorney Miller had no involvement in the design of LHDR?s business model or LHDR?s practices and procedures. However, he was a partner in the LHDR firm and was responsible for taking reasonable steps to ensure that the firm had in place measures giving reasonable assurance that, with respect to Maine clients, the conduct of firm lawyers, staff and independent contractors conformed to the Maine Rules of Professional Conduct. Attorney Miller had the same obligations with respect to the lawyers and staff of his own law firm. Miller failed to fulfill those obligations and, accordingly, some clients were harmed. As a result, the Panel issues a reprimand to Attorney Miller and cautions him to carefully assess potential associations with any other law firms, particularly so with regard to the use of non-lawyer assistants and subcontractors. Attorney Miller is also reprimanded for his failure to engage in appropriate supervision of client matters. He is directed to do so in the future.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Miller?s above-outlined failures, some of his clients were not properly served by the representation. The Panel notes that Attorney Miller has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Miller expressed his remorse for his violations of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence supports a finding and Attorney Miller agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a Reprimand in GCF No. 11-130 serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Miller?s separately executed waivers of any objection to this Report and waiver of appeals. The Panel concludes that the appropriate disposition of this case is a Public Reprimand to Jeremey A. Miller, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
William E. Baghdoyan, Esq., Chair
James A. McKenna III, Esq.
Emilie van Eeghen
Board of Overseers of the Bar v. Charles R. Bean, Esq.
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Docket No.: BAR-13-9
Issued by: Supreme Judicial Court
Date: October 29, 2013
Respondent: Charles R. Bean, Esq.
Bar Number: 002805
Order: Resignation
Disposition/Conduct: N/A
ORDER of RESIGNATION M. Bar R. 7.3(g)
Attorney Charles R. Bean was admitted to practice in Maine in1983. For the last several years Attorney Bean has maintained a solo practice focusing primarily on bankruptcy, real estate and probate matters.
Pursuant to M. Bar R. 7.3(g), the Court conducted a final hearing to consider Attorney Bean?s voluntary resignation request of August 27, 2013. The resignation was submitted by him with a supporting Affidavit. On August 28, 2013 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Attorney Bean?s resignation from the Maine bar.
Therefore, following the hearing on October 29, 2013 wherein Attorney Bean appeared pro se and Assistant Bar Counsel Aria Eee appeared for the Board of Overseers of the Bar, it is hereby ORDERED:
Attorney Charles R. Bean?s resignation from the Maine bar is accepted, pursuant to M. Bar R. 7.3(g)(3). As a result, thirty (30) days from the date of this Order, his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine.
It is now further ordered that Attorney Bean shall file a notification affidavit as required by M. Bar R. 7.3(i)(1)(B), within thirty (30) days after the effective date of this resignation.
As required by M. Bar R. 7.3(g)(3), Attorney Bean?s supporting Affidavit of August 27, 2013 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Attorney Bean seek reinstatement to the Maine bar, however, that Affidavit may then be made public without further order of the Court. Additionally, Attorney Bean shall reimburse the Lawyer?s Fund for Client Protection for all present and future claims paid on his behalf; cooperate with Bar Counsel and/or a Receiver in the wind down of his practice; and return client files as requested by Bar Counsel and/or any Receiver.
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Joe Lewis, Esq.
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Docket No.: GCF# 13-074
Issued by: Grievance Commission
Date: October 29, 2013
Respondent: Joe Lewis, Esq.
Bar Number: 004800
Order: Reprimand
Disposition/Conduct: Failure to deposit and maintain legal fees that have been paid in advance into a client trust account until fees were earned.
STIPULATED REPORT of FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(e)(2)(4)
On October 29, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Joe Lewis, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 20, 2013.
At the October 29, 2013 hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Lewis appeared with his counsel, Peter J. DeTroy, Esq. Prior to that hearing, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. As the underlying complaint was brought by Bar Counsel sua sponte, no complainant was present at the hearing. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following findings and disposition:
Respondent Joe Lewis of Portland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Lewis is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Lewis was admitted to the Maine Bar in 2011 and is currently registered as an active Maine attorney.
On November 28, 2012, Lewis contacted the Board of Overseers by email indicating that he had ?likely? engaged in conduct that would constitute violation of ?at least one? of the Maine Bar Rules, and that he wanted to begin the process of self-reporting.
On February 11, 2013, Lewis, through Counsel, self-reported that he had six instances where he received cash payments from clients, and failed to promptly deposit those funds into his Trust (IOLTA) Account.
On November 1, 2011, Lewis was paid $1,000 in cash as a retainer by Christopher Geisinger with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.
Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.
According to Lewis, his actual fees exceeded the $1,000 retainer; however, he never sought further payment from Geisinger beyond the initial retainer, and the entire $1,000 was earned.
On November 25, 2011 Lewis was paid $1,200 in cash as a retainer by Juli Larrabee along with a signed acceptance by her of his ?fee sheet?, and its terms. Juli Larrabee paid an additional $600 in cash toward the retainer within a few weeks of her first payment.
Lewis admits that despite the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the $1,800 in cash that he received from Juli Larrabee into his Client Trust (IOLTA) Account.
According to Lewis, his actual fees exceeded the $1,800 in cash payments, and additional fees were ultimately billed by him and paid by Juli Larrabee.
On February 16, 2012, Lewis was paid $2,500 in cash as a retainer by Stephen Larrabee with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.
Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.
According to Lewis, his actual fees were slightly less than the $2,500 retainer; however, by agreement of his client the credit balance was applied to the outstanding balance owed on the account of his wife, Juli Larrabee.
On July 17, 2012, Lewis was paid $2,500 in cash as a retainer by Ashly Brown with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.
Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.
According to Lewis, his actual fees exceeded the $2,500 retainer; however, he ?wrote off? the outstanding balance, and did not seek further payment from Ashly Brown beyond the initial retainer of $2,500.
On September 12, 2012, Lewis was paid $2,500 in cash as a retainer by Iuliana Voinea with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.
Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account.
According to Lewis, On November 26, 2012, two days prior to instituting his self-report to the Board of Overseers of the Bar, he deposited $1,450 representing the unearned portion of Ms. Voinea?s retainer into his Client Trust (IOLTA) Account.
On November 7, 2012, Lewis was paid $1,500 in cash as a retainer by Sandra Hutchins with a fee agreement that specified that the money would be placed in his client trust account and that his fees would be billed monthly against the retainer.
Lewis admits that despite the provisions of his fee agreement and the requirements of the Maine Rules of Professional Conduct 1.15(a)(b), that he failed to deposit the cash he received into his Client Trust (IOLTA) Account until approximately three weeks later on November 26, 2012, two days prior to instituting his self-report to the Board of Overseers of the Bar.
As a result of the foregoing, Lewis has admitted receiving a total of $11,800 in cash representing client funds subject to his obligation to keep those funds separate, and to deposit them in a Client Trust (IOLTA) Account. His failure and/or delay in doing so constitutes a violation of the Maine Rules of Professional Conduct (M.R.P.C.) 1.15(b)(1). Accordingly, Attorney Lewis agrees that his conduct constituted a violation of M.R.P.C. 1.15(b)(1).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. In 2012 Attorney Lewis received on six occasions client funds subject to his obligation to be held in a separate trust account until they were earned. His failure to do so was a violation of the Maine Code of Professional Responsibility.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances.
The first factor to be considered for sanctions under the ABA Standards is to determine the duty that was breached. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C). Attorney Lewis violated his duties as an attorney by failing to deposit his clients? funds in the trust account as required by his fee agreements and by the M.R.P.C. While it appears that the client funds were ultimately credited to his client?s accounts, and that no client suffered actual economic harm as a result of Lewis? failure, Lewis? violations of his agreements with his clients, as well as his obligations under the Maine Rules of Professional Responsibility, were significant and cannot be characterized as ?minor?. Mitigation does exist because Lewis recognized his errors, self-reported to the Board, and the Board?s regulation history reflects that Attorney Lewis has no prior disciplinary record. Finally, at the stipulated hearing, Attorney Lewis made clear his remorse for his actions related to these matters.
In sum, the evidence of misconduct supports the Panel?s findings, and Attorney Lewis agrees he did in fact violate the Maine Rules of Professional Conduct on multiple occasions. Although it does not appear that any client suffered actual injury, there was the potential for financial injury caused by Attorney Lewis's misconduct. In mitigation, Attorney Lewis self-reported his misconduct, and he has no prior misconduct on his record. Accordingly, the Panel concludes that a public reprimand is a proper sanction to impose upon Attorney Lewis.
Therefore, the Panel accepts the agreement of the parties including Attorney Lewis?s separately executed waiver of the right to petition for a review of the action of this Panel in imposing the agreed upon sanction pursuant to Rule 7.2(a). The Panel concludes that the appropriate disposition of this case is the issuance of a Public Reprimand to Joe Lewis, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C), (4).
Martha C. Gaythwaite, Esq. Chair
Peter C. Fessenden, Esq.
Richard P. Dana
Board of Overseers of the Bar v. Jeremey A. Miller, Esq.
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Docket No.: GCF# 13-225
Issued by: Grievance Commission
Date: November 8, 2013
Respondent: Jeremey A. Miller, Esq.
Bar Number: 004398
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Probable cause found for further proceedings before the Court
REPORT OF FINDING OF PROBABLE CAUSE FOR FILING OF INFORMATION WITH COURT - GRIEVANCE COMMISSION PANEL D
Pursuant to a Stipulated Waiver of Grievance Commission Review dated October 4, 2013, a disciplinary hearing open to the public was scheduled for October 28, 2013 at l:00 p.m., with proper notice provided to all parties. The hearing was held before Grievance Panel D, consisting of James McKenna, Esq., Emilie van Eeghen, and William Baghdoyan, Esq. Panel Chair, at the Board of Overseers of the Bar in Augusta, Maine. The Board was represented by Assistant Bar Counsel Aria Eee. Attorney Miller was represented by Attorney Phillip Johnson.
Based upon the admitted exhibits and testimony presented at the hearing, pursuant to M. Bar R. 7.1, the panel concludes that there is probable cause for the Respondent's suspension or disbarment and hereby directs Bar Counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 7.2(b). The panel finds that there is probable cause based both upon the Respondent's failure to properly follow through with the filing of Bankruptcy documents for his client Philip Clement, which resulted in Mr. Clement's first bankruptcy petition being dismissed, and upon the fact that misrepresentations regarding actual "wet" signatures of the bankruptcy client were made to the Bankruptcy Court by the Respondent.
William E. Baghdoyan, Esq., Chair
James A. McKenna III, Eq.
Emilie van Eeghan
Board of Overseers of the Bar v. Franklin A. Poe
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Docket No.: BAR-08-06
Issued by: Supreme Judicial Court
Date: April 6, 2013
Respondent: Franklin A. Poe
Bar Number: 002305
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment re: Franklin A. Poe's Law Practice
ORDER for Appointment of Temporary Receiver M. Bar R. 7.3(f)(1)
By Order dated February 9, 2009, this Court disbarred Franklin A. Poe from the practice of law in Maine. After Petition filed by the Board of Overseers pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, William W. Logan, Esq. and David B. Soule, Esq. are appointed the Temporary Receivers of Franklin A. Poe's law practice. With the cooperation of Mr. Poe (or if necessary, with the assistance of Lincoln County Sheriff's Department) Attorneys Logan and Soule shall:
Attorneys Logan and Soule shall submit to the Court a record of hours worked and disbursements made in the event the Court allows for payment of legal fees at the State court appointment rate. The assets of Mr. Poe shall be the first choice for source of payment to the Receivers, although ultimately, they may serve in a pro bono capacity. Otherwise Attorneys Logan and Soule may be compensated from another source ordered by the Court.
Attorneys Logan and Soule shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
Attorneys Logan and Soule so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f). Furthermore, Attorneys Logan and Soule may be engaged by any former client of Mr. Poe provided that they inform any such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receivers employment by the client. Attorneys Logan and Soule are subject to all Bar Rules, including M. Bar R. 3.4 on conflicts of interest. However, a client's retention of the Receivers as successor counsel is not a per se conflict of interest solely by reason of Attorneys Logan and Soule's appointment by this Order.
Attorneys Logan and Soule shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law. Within sixty days of this Order, the Receivers shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
Robert W. Clifford, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Michael C. Lyons
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Docket No.: GCF# 13-045
Issued by: Grievance Commission
Date: November 4, 2013
Respondent: Michael C. Lyons
Bar Number: 009282
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority
REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(2)(4)
On October 29, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Michael C. Lyons. This disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.
At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
The Panel makes the following disposition:
Respondent Michael C. Lyons (Lyons) of Biddeford, Maine was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of professional conduct.
Lyons was admitted to the Maine bar in 2002 and he is currently subject to an administrative non-disciplinary suspension.
On October 22, 2012 Lyons was administratively suspended by the Board for his failure to report CLE credit and his failure to register and pay the fees required by Maine Bar Rules 6(a)(1), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers' Fund For Client Protection. Lyons did not file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2012 which notified Lyons of the consequence of his failure to file that required affidavit.
On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Lyons for to his failure to comply with the affidavit requirements. Lyons did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On June 25, 2013 a panel of the Grievance Commission reviewed Lyons' actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 16, 2013, the Board filed a Disciplinary Petition. On August 8, 2013, Lyons was served with a copy of the Disciplinary Petition by the Cobb County, Georgia Deputy Sheriff. Lyons failed to file an answer to the Disciplinary Petition. To date, Lyons has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Lyons violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Lyons violated his duties to the legal system by failing to complete the annual registration requirements in 2012 and by failing to file the required notification affidavit once he was administratively suspended. Lyons' neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Lyons' continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B), and his prior disciplinary record are aggravating circumstances. There are, however, several mitigating circumstances. The misconduct is not the result of dishonest or selfish motives. There was no injury to any clients as a result of his misconduct, and Lyons has no prior disciplinary record.
Because the evidence supports a finding that Lyons did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Michael C. Lyons which is now hereby issued and imposed upon his pursuant to M. Bar R. 7.1(e)(3)(c), (a).
For the Panel:
Martha C. Gaythwaite, Esq., Chair
Peter Fessenden, Esq.
Richard P. Dana
Board of Overseers of the Bar v. Heather J. Smith
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Docket No.: GCF# 13-041
Issued by: Grievance Commission
Date: November 5, 2013
Respondent: Heather J. Smith
Bar Number: 004082
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority
REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(2)(4)
On October 29, 2013, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning alleged misconduct by the Respondent, Heather J. Smith. This disciplinary proceeding was commenced by the filing of a Grievance Complaint by the Board of Overseers of the Bar (the Board) on January 29, 2013.
At the hearing, the Respondent was not present and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
The Panel makes the following disposition:
Respondent Heather J. Smith (Smith) of Woodstock, Georgia was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of professional conduct.
Smith was admitted to the Maine bar in 2007 and she is currently subject to an administrative non-disciplinary suspension.
On October 22, 2012 Smith was administratively suspended by the Board for her failure to report CLE credit and her failure to register and pay the fees required by Maine Bar Rules 6(a)(l), 10(a) and 12, as well as Rule 3(a) of Maine's Rules For Lawyers' Fund For Client Protection. Smith did not file the affidavit certifying her compliance with Maine Bar Rule 7.3(i)(2) as required within 30 days after that suspension date. The Board sent a certified letter on November 29, 2012 which notified Smith of the consequence of her failure to file that required affidavit.
On January 29, 2013, Bar Counsel docketed a sua sponte grievance complaint against Smith for to her failure to comply with the affidavit requirements. Smith did not respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b). On June 25, 2013 a panel of the Grievance Commission reviewed Smith's actions and, based upon that review, found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules.
On July 17, 2013, the Board filed a Disciplinary Petition. On August 8, 2013, Smith was served with a copy of the Disciplinary Petition. Smith failed to file an answer to the Disciplinary Petition. To date, Smith has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(A)(B).
Smith violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather is the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 2.1(e)(3)(C).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Smith violated her duties to the legal system by failing to complete the annual registration requirements in 2012 and, by failing to file the required notification affidavit once she was administratively suspended. Smith's neglect caused minor injury to the legal system. The Maine Supreme Judicial court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Smith's continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(A)(B) is an aggravating circumstance. There are, however, mitigating circumstances such as the fact that the misconduct is not the result of dishonest or selfish motives, and the fact that Smith has no prior disciplinary record.
Because the evidence supports a finding that Smith did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Heather J. Smith which is now hereby issued and imposed upon his pursuant to M. Bar R. 7.1(e)(3)(C), (a).
For the Panel:
Martha C. Gaythwaite, Esq., Chair
Peter C. Fessenden, Esq.
Richard P. Dana
Board of Overseers of the Bar v. Kristen E.P. Kaleo
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Docket No.: GCF# 13-047
Issued by: Grievance Commission
Date: November 20, 2013
Respondent: Kristen E.P. Kaleo
Bar Number: 004172
Order: Dismissal with Warning
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority.
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL B OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(E)(2)(4)
On November 20, 2013, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Kristen E. P. Kaleo. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 16, 2013.
At the November 20, 2013 hearing, the Board was represented by Assistant Bar Counsel Aria Eee and Ms. Kaleo, upon receiving proper notice, elected to not appear in person. With the approval of the Panel Chair, she did participate by telephone that was audible by everyone in attendance at that hearing.
Prior to that hearing, the parties had submitted the stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Kristen E. P. Kaleo of Crofton, Maryland was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Ms. Kaleo was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Ms. Kaleo was admitted to the Maine Bar in 2007 and is currently administratively suspended from the practice of law.
Effective October 22, 2012 Ms. Kaleo was administratively suspended by the Board of Overseers due to her failure to comply with the annual registration requirement of M. Bar R. 6(a), and the continuing legal education credit hours requirement of M. Bar R. 12(a).
A grievance complaint was docketed sua sponte on January 29, 2013 by Bar Counsel as a result of Ms. Kaleo?s subsequent failure to file the notice affidavit required by Maine Bar Rule 7.3(i)(2) following her summary administrative suspension.
Ms. Kaleo failed to submit any response to either of Bar Counsel?s letters of February 1 or March 6, 2013 requesting her comments and response to the grievance complaint. Ms. Kaleo?s failure to respond to the inquiries of Bar Counsel was in violation of M. R. Prof. Conduct 8.1(b).
Ms. Kaleo remains suspended from practice in Maine for having failed to file the Maine Bar Rule 7.3(i)(2) affidavit, or to ever address the administrative rule failure that had caused her suspension to be imposed.
Ms. Kaleo has moved from the State of Maine, and has not been in active practice for some time. She acknowledges that she has failed to comply with the Bar Rules, and explains that she was undergoing extreme personal distress at the time of the violations, and that it is her intention to withdraw from the practice of law at the completion of this grievance proceeding. Ms. Kaleo has now submitted the Affidavit required by Maine Bar Rule 7.3(i)(2), and has paid the necessary fees for her reinstatement.
Ms. Kaleo?s conduct resulted in her violations of the Maine Bar 7.3(i)(2)(A)(B), and Maine Rules of Professional Conduct Rule 8.1(b).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Ms. Kaleo?s conduct was in direct violation of the Maine Rules of Professional Conduct.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances.
The first factor to be considered for sanctions under the ABA Standards for Imposing Lawyer Sanctions is to determine the duty that was breached. Ms. Kaleo violated her duties as an officer of the court by failing to file the Affidavit required by Maine Bar Rule 7.3(i)(2) within 30 days of her suspension from the practice of law, or to respond to Bar Counsel?s inquiry as required by Maine Bar Rule 8.1. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 7.1(e)(3)(B).
In mitigation, the Panel notes that Ms. Kaleo was going through a period of extreme personal distress at the time of her failure to file the required affidavit, and that she now recognizes her actions were improper under the Maine Bar Rules and Maine Rules of Professional Conduct. The Panel also notes that the Board?s regulation history reflects that Ms. Kaleo has no prior disciplinary record.
In sum, the evidence of misconduct supports the Panel?s findings, and Ms. Kaleo agrees she did in fact violate the Maine Bar Rules. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Ms. Kaleo. Accordingly, the Panel concludes that a dismissal with a warning is a proper sanction to impose upon Ms. Kaleo.
Therefore, the Panel accepts the agreement of the parties including Ms. Kaleo?s separately executed waiver of the right to object to the warning or its terms. The Panel concludes that the appropriate disposition of this case is the issuance of a Dismissal with a Warning to Kristen E. P. Kaleo, which is now hereby issued and imposed upon her pursuant to M. Bar R. 7.1(e)(3)(B), (4).
John R. Bass II, Esq. - Chair
Maurice A. Libner, Esq.
Kenneth L. Roberts
Board of Overseers of the Bar v. Charles F. Perrault
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Docket No.: BAR-13-15
Issued by: Supreme Judicial Court
Date: November 21, 2013
Respondent: Charles F. Perrault
Bar Number: 003330
Order: Suspended Suspension Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
ORDER
On September 12, 2013 the Board of Overseers of the Bar petitioned this Court for Reciprocal Discipline against the above-named attorney. Attached to the Board?s Petition for Reciprocal Discipline was a certified copy of the Massachusetts Supreme Judicial Court?s August 26, 2013 Order suspending Charles Perrault.
On October 10, 2013, this Court issued an Order and Notice to show cause why identical discipline should not be imposed in Maine. By certified mail, the Board served Mr. Perrault with a copy of that Order. After an opportunity to respond, Mr. Perrault filed no reply to the Court?s Order and Notice. Thereafter Mr. Perrault notified Bar Counsel that he did not object to the imposition of identical discipline in Maine.
Upon consideration of the Board?s Petition for Reciprocal Discipline and Mr. Perrault?s lack of objection to identical discipline in Maine, it is hereby ORDERED as follows:
Andrew M. Mead, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Bruce Michael Cormier
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Docket No.: BAR-13-12
Issued by: Supreme Judicial Court
Date: November 19, 2013
Respondent: Bruce Michael Cormier
Bar Number: 008518
Order: Suspension Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
ORDER Of SUSPENSION
On August 6, 2013 the Board of Overseers of the Bar petitioned this Court for Reciprocal Discipline against the above-named (suspended) attorney. Attached to the Board?s Petition for Reciprocal Discipline was a certified copy of the Massachusetts Supreme Judicial Court?s July 15, 2013 Order suspending Bruce Michael Cormier.
On October 30, 2013 Mr. Cormier confirmed his receipt of the Board?s letter providing him with a copy of this Court?s September 19, 2013 Order and Notice to show cause why identical discipline should not be imposed in Maine. Within their discussion, Mr. Cormier notified Bar Counsel that he did not object to the imposition of identical discipline in Maine. Based upon his report to Bar Counsel, it is this Court?s understanding that Mr. Cormier has no open Maine cases.
Upon consideration of the Board?s Petition for Reciprocal Discipline and Mr. Cormier?s lack of objection to identical suspension in Maine, it is hereby ORDERED as follows:
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Daniel W. Bates, Esq.
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Docket No.: BAR-12-11
Issued by: Supreme Judicial Court
Date: November 21, 2013
Respondent: Daniel W. Bates, Esq.
Bar Number: 001597
Order: Order and Decision
Disposition/Conduct: Order Discharge of Receiver
ORDER DISCHARGE OF RECEIVER
Pending before the Court is the Board of Overseer?s Petition for Discharge and Receiver?s Final Report filed on October 1, 2013. For good cause shown and without objection, the Board?s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers shall act as primary file caretaker of (Deceased) Attorney Bates?s unclaimed client files. Accordingly, the Board shall tend Bates?s unclaimed client files in a manner consistent with the Maine Rules of Professional Conduct. To assist the Board in complying with those duties, Attorney Dawson shall ensure that payment is made to the Board for its expenses related to the file storage/retention and destruction. Thereafter, Attorney Dawson shall close out the operating account and remit any remaining funds to the Bates Estate. Attorney Dawson shall also close out the IOLTA account and forward the unclaimed unknown fund balance to the Maine Bar Foundation as a charitable contribution.
It is hereby ORDERED, that Andrew T. Dawson, Esq. is discharged as Receiver of the law practice of Daniel W. Bates, Esq.
In that regard, the Court acknowledges the generosity, extensive efforts, and valuable service Attorney Dawson has provided as Receiver and extends its sincere appreciation for his numerous hours of work in this process.
The Maine Bar is indeed privileged to have such dedicated and selfless practitioners among its members. Attorney Dawson is commended for his pro bono work in this arduous matter.
Andrew M. Mead, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. William B. Cote, Esq.
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Docket No.: BAR 13-20
Issued by: Maine Supreme Judicial Court
Date: December 3, 2013
Respondent: William B. Cote, Esq.
Bar Number: 002892
Order: Temporary Suspension
Disposition/Conduct: Disabled Attorney
INTERIM ORDER OF SUSPENSION M. Bar R. 7.3(e)(2)(B)
By filing dated November 7, 2013 the Board of Overseers of the Bar petitioned this Court for an immediate Order suspending William B. Cote from the practice of law in the State of Maine. Included with the Board?s Petition were related exhibits and an Affidavit of Assistant Bar Counsel.
For good cause shown by the Board, Attorney Cote appears to be incapacitated by reason of addiction to drugs or intoxicants. As a result, he has committed violations of the Maine Rules of Professional Conduct, thereby serving as a threat to his clients, members of the public and to the administration of justice. See M. R. of Prof. Conduct 1.3; 1.4(a)(3); 3.4(c) and 8.4(a)(d). The Court finds that until Attorney Cote undergoes successful treatment and is actively compliant with a MAP contract his continued practice of law poses a substantial threat of irreparable harm to his clients and the public.
Accordingly, pursuant to M. Bar R. 7.3(e)(2)(B), this Court ORDERS that William B. Cote is temporarily suspended from the practice of law in Maine until further Order of this Court. The Court further ORDERS that a Proxy shall be appointed to manage Attorney Cote?s law office so that his client?s interests will be protected.
Finally, the Court ORDERS that the Affidavit of Assistant Bar Counsel with related exhibits in this matter be sealed and impounded pending further Order of this Court.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR 13.20
Issued by: Maine Supreme Judicial Court
Date: December 4, 2013
Respondent: William B. Cote
Bar Number: 002892
Order: Receiver Appointment
Disposition/Conduct: Proxy Appointment for William B. Cote
Order for Appointment of Proxy M. Bar R. 7.3(f)(1)
Upon the November 7 and 21, 2013 requests for Appointment of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Andrucki & Associates is appointed as the Proxy of William B. Cote?s law practice. As such Andrucki & Associates shall have the sole authority to:
As a service to the bar, the Law Firm of Andrucki & Associates acknowledge that they shall serve as Proxy on a pro bono basis, although if there are sufficient assets (including receivables) from Mr. Cote?s law practice, Andrucki & Associates may be reimbursed from those assets. The Proxy shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, the Proxy shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Cote and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Cote, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
The law firm of Andrucki & Associates shall act as Proxy until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Andrucki & Associates so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Andrucki & Associates may be engaged by any former client of Attorney Cote?s provided that the Proxy informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Proxy?s employment by the client.
The Proxy is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client?s retention of the Proxy as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Andrucki & Associates shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within sixty (60) days of this Order, the Proxy shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Assistant Bar Counsel Aria Eee, Esq.
Justice Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Timothy M. Concannon, Esq.
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Docket No.: BAR-13-24
Issued by: Maine Supreme Judicial Court
Date: December 2, 2013
Respondent: Timothy M. Concannon, Esq.
Bar Number: 004591
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, the Board of Overseers of the Bar (the Board) is appointed the Limited Receiver of Timothy M. Concannon?s law practice. Pursuant to this Order, the Board shall:
The Board shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Once Attorney Concannon is served with this Order or otherwise becomes aware of it, he shall not tamper with or otherwise change the files (either hard copy or electronic copy). Attorney Concannon shall not remove anything from the files. He shall otherwise cooperate with any request by the Board to assist with the delivery and disposition of his client files.
Dated: December 2, 2013
Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Timothy M. Concannon
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Docket No.: BAR-13-24
Issued by: Maine Supreme Judicial Court
Date: December 9, 2013
Respondent: Timothy M. Concannon
Bar Number: 004951
Order: Suspension
Disposition/Conduct: Disabled Attorney
ORDER OF SUSPENSION M. Bar R. 7.3(e)(2)(B)
By filing dated November 25, 2013 the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order suspending Timothy M. Concannon for disability-related reasons from the practice of law in the State of Maine. Included with the Board?s Petition was an Affidavit of Assistant Bar Counsel.
For good cause shown by the Board, Timothy M. Concannon appears to be a disabled attorney; as a result, he has committed violations of the Maine Rules of Professional Conduct, thereby serving as a threat to clients, the public and to the administration of justice. The Court finds that Attorney Concannon?s actions constitute violations of M. R. of Prof. Conduct 1.1; 1.2; 1.3; 1.4; 1.15(f); 8.1(b) and 8.4(a)(c)(d).
Accordingly, this Court ORDERS that Timothy M. Concannon be suspended from the practice of law in Maine until further Order of this Court.
The Court further ORDERS that the Affidavit of Assistant Bar Counsel in this matter be sealed and impounded pending further Order of this Court.
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jonathan H. Steinman
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Docket No.: GCF# 13-039
Issued by: Grievance Commission
Date: December 4, 2013
Respondent: Jonathan H. Steinman
Bar Number: 007659
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Probable cause found for further proceedings before the Court
REPORT OF FINDING OF PROBABLE CAUSE FOR FILING OF INFORMATION WITH COURT
Pursuant to a Disciplinary Petition dated August 7, 2013, a disciplinary hearing open to the public was scheduled for November 20, 2013 with proper notice provided to all parties. The members of Grievance Panel B were present at the Cumberland County Superior Court in Portland, Maine. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee. The Respondent, Jonathan Steinman, did not appear.
Prior to the scheduled hearing, Mr. Steinman failed to file an Answer to the Petition. As a result, the alleged facts of misconduct (failure to file a Notice Affidavit and failure to respond to Bar Counsel?s investigation) are deemed admitted by Mr. Steinman. Therefore, the Panel conducted a hearing only as to sanctions resulting from that misconduct. See M. Bar R. 7.1.
Pursuant to M. Bar R. 7.1(e)(3)(C), and based upon the Disciplinary Petition, exhibits admitted at the hearing and Bar Counsel?s subsequent notification to the Clerk that counsel for Mr. Steinman has now agreed to negotiate a final resolution of this matter, the Panel concludes that an appropriate disposition is a referral to the Supreme Judicial Court for further proceedings. The Panel understands that the parties intend to propose Resignation by Mr. Steinman as the final resolution of this matter. In that regard, the Maine Supreme Judicial Court is the only tribunal that can accept such resolution. See M. Bar R, 7.3(g). Accordingly, the Panel finds probable cause for a referral to the Supreme Court and hereby directs Bar Counsel to commence a Court disciplinary action by filing an Information pursuant to M. Bar R. 7.2(b).
John R. Bass II, Esq., Chair
Maurice A. Libner, Esq.
Kenneth L. Roberts
Board of Overseers of the Bar v. William L. Dawson, Jr., Esq.
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Docket No.: BAR-13-23
Issued by: Maine Supreme Judicial Court
Date: Decmeber 16, 2013
Respondent: William L. Dawson, Jr., Esq.
Bar Number: 006887
Order: Consent Order
Disposition/Conduct: Conditions imposed on right to practice.
CONSENT ORDER
After conference of counsel and the Court, with the Board of Overseers of the Bar represented by Bar Counsel J. Scott Davis, and William L. Dawson represented by Peter DeTroy and J.D. Hadiaris, and upon consideration, the following is ORDERED, by prior consent of the parties.
- Attorney Dawson will not act under a Power of Attorney for any individuals;
- Attorney Dawson will not manage the finances or otherwise control any client funds;
- Attorney Dawson agrees to cooperate with an independent audit, by an auditor selected by the Board, of Attorney Dawson?s checking, savings and bank accounts, and of all matters in which Attorney Dawson has acted in a fiduciary capacity, including IOLTA accounts, at any time within the last three calendar years; and
- Attorney Dawson shall comply with such order issued by the Court for payment of that audit; and
- Attorney Dawson shall otherwise cooperate with Bar Counsel?s investigation of this grievance complaint matter.
a. Funds related to a special needs trust;
b. Funds from dividends related to an estate matter (Waldo County Probate Court Docket No. 2005-170), pending distribution to devisee(s); and
c. Funds related to another estate matter (Waldo County Probate Court Docket No. 2010-37), pending distribution.
Attorney Dawson agrees to, within 14 days of the date of this Consent Order, transfer all of the above-described respective funds contained in his client trust account to the owners and/or custodian(s) of the said funds, in compliance with this Order.
This Consent Order is issued without prejudice to either party to argue their respective positions as part of the aforementioned grievance proceeding. If Attorney Dawson complies with this Consent Order, the Board?s Petition for Temporary Suspension will be deferred pending the processing of GCF #13-039. Nothing shall preclude Bar Counsel from taking further action as appropriate, upon the discovery or disclosure of additional information warranting any such action.
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jay H. Otis
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Docket No.: BAR-13-7
Issued by: Maine Supreme Judicial Court
Date: December 23, 2013
Respondent: Jay H. Otis
Bar Number: 002941
Order: Suspension
Disposition/Conduct: Competence; Diligence; Communication; Unreasonable/Excessive fee; Safekeeping Property, Trust Accounts and Interest on Trust Accounts; Conduct involving Dishonesty, Fraud, Deceit and Misrepresentation; Conduct prejudicial to the Administration of Justice
ORDER of SUSPENSION
M. Bar R. 7.2
The Board of Overseers of the Bar initiated the above attorney disciplinary action on March 20, 2013 by the filing of a Petition for Temporary Suspension pursuant to M. Bar R. 7.2(c). On March 26, 2013 this Court granted the Board?s Petition and suspended Otis from the practice of law in Maine until further Order of the Court. Thereafter, by Order dated April 4, 2013 the Court appointed Attorneys Roberta Winchell and Barbara Cardone Receivers of the Otis law office.
Following Mr. Otis?s suspension, the Board received additional complaints against Mr. Otis and pursuant to the Maine Bar Rules, the Board filed disciplinary Informations for further proceedings before the Court. Mr. Otis responded with timely Answers to the Board?s Informations and trial in this matter was set for December 5 and 6, 2013.
Just prior to the beginning of trial on December 5, 2013, the parties notified the Court that they were in agreement to a proposed order providing for stipulated findings and sanction. The Court agreed to hear the parties? recitation of findings of fact and a proposed resolution of this matter. Within their agreement, the parties notified the Court that they would waive any right to argue the few disputed facts and instead, allow the Court, in its sole discretion, to decide those facts based upon the record and the information adduced during the stipulated hearing on December 5. The Court further informed the parties that it would consider but not be bound by the parties? proposal. The parties acknowledged and consented to the Court?s plan for resolution of this matter.
At the December 5, 2013 hearing, the Board was represented by Assistant Bar Counsel Aria Eee and Mr. Otis appeared pro se. Complainants Jill Kraemer and Attorneys Nathaniel Putnam and Jay Schofield appeared and were given the opportunity to address the Court. Also present at the hearing were Receiver Roberta Winchell, Esq. and her firm?s paralegal/bookkeeper, Jackie Fleming. Within her remarks, Attorney Winchell explained to the Court her firm?s difficult experience in conducting the wind down of Mr. Otis?s law office.
Jay Otis was admitted to the Maine bar in 1983. From his admission until the present, Otis has engaged in private practice in Bangor and Brewer, Maine. The Court notes that except for the instant action, Otis has not otherwise been disciplined for attorney misconduct.
Of concern to the Court, however, is the state of Mr. Otis?s law office when it was Ordered into Receivership. By the end of March 2013, Otis?s operating account contained a zero balance and he had several unpaid bills, including office rent, computer/technical support, bookkeeping services, malpractice insurance, professional subscriptions and other debts. Of specific and serious concern is the fact that Mr. Otis allowed his malpractice insurance to lapse as of December 2012. He did so, even while continuing to take owner draws from the trust and operating accounts.
Within this bar disciplinary matter, the Court has reviewed and considered the pleadings, the exhibits and the parties? proposal. Accordingly, the Court finds and Otis agrees that he engaged in multiple, serious violations of the Maine Rules of Professional Conduct. Since the Board of Overseers? pleadings outlined five (5) separate counts of alleged misconduct, the Court will separately address each matter and the findings associated with Mr. Otis?s misconduct.
(Jill Kraemer complaint)
In July 2010 Jill Kraemer hired Mr. Otis to bring a divorce action in the Bangor District Court. During the course of that matter, Ms. Kraemer sold the marital home and remitted proceeds of that sale to Otis so he could safeguard them in his trust account. The divorce action was settled in October 2011 and in February 2012 the District Court issued a consented to Divorce Judgment.
Despite the obligation to do so, Otis did not notify Kraemer of the finalization of her divorce and the resulting Judgment. His failure to do so constituted a violation of M. R. Prof. Conduct 1.3 and 1.4. Kraemer eventually learned of the Judgment and contacted Otis about his lack of communication. Over the course of the next several months she also repeatedly contacted Otis regarding his delayed or non-payment of marital debts that the Divorce Judgment directed to be paid.
While Otis did not respond to Kraemer?s inquiries, he did eventually pay most of the marital debt from the funds held in his trust account. One debt he had still failed to pay by the time of Ms. Kraemer?s complaint filing was a sizeable sales tax debt she owed to the State of Rhode Island. Otis?s neglect and continued retention of Kraemer?s money constituted violations of M. R. Prof. Conduct 1.3; 1.4; 1.15(b)(2)(iii)(iv); 1.16(d) and 8.4(a)(c)(d). As is evident from her email communications to Otis, Kraemer was dependent on Otis and she explicitly trusted him to resolve her legal and tax matters.
Ms. Kraemer complained against Mr. Otis in April 2012. Despite the opportunity and obligation to do so, Mr. Otis failed to respond to that complaint and failed to forward Ms. Kraemer?s file to Bar Counsel, as he was directed to do. Mr. Otis?s failures in that regard violated M.R. Prof. Conduct 8.3, 1.15(f) and 1.16(d).
On January 3, 2013, a Grievance Commission Panel convened a public disciplinary hearing concerning the Kraemer complaint matter. Otis did not appear for the hearing but after it had concluded he did meet with Assistant Bar Counsel Eee. During that meeting, Otis stated that he had Kraemer?s $11,500.00 and he would attempt to resolve the tax debt or immediately return the money to Kraemer. Following the disciplinary hearing, the Grievance Commission found probable cause for the suspension or disbarment of Otis. Although he had earlier promised to remit Kraemer?s funds including any additional monies she lost in forfeited tax returns, Otis had not done so by the time the Board petitioned for his temporary suspension.
After this Court suspended Otis and appointed Receivers to wind down his practice, the Receivers then successfully negotiated a resolution of Kraemer?s tax debt to Rhode Island. They did so even though Ms. Kraemer?s client trust funds (in Otis?s trust account) were lacking by approximately $300.00 toward the tax debt owed. The Board attributes that deficiency to Mr. Otis?s payment of his own final legal bill rather than prioritizing payment of all Kraemer debt obligations. Additionally, when the Receivers secured the Otis law office, Ms. Kraemer?s client file was not contained within the law office. Her file remains missing and unaccounted for.
(Amanda Wilbur complaint)
A second divorce client of Otis?s, Amanda Wilbur, complained to the Board in December 2012. By then, Wilbur?s legal matter had concluded with a dismissed appeal, an outcome she did not authorize or timely become aware of. As is clear in her grievance complaint filing, Otis failed to pursue the appeal or obtain Wilbur?s consent to dismissal of that appeal. Subsequently, he failed to respond to Wilbur?s repeated requests for information and action. Otis also failed to safeguard and return Wilbur?s client file. Although Otis had the opportunity to do so, he did not respond to Wilbur?s bar complaint or her fee arbitration petition. He did appear at the arbitration hearing in August 2013 after which the Commission awarded no further fees to Otis and no refund of fees to Ms. Wilbur. Otis?s failures with regard to the Wilbur representation constituted violations of M. R. Prof. Conduct 1.3, 1.4; 1.15(f); 1.16(d) and 8.4(a)(c)(d).
(Complaint by Attorneys Devoe, Putnam, Tucker and Schofield)
On December 31, 2012 and pursuant to M. R. Prof. Conduct 8.3, (Mandatory Reporting) Attorneys William Devoe, Nathaniel Putnam, Richard Tucker and Gerald Schofield jointly filed a grievance complaint against Mr. Otis. The attorneys served as opposing and successor counsel in a then pending Penobscot County Probate court matter. In their complaint to the Board, the attorneys reported Otis?s failure to diligently represent his client, ?L.S.? (an estate beneficiary) failure to communicate with counsel and failure to forward L.S.?s client file to successor counsel, despite multiple requests for that file. Mr. Otis does not dispute his colleagues? report and further acknowledges a lack of adequate notice to his client, L. S. regarding the final probate hearing held in April 2012. Despite the opportunity to respond to the attorneys? mandated report, Otis did not file an answer to their complaint. He now agrees that the above-outlined failures constituted violations of the professional conduct rules. Those rules include M. R. Prof. Conduct 1.3; 1.4; 1.5(a); 1.15(f); 1.16(d) and 8.4(a)(d).
(Denise Dietrich complaint)
On April 9, 2013, Denise Dietrich filed a complaint against Mr. Otis alleging his neglect of her divorce case. Ms. Dietrich retained Mr. Otis in 2011 and approximately a year later, she began experiencing pronounced difficulties with his lack of information to her. Specifically, the Court finds and Otis agrees that he failed to respond to many of Ms. Dietrich?s inquiries, failed to notify her of important deadlines, delayed or failed to notify her of at least one court date and failed to forward her file to successor counsel.
Because of Otis?s failure to finalize and file Ms. Dietrich?s discovery responses, the District Court levied a $2,000.00 monetary sanction against Ms. Dietrich. That sanction was understandably upsetting to Ms. Dietrich and though she attempted to have it set aside, she was unsuccessful in that regard. Upon her discharge of Mr. Otis, he failed to return her file and failed to refund approximately $2,000.00 she had then recently paid toward replenishment of her advanced fee.
Additionally, the Fee Arbitration Commission awarded a $4,200.00 refund which Mr. Otis had not yet paid as of the disciplinary hearing date. The Court finds that Otis?s failures as outlined above constituted violations of M. R. Prof. Conduct 1.3; 1.4; 1.5(a); 1.15(b)(2)(iii)(iv); 1.16(d) and 8.4(a)(d).
(sua sponte complaint)
On October 30, 2013, Bar Counsel docketed a sua sponte complaint against Mr. Otis related to his service as a Personal Representative (PR) in a Penobscot County Probate Court matter. Specifically, in December 2010, Otis was appointed successor PR following the Probate Court?s removal of the original PR, for alleged conversion of Estate funds. After his appointment, Otis did not notify the Estate?s financial institutions of his appointment.
According to Attorney Winchell (now the court-appointed Special Administrator of that Estate) the former PR continued to make withdrawals from the Estate?s bank accounts and was able to do so as a consequence of Otis?s failure to notify the banks and otherwise protect the assets of the Estate. Despite the Probate Court?s mandate, Mr. Otis failed to file an accounting of the Estate assets or of the work he performed as PR. Moreover, Mr. Otis did not respond to the multiple requests for information by other lawyers involved in the proceeding. As a consequence of his neglect, the Probate Court removed Mr. Otis as PR on April 22, 2013.
In addition to neglecting his duties as a PR, Mr. Otis failed to safeguard the Estate?s file and it was not contained within his law office when the Receiver inventoried the files of that office. The Court finds that Otis?s serious neglect of his fiduciary duties to the Estate and its beneficiaries constituted violations of at least M. R. Prof. Conduct 1.1; 1.3; 1.4; 1.15 and 8.4(a)(c)(d).
In sum, during the representation of his various clients and his service as a Personal Representative, Otis ultimately failed to provide the professional services those clients and litigants relied upon him to deliver. Indeed, Otis failed to timely communicate, failed to safeguard client property, failed to adequately notify or respond to clients, courts and his colleagues in the bar. Otis?s failures constituted multiple violations of the Maine Rules of Professional Conduct and the Court does not view his conduct lightly.
Within his own practice management, it is also apparent that Mr. Otis failed to properly utilize his client trust accounts, such that some accounts revealed shortages that should not have occurred. Overall, Otis?s record keeping system and perceived bank balances were not supported by other records, bank statements and the review audit performed by the Receiver. While the Board has not charged a claim of theft, it is clear from the Receiver?s October 2013 report and the Board?s exhibits that Otis?s accounting practices were improper and largely indecipherable.
Even by the December hearing date, the Receiver was still not able to explain how some of Mr. Otis?s accounts devolved into the state they were in. The Receiver reported her concerns about Otis?s use of ?double books? and potentially unearned advanced payments. At the disciplinary hearing, Mr. Otis expressed his intention to the Court that he would ensure all clients are made whole, if there are any remaining trust balances to refund to those clients. The Board and Receiver then informed the Court that some monies still exist in the trust account, though it is difficult for the Receiver to allot how those funds should be divided among the clients who are seeking a refund of their legal fees.
All of these financial concerns are very troubling to the Court. Prior to his filing any reinstatement Petition Mr. Otis will need to provide proof that he has engaged in appropriate client trust account and law office management education.
Finally, the Court is further concerned by Mr. Otis?s actions immediately after his practice was ordered into Receivership. As noted, the court issued an Order for on April 4, 2013. Mr. Otis received actual notice of that Order on that same day, the Receivers met with and informed Otis that they were securing the law office and he could thereafter access it only with their assistance. Nevertheless, Otis returned to the office ?after hours? and without permission or authority to do so. He was observed exiting the office building by another tenant, Ms. Scott, who saw Mr. Otis hastily return to his parked vehicle. At approximately 6:10 am the next day, Ms. Scott once again observed Mr. Otis at the office building. She passed him on the stairs on his way out of the building. He was carrying a banker?s box with him. As she made her way into the building, Ms. Scott observed that Mr. Otis?s truck was backed up to the steps of the building entrance. She further observed that Mr. Otis?s truck was so full he was unable to close the truck cap.
Attorney Winchell explained her concerns about those events when addressing the Court at the disciplinary hearing. She reported her recollection that on April 4, while meeting with Mr. Otis, his laptop was in the office, there were files on the side of his desk and there were bankers? boxes on the floor near a bookcase. After learning the next morning about Otis?s return to the office building Attorney Winchell had the locks to the law office changed. Upon her observation of the office, she noted that files were no longer on the desk, the laptop and the bankers? boxes were missing.
At the disciplinary hearing, Mr. Otis acknowledged that he had returned to the law office building after he was no longer authorized to do so. He reported to the Court that he did not remove law office files or property; instead he claims to have removed personal items from an unlocked closet near, but not inside, his former law office. Mr. Otis explained his belief that the Court?s Order only extended to his law office, not the building itself.
The Court finds that Mr. Otis knew or should have known that he was not permitted to return to the law office building. Likewise, he knew or should have known he was unauthorized to remove any items from that building without further Court Order or the permission and assistance of the Receivers. The Court?s Orders for Receiver and Temporary Suspension divested Mr. Otis of his right to have access to the law office building, including any rooms inside, or associated with the law office. His return to the law office building after hours renders his explanation specious. Furthermore, his removal of anything from the law office premises was contrary to the letter and the spirit of the Court?s Orders.
Mr. Otis?s numerous violations of the Maine Rules of Professional Conduct are very serious and the Court must consider an appropriate sanction, including long-term suspension or disbarment. The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. While Mr. Otis has practiced for nearly thirty years without any prior discipline, his complete failure to properly discharge his professional duties is a disturbing example of a long-term practitioner.
The Court?s Order is intended to address the significant and compound problems associated with Otis?s law practice. Despite the opportunity to explain to the Court how and why he engaged in such errant behavior and serious neglect of his professional duties, Otis showed little to no insight and was therefore, unable to adequately respond to the Court?s inquiry about the misconduct.
Accordingly, the Court imposes upon Mr. Otis a four (4) year suspension from practice. In doing so, the Court approves the parties? agreement and ORDERS the following sanction and conditions in this matter:
Justice Jon D. Levy
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. John D. Griffin
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Docket No.: BAR-13-4
Issued by: Maine Supreme Judicial Court
Date: January 8, 2014
Respondent: John D. Griffin
Bar Number: 001528
Order: Order and Decision
Disposition/Conduct: Order Approving Second Status Report of Limited Receiver
ORDER APPROVING SECOND STATUS REPORT OF LIMITED RECEIVER
Pending before the Court is the Limited Receiver's Second Formal Status Report filed on December 30, 2013. After review, the Second Formal Status Report is ACCEPTED as follows:
It is hereby ORDERED that Attorney Jon S. Oxman's appointment as Limited Receiver shall continue, and his ongoing plan concerning the closing and/or disposal of the files of Attorney John D. Griffin remains APPROVED, with the following amendment to the Court?s September 23, 2013 Order Approving Limited Receiver?s Report:
It is further ORDERED that the Board of Overseers of the Bar shall remain as the primary file caretaker of John D. Griffin's unclaimed client files. Accordingly, after the Limited Receiver has identified Attorney Griffin's unclaimed client files, the files shall be turned over to the Board of Overseers of the Bar. Because Attorney Griffin informed his clients of his intent to close his office effective December 21, 2006 by publishing notices in the Lewiston Sun-Journal on December 9, 11 and 13, 2006, the Board shall destroy all remaining unclaimed client files on or after December 21, 2014. However, the Board shall retain and tend those items of intrinsic value (original wills and deeds) as long as they retain their value.
The Court acknowledges the enormous effort and valuable service Attorney Oxman has already provided as Limited Receiver, thanks him for his work, and extends its sincere appreciation for his willingness to serve as a Receiver. The Maine Bar is fortunate to have such generous and dedicated practitioners within its ranks.
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Kirk Y. Griffin
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Docket No.: BAR-13-18
Issued by: Supreme Judicial Court
Date: January 13, 2014
Respondent: Kirk Y. Griffin
Bar Number: 009485
Order: Suspension Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
ORDER OF SUSPENSION
This Court has received a certified copy of the September 13, 2013 Order of Immediate Temporary Suspension issued by the Commonwealth of Massachusetts? Supreme Judicial Court. The Order suspended Kirk Y. Griffin for his violations of the Massachusetts Rules of Professional Conduct. Specifically those violations include Trust Account improprieties, commingling funds, failure to return client funds and failure to comply with Bar Counsel?s requests for Trust Account records.
In this reciprocal discipline action filed by the Maine Board of Overseers of the Bar, Mr. Griffin has filed no response to this Court?s October 17, 2013, Order and Notice. That Order provided Mr. Griffin an opportunity to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts.
Upon consideration of the Board?s Petition for Reciprocal Discipline and Mr. Griffin?s lack of objection to an identical suspension in Maine, it is hereby ORDERED as follows:
Jon D. Levy , Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott D. Giese, Esq.
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Docket No.: BAR-13-17
Issued by: Maine Supreme Judicial Court
Date: January 13, 2014
Respondent: Scott D. Giese, Esq.
Bar Number: 004294
Order: Suspension
Disposition/Conduct: Scope of Representation; Diligence; Communication; Safekeeping of Client Funds/Property; Contact with Represented Person; Personal Conflict; Meritorious Claims; Conduct Prejudicial to the Administration of Justice
M. Bar R. 7.2
The Board of Overseers of the Bar initiated the above attorney disciplinary action on September 25, 2013 by the filing of a Stipulated Waiver of Grievance Commission Proceedings. Thereafter, on November 5, 2013, the Board filed a Disciplinary Information pursuant to M. Bar R. 7.2(b)(1). Although Attorney Giese did not file an Answer to the Information, during the pre-trial conference he notified the Court that he was largely in agreement to a negotiated resolution of this disciplinary matter. Following a pre-trial status conference, the Court scheduled final hearing for January 6, 2014.
At that final hearing, the Board was represented by Assistant Bar Counsel Aria Eee and Attorney Giese appeared pro se. Additionally, some of those who had filed complaints against Attorney Giese (Ingrid Horvat and Attorney Amy Fairfield) appeared and were given the opportunity to address the Court. Former client Tammy Mutombo lives out of state and was unable to appear for this hearing. While another former client (Geoffrey Reese) also desired to appear, his current incarceration prevented that appearance.
Scott D. Giese was admitted to the Maine bar in 2008. From his admission until the present, Giese has engaged in private practice in Biddeford, Maine. He is not licensed in any other jurisdiction and the Court notes that except for the instant action, Giese has not otherwise been disciplined for attorney misconduct.
Following a review of the pleadings and the parties? negotiated proposal, the Court finds and Giese agrees that he engaged in multiple violations of the Maine Rules of Professional Conduct. Those violations spanned five (5) separate counts of misconduct as detailed below.
(GCF# 13-201 Ingrid Horvat)
On April 8, 2013, former client, Ingrid Horvat (Horvat) filed a grievance complaint against Giese. In her complaint, Horvat primarily alleged that Giese agreed to a highly contested parental rights order without her consent to do so. Within her complaint, Ms. Horvat expressed her distress that Attorney Giese failed to adequately communicate and failed to protect her interests. The Court finds that Giese?s failure to explicitly obtain Ms. Horvat?s authority to settle the parental rights case and his continued retention of Horvat?s money and corporate file constituted violations of the Professional Conduct rules. Based upon Bar Counsel?s subsequent investigation it is also clear that Giese was paid for, but did not perform any work on a separate legal matter involving Horvat?s small business. Ms. Horvat filed a Fee Arbitration Petition and Attorney Giese agrees she is due a refund. The Fee matter has not yet been scheduled for hearing.
As is evident from her and successor counsel?s communications to Giese, Ms. Horvat was dependent on Giese and she relied on him to properly resolve her legal matters. Giese?s failures with regard to the Horvat representation constituted violations of M. R. Prof. Conduct 1.2 [scope of representation]; 1.3 [diligence]; 1.4 [communication]; 1.15(b)(2)(iii)(iv); 1.16(d) [safekeeping client funds/property]; and 8.4(a)(c)(d) [other misconduct].
(GCF# 13-188/Amy L. Fairfield)
On May 29, 2013 Attorney Amy L. Fairfield filed a grievance complaint against Attorney Giese. Fairfield?s complaint reported Giese?s unauthorized contact with Fairfield?s family law client. The Court finds and Giese agrees that his contact with that represented person violated M. R. Prof. Conduct 4.2(a) [contact with represented person]. Within her complaint, Fairfield also detailed Giese?s personal conflict, which occurred during the representation of his client in the underlying family law matter. Giese acknowledges and the Court finds that his conflict constituted a violation of M. R. Prof. Conduct 1.7(a)(2) [lawyer?s personal conflict].
(GCF# 13-221 Diane M. Gonneville and Katreena Guiod)
A related grievance complaint was filed on July 3, 2013, by Diane M. Gonneville and Katreena L. Gioud. The substance of that complaint regarded Attorney Giese?s filing of an unmeritorious lawsuit on behalf of the same family law client with whom he had a personal conflict. After Gonneville and Gioud hired counsel to defend them in the action, the York County Superior Court granted their Motion and dismissed the case. While Giese initially denied the complaint allegations, he now agrees that it was improper for him to have filed the suit against Gonneville and Gioud. The Court finds that Giese?s filing constituted violations of M. R. Prof. Conduct 2.1 [Advisor]; 3.1 [meritorious claims] and 8.4(d) [conduct prejudicial to administration of justice].
(GCF# 13-274 Tammy Mutombo)
Former client Tammy Mutombo (Mutombo) filed a grievance complaint and related Fee Arbitration Petition against Attorney Giese on August 30, 2013. Within her complaint Mutombo alleged that Giese neglected her estate matter, charged an excessive fee and failed to communicate. His actions in that regard were violative of M. R. Prof. Conduct 1.3 [diligence]; 1.4(a) [communication] and 1.5(a) [excessive fee]. Despite the requirement to do so, Giese failed to answer the Mutombo grievance complaint, in violation of M. R. Prof. Conduct 8.1(b). Giese did file a response to the Fee Petition and that matter remains pending.
(GCF# 13-266 Geoffrey D. Reese)
On August 31, 2013, former client Geoffrey D. Reese (Reese) filed a grievance complaint against Attorney Giese. In his complaint, Reese described Giese?s failure to prosecute Reese?s criminal appeal then pending in the Maine Supreme Judicial Court. Based upon Giese?s failure, the Law Court dismissed Reese?s appeal. Subsequent to that dismissal, the Court appointed new counsel and reinstated Reese?s appeal. Despite the opportunity to do so, Giese did not file a response to the Reese grievance complaint. Although Giese denies intentionally abandoning Reese?s appeal, he does now acknowledge that he failed to explicitly obtain Reese?s approval to file no brief with the Law Court. That failure was violative of M. R. Prof. Conduct 1.2 [scope of representation]; 1.3 [diligence]; 1.4(a) [communication] and 8.4(a)(d) [other misconduct]. Giese?s failure to answer Reese?s grievance complaint constituted a second violation of M. R. Prof. Conduct 8.1(b) [disciplinary matters]. At the hearing, Giese agreed that he will mail a copy of Reese?s client file either to Reese directly or to Reese?s mother.
The Court finds that Attorney Giese?s multiple violations of the Maine Rules of Professional Conduct are serious and troubling. They indicate difficulties with Giese?s ability to manage his practice and properly communicate with clients. Attorney Giese has only practiced law for five years and it appears that he expanded his practice at a speed and breadth that he could not accommodate. As a result, clients were neglected and legal matters were not properly attended to.
The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. The Court?s Order is intended to address the serious problems associated with Giese?s law practice.
To address the concerns about Giese?s practice management deficiencies, the parties have agreed and the Court hereby orders that Giese submit his practice to monitoring by Attorney Scott Houde of Biddeford, Maine. The related Order for Monitoring is incorporated herein by reference. In that regard, the Court expects that Giese will improve his client relations, his calendaring system and his management of his caseload, so as to practice effectively and avoid future neglect of client matters.
Based upon the Court?s findings and conclusions, the Court imposes upon Mr. Giese a two (2) month suspension from practice. In doing so, the Court approves the parties? agreement and ORDERS the following sanction and conditions in this matter:
Joseph J. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Matthew E. Clark, Esq.
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Docket No.: BAR-13-13
Issued by: Maine Supreme Judicial Court
Date: January 27, 2014
Respondent: Matthew E. Clark, Esq.
Bar Number: 010030
Order: Suspension
Disposition/Conduct: Competence; Scope of Representation; Diligence; Communication; Excessive Fees; Safekeeping of Client Property; Termination of Representation
ORDER of SUSPENSION
M. Bar R. 7.2
The Board of Overseers of the Bar initiated this attorney disciplinary action on August 16, 2013, by the filing of an Information pursuant to M. Bar R. 7.1(e)(1). Attorney Clark filed an Answer to the Information on September 23, 2013, denying the Board?s allegations of professional misconduct.
The Court scheduled the parties for a pre-trial conference on November 22, 2013. By the time of that conference, Attorney Clark had retained Malcolm L. Lyons, Esq as his counsel. During the conference, the parties informed the Court that they would attempt to resolve the matter by a negotiated Order. Thereafter, the Court scheduled a final hearing for January 21, 2014.
At that hearing, the Board was represented by Assistant Bar Counsel Aria Eee and Attorney Clark was represented by Malcolm L. Lyons, Esq. Additionally, Complainant Gerald W. Donahue was present and addressed the Court. While Complainant Attorney Jim Billings did not attend the hearing, he did review the proposed Suspension Order the Board provided to him in advance of the hearing.
Attorney Matthew E. Clark was admitted to the Maine bar in 2006. From 2009 until present, Mr. Clark practiced at a small Waterville, Maine, law firm. The Court notes that except for the instant action, Clark has not otherwise been disciplined for attorney misconduct.
Following a review of the pleadings and the parties? proposal, the Court finds and Clark agrees that he engaged in several violations of the Maine Rules of Professional Conduct. As outlined below, those violations occurred within the context of one divorce case about which two resulting complaints were filed.
(GCF# 13-031 Gerald W. Donahue)
On January 24, 2013, Gerald W. Donahue filed a grievance complaint against Attorney Clark. Donahue was a client of Clark and had retained him for a 2011-2012 divorce matter then pending in Waterville District Court.
In his complaint, Donahue alleged that Clark failed to regularly communicate with him, charged an excessive fee, acted dishonestly towards him, and failed to properly represent Donahue in the divorce matter. Specifically, months after the May 2012 trial, Clark failed to notify Donahue that the District Court had issued a decision and that Clark had already received a copy of the divorce judgment. His failures in that regard violated M.R. Prof. Conduct 1.2(a), 1.3, and 1.4.
Clark also wrongly advised Donahue regarding his appeal rights and then refused to assist after Donahue decided to undertake an appeal of the judgment. Clark agrees that he failed to timely communicate with Mr. Donahue, that he improperly advised him regarding the appeal rights, and that he failed to assist Donahue?s post-judgment efforts. Due to Clark?s actions Donahue was ultimately barred from filing an appeal of his divorce judgment.
Furthermore, while Clark was not obligated to prosecute Donahue?s appeal, he was required to terminate the representation in a manner that was not prejudicial to Donahue?s interests. His failure to do so was harmful to Mr. Donahue.
Despite multiple opportunities to answer Donahue?s complaint, Clark filed no response to that complaint. Clark likewise failed to answer the Disciplinary Petition or attend the July 2013 disciplinary hearing conducted by the Grievance Commission.
GCF# 13-053/James A. Billings, Esq.
On January 25, 2013, pursuant to M.R. Prof. Conduct 8.3 (?Reporting Professional Misconduct?), Attorney James A. Billings of Augusta, Maine, filed a grievance complaint against Clark.
Billings was successor counsel for Gerald Donahue. As such, the substance of Billings? complaint is nearly identical to that filed earlier by Donahue.
In his complaint Billings explained how Clark had failed to provide diligent representation to Donahue, in violation of M.R. Prof. Conduct 1.3 and 1.4. Additionally, Billings detailed Clark?s failure to return any of Billings?s phone calls or written requests for information. Clark had also delayed returning Donahue?s client file despite repeated requests for the same.
Despite the requirement to do so, Clark failed to answer or otherwise respond to Billings?s complaint. Clark?s failure constituted a violation of M.R. Prof. Conduct 8.1(b) [disciplinary matters].
Based upon all of the above-outlined findings, the Court concludes that Attorney Clark committed violations of M.R. Prof. Conduct 1.1 [competence]; 1.2(a) [scope of representation]; 1.3 [diligence], 1.4 [communication]; 1.5(a) [fees]; 1.15(f); [safekeeping property]; 1.16(d) [termination of representation] 8.1(b) and 8.4(a)(c)(d)[other misconduct].
Attorney Clark?s multiple violations of the Maine Rules of Professional Conduct are serious and the Court must consider an appropriate sanction. The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public.
The Court notes that Attorney Clark has not been disciplined since his admission to practice. Moreover, the Court has considered as a mitigating factor the fact that Attorney Clark does not anticipate a return to the practice of law. Also of import is the fact that Attorney Clark has taken responsibility for his professional errors and expressed remorse for causing his former client, Mr. Donahue, serious upset and distress. The Court is aware that Attorney Clark has suffered from severe clinical depression and is now actively engaged in treatment.
Accordingly, effective January 31, 2014, Attorney Matthew E. Clark is suspended from the practice of law for three (3) months. By issuing this suspension, the Court accepts and approves the parties? agreement. Following his suspension, and pursuant to his request, Attorney Clark shall immediately be placed upon the list of inactive attorneys. The Court further ORDERS the following conditions in this matter:
On or before January 31, 2014, Attorney Clark shall provide notice to any remaining clients of his suspension, consistent with M. Bar R. 7.3(i)(1).
During that period of suspension, Attorney Clark may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients.
If Attorney Clark intends to resume the practice of law and return to active status, the parties agree and the Court hereby orders that Clark must submit his practice to monitoring by an attorney proposed by the parties or otherwise approved by Bar Counsel. Prior to any return to practice and active status, the parties shall submit a proposed Order for Monitoring to the Court. Attorney Clark shall not be permitted to resume practicing law until the Court has issued the aforementioned Monitoring Order.
Prior to his return to practice, Attorney Clark shall contract with the Maine Assistance Program (MAP) for appropriate services and/or support. MAP?s executive director shall notify the Court and Bar Counsel if Attorney Clark fails to enter into a contract with MAP or otherwise follow the MAP recommendations.
Finally, in the event a grievance complaint is received by Bar Counsel after January 21, 2014, Bar Counsel may elect to file a new disciplinary matter directly before the Court pursuant to the terms of this Order and Maine Bar Rule 7.2(b).
Jon D. Levy, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott David Giese, Esq.
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Docket No.: BAR-13-17
Issued by: Maine Supreme Judicial Court
Date: January 15, 2014
Respondent: Scott David Giese, Esq.
Bar Number: 004294
Order: Order for Monitoring
Disposition/Conduct: Monitoring Order
MONITORING ORDER
This Order is incorporated by reference to the Decision and Order dated January 13, 2014.
As the parties have agreed and this Court has ordered, Attorney Giese shall submit his practice of law to the monitoring of Scott M. Houde, Esq. of Biddeford, Maine for a period of one year unless otherwise ordered by the Court. The Court further ORDERS that:
a. Attorney Houde ceases to act as monitor and a potential conflict is avoided.
b. Attorney Houde continues as monitor, but totally excludes Attorney Giese?s client?s matter from the monitoring process, so that no conflict is deemed to exist.
c. Attorney Houde continues as monitor, but withdraws from the conflicted matter.
d. Attorney Houde continues as monitor, and obligates Attorney Giese not to participate in the matter and to promptly obtain replacement counsel for his client(s).
a. measures Attorney Giese has taken to avoid delinquencies
b. a description of any client matter identified as delinquent or problematic
c. any professional assistance Attorney Houde has provided to Attorney Giese
Joseph J. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles T. Ferris, Esq.
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Docket No.: BAR-13-11
Issued by: Maine Supreme Judicial Court
Date: January 31, 2014
Respondent: Charles T. Ferris, Esq.
Bar Number: 007550
Order: Suspension
Disposition/Conduct: Fairness to Opposing Party and Counsel; Respect for Rights of Third Persons, Inadvertent Disclosures; Responsibilities Regarding Nonlawyer Assistants; Dishonesty, Fraud, Deceit or Misrepresentation; Conduct Prejudicial to the Administration of Justice
Findings, Conclusions and Order
This matter is before the Court for decision after hearing conducted at the Lewiston District Court on January 21, 2014. In this proceeding and at the hearing, the Board of Overseers was represented by Bar Counsel J. Scott Davis; Charles T. Ferris was represented by Attorney Peter J. DeTroy.
Proceedings before the Board of Overseers had been initiated by separate grievance complaints filed in March 2012 by Attorney Julian Sweet and Attorney Sarah Mitchell. After initial proceedings, but no final resolution, before a panel of the Grievance Commission, the parties elected to bring the matter directly before the Court by a Stipulated Waiver of Grievance Commission Proceedings, M. Bar R. 7.1(e), 7.2(b), dated May 15, 2013, approved by the Court on June 7, 2013. After the Court?s approval, the Board of Overseers of the Bar filed a Stipulated Information and draft Order and Decision for the Court on September 25, 2013.
The Court?s findings, stated below, are based on these stipulated documents, the testimony received at hearing, and 34 exhibits that were admitted by agreement. The Court has also considered the written arguments filed by each party and the closing arguments presented at the conclusion of the evidence.
The parties have stipulated to the facts that led to the two grievance filings and stipulated to a finding that those facts constitute Ferris? violation of specific portions of Rules 3.4(c); 4.4(a); 5.3(c)(2); and 8.4(a)(c)(d) of the Maine Rules of Professional Conduct. The parties also agree that Ferris acted in violation of Rule 45(b)(1) of the Maine Rules of Civil Procedure. In addition, Bar Counsel contents, but Ferris does not agree, that the facts support a finding of violation of Rule 3.3(a) of the Maine Rules of Professional Conduct. Bar Counsel also contends, but Ferris does not agree, that the facts support a finding of violation of portions of the federal Stored Communications Act, also known as the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701 ? 2703.
With violation of some of the Rules of Professional Conduct having been admitted, the principal contested issues for hearing were whether violations of M. R. Professional Conduct 3.3(a) or the Stored Communications Act had been proven and the form and terms of the sanction to be imposed by the Court. Bar Counsel urged the Court to impose a period of actual suspension from practice, while counsel for Ferris argued for issuance of a public reprimand but no actual suspension from practice.
The grievances resulted from actions Ferris undertook in the course of litigation of (i) a criminal complaint and investigation that did not result in prosecution, (ii) a protection from abuse matter, and (iii) a divorce proceeding in the Waterville District Court. Because Ferris? actions included improper and unnoticed access to and disclosure of privileged information and sensitive personal and health information, this order will reference the persons involved in the litigation, other than the attorneys, by initials not derived from the persons? names.
Ferris was admitted to the Maine Bar in October 1992 and has engaged an active general criminal and civil litigation practice in Waterville since that time. Presently, Ferris estimates that approximately one-quarter of his work involves family law matters. Other than a private dismissal with a warning sanction for minor misconduct in 2002, Ferris has no prior sanction record on file with the Board of Overseers of the Bar.
During the course of his litigation practice over the past two decades Ferris has had occasion to utilize M.R. Civ. P. 45 to issue subpoenas ?hundreds of times? in civil cases. As an active litigator, Ferris also would have received notice and service of copies of subpoenas served by other parties on numerous occasions. Among other requirements, Rule 45(b)(1) specifies that copies of discovery subpoenas must be noticed to and served on each other party to the litigation:
Prior notice of any commanded production of documents and things or inspection of premises or the appearance of a witness in discovery or pretrial proceedings shall be served on each party in the manner prescribed by Rule 5(b) at least 14 days prior to the response date set forth in the subpoena. A party shall have 7 days to object to a discovery or pretrial subpoena and to arrange for the determination of the objection by the court.
Rule 45(c)(3)(A)(iii) further specifies that, presumably after the notice required by Rule 45(b)(1), the court, on a timely motion, ?shall quash or modify the subpoena if it ? requires disclosure or privileged or other protected matter and no exception or waiver applies ? .? These requirements of Rule 45 have been in effect, in substantially their present form, during the time of Ferris law practice.1
The legal dispute that led to this disciplinary proceeding arose during a divorce initiated in late 2010 by Attorney Sarah Mitchell?s client, Ms. A, against Attorney Ferris? client, Mr. B. Mr. B and Attorney Ferris are cousins. During the divorce Ms. A dated, and after the divorce married, Mr. C, who later became Attorney Julian Sweet?s client.
Mr. C is a principal in the business where Ms. A was employed in 2009 and into 2010.
In 2009, while Ms. A and Mr. B were married, they had a family plan with the cell phone of each on a single account with U. S. Cellular, a cell phone service provider. In the course of her work, Ms. A had to make and receive a lot of business related calls, including many calls to Canada, on her cell phone. This significantly increased the family plan bill. To avoid these costs, Mr. B asked Ms. A to change her cell phone service contract from the family plan to a contract paid for by the business she worked for. This change was made on January 17, 2009. Since that time Ms. A?s cell phone has been part of and billed to other accounts described in Exhibit 30. At no time after January 17, 2009, was Ms. A?s cell phone service part of or related to Mr. B?s cell phone family plan.
In 2010 Ms. A was diagnosed with breast cancer. She was then subjected to a very active and closely monitored treatment program involving doctors and other health care professionals in both Maine and Massachusetts. Some of the monitoring and communication, particularly with doctors in Massachusetts, was accomplished using text messaging to and from Ms. A?s cell phone. Occasionally, picture messages of areas of Ms. A?s body that had been subject to cancer treatments were sent from Ms. A to treatment providers in Massachusetts. These communications were ongoing during the times at issue in 2010 and 2011.
On December 6, 2010, a divorce complaint, dated November 30, 2010, was filed on behalf of Ms. A against Mr. B. The complaint was filed by an attorney who later withdrew and was replaced by Attorney Mitchell.
On December 8, 2010, Ferris filed an answer and counterclaim for divorce on behalf of Mr. B.
On December 13, 2010 an interaction between Ms. A and Mr. B occurred that resulted in a criminal complaint being filed against Mr. B. The record suggests that the criminal matter was investigated as a terrorizing or a disorderly conduct charge. Ultimately the matter was not prosecuted.
On December 17, 2010, Ms. A obtained a temporary order of protection from abuse that prohibited Mr. B from having any direct or indirect contact with Ms. A except incidental contact regarding school functions of their child.2 The temporary order was to expire on January 13, 2011. On that date a hearing on the final order was waived and a final order issued, without findings of abuse, prohibiting Mr. B from having any direct or indirect contact with Ms. A except incidental contact regarding their child. The final order was to expire on May 23, 2011. The expiration date was extended first to August 22, 2011, and then, ultimately, to January 2, 2014. Ferris first appeared representing Mr. B in the protection from abuse proceeding on August 22, 2011.
On or about January 20, 2011, Attorney Ferris served a subpoena for U.S. Cellular on an attorney at the Augusta office of the PretiFlaherty Law Firm. The January 20 subpoena and each other subpoena at issue in the proceeding was served on the PretiFlaherty attorney because he was listed as the registered agent for U.S. Cellular.
The first subpoena used a Waterville District Court criminal case docket number, but indicated it related to ?the matter of? Ms. A v Mr. B, without specifying whether ?the matter? was the protection from abuse action or the divorce action. It indicated that it was issued on behalf of Mr. B and commanded U.S. Cellular to produce for inspection and copying at Ferris? law office ?Cell phone text messages between [the cell phones of Ms. A and Mr. C] from January 1, 2010 to January 19, 2011.?
The subpoena did not indicate the source of Ferris authority to seek the cell phone records. The subpoena was not served on or noticed to Ms. A?s attorney. This failure to serve or notify was a violation of M.R. Civ. P. 45(b)(1).
Apparently neither PretiFlaherty nor U.S. Cellular questioned Ferris? authority to get the text message information requested, as a log of the calls between Ms. A and Mr. C and a CD purporting to contain the text messages requested was provided to Ferris sometime after February 1, 2011. The record before the Court contains call logs between August 16, 2010 and December 14, 2010 and a photo copy of a CD and a CD case covered with a handwritten note. The CD is not in the record. What was on the CD, and whether call logs for other dates were provided is not apparent from the record.
The parties? stipulations in this proceeding indicate that at some time the call logs and the CD were turned over or copied to the District Attorney?s office. However there is no indication that Ms. A or her attorney were aware that Ferris had sought and U.S. Cellular had provided this information to Ferris until Ms. A?s deposition on July 29, 2011.
On April 20, 2011, Mr. B sent a Fax to ?US Cell Subpoena Compliance Dept.? The Fax stated ?Please preserve text message content for [Ms. A?s cell phone number] for the time period 04-15-2011 through 4-20-2011 inclusive.? The fax also directed U.S. Cellular to call Mr. B?s cell phone number if there were any questions. This request to preserve text messages was one of several written and personal contacts that Mr. B had with U.S. Cellular staff to facilitate his access to and review of Ms. A?s and later Mr. C?s cell phone records and text messages.
On or about May 11, 2011 Ferris served a second subpoena on PretiFlaherty as agent for U. S. Cellular. This subpoena and a subsequent one dated July 15, 2011, referenced no Waterville District Court docket number, and indicated it related to ?the matter of? Ms. A v Mr. B, again without specifying whether ?the matter? was the protection from abuse action or the divorce action. The May 11 subpoena sought inspection and copying of the ?test message? content of Ms. A?s cell phone for April 15 through April 20, 2011 ?that was preserved by fax dated April 20, 2011.?
This subpoena was not limited to text or test messages between Ms. A and Mr. C, but encompassed all of Ms. A?s text message communications during that time, including privileged communications between Ms. A and her attorney and privileged communications between Ms. A and her health care providers.
As with the response to the January 20 subpoena, the requested text messages ? now all text messages sent to or received by Ms. A in the designated time period ? were apparently provided to Ferris and Mr. B by U.S. Cellular without question and without objection.
Again no notice of this subpoena was provided to Ms. A or her attorney. This was a second violation of M.R. Civ. P. 45(b)(1); a breach, by an opposing attorney, of Ms. A?s attorney-client privilege, M.R. Evid. 502, to the extent that the text messages included communications with Ms. A?s counsel; and a breach of Ms. A?s health care professional-patient privilege, M.R. Evid. 503, to the extent that the text messages included communications with Ms. A?s cancer care providers.
On or about July 15, 2011 Ferris served a third subpoena on PretiFlaherty as agent for U. S. Cellular. This even broader subpoena sought inspection and copying of: ?The test [sic?] message content for the dates, specifically June 16, 2011 through July 14, 2011 for cell number [Ms. A?s cell phone] and [Mr. C?s cell phone].?
This subpoena also was not limited to text messages between Ms. A and Mr. C, but encompassed all of Ms. A?s text message communications during that time, including privileged communications between Ms. A and her attorney and privileged communications between Ms. A and her health care providers. The subpoena also encompassed all of Mr. C?s text message communications during the designated time, including all text messages regarding his business, among which were some highly sensitive communications regarding pay and status of some employees of Mr. C?s business.
At the time the subpoena sought disclosure of Mr. C?s text messages, Mr. C was not a party to or a participant in the litigation.
As with the response to the January 20 and May 11 subpoenas, the requested text messages ? now all text messages sent to or received by Ms. A and Mr. C in the designated time period ? were apparently provided to Ferris and Mr. B by U.S. Cellular without question and without objection.
As with the first and second subpoenas, no notice of this subpoena was provided to Ms. A, or her attorney, or Mr. C. This was Ferris? third violation of M.R. Civ. P. 45(b)(1); a second breach, by an opposing attorney, of Ms. A?s attorney-client privilege, M.R. Evid. 502, to the extent that the text messages included communications with Ms. A?s counsel; and a second breach of Ms. A?s health care professional-patient privilege, M.R. Evid. 503, to the extent that the text messages included communications with Ms. A?s cancer care providers.
Because Mr. C had no notice of the third subpoena, he had no opportunity to assert that the disclosed text messages may have included privileged material, or material that was entitled to confidentiality as personnel records, trade secrets, or other confidential commercial information. See M.R. Civ. P. 45(c)(3)(B)(i).
On July 29, 2011, Ms. A appeared with her attorney for a scheduled deposition at Ferris? office. Before the start of the deposition, Mitchell stated that she assumed that the deposition would be limited to financial issues, as prior court approval would be required for ?non-financial discovery? pursuant to M. R. Civ. P. 112(a). Ferris informed Mitchell that he was unfamiliar with the limitation in the rules that discovery in family law cases, without prior court approval, be limited to financial issues.
In the middle of the deposition, Ferris excused himself briefly. Mitchell assumed Ferris was excusing himself to consult with his client, Mr. B, who was prohibited by the court order in the protection from abuse mattrer from being in the presence of Ms. A. Ferris returned from the break with a thick file full of paper. Acting like he had found a smoking gun in the case, Ferris announced that he had ?boxes? containing ?thousands? of Ms. A?s text messages obtained from U.S. Cellular, and that he possessed many more than he had brought to the deposition room.
Ferris indicated that he would begin questioning Ms. A about the text messages. Mitchell objected to the lack of notice of these materials and the effort to extend the questioning at the deposition beyond financial issues about which inquiry was allowed with prior court order. After some further questioning apparently related to financial issues, the deposition was completed. Prior to that deposition, Ferris had never informed Attorney Mitchell that he had obtained those communications by utilizing the subpoenas.
Immediately after the deposition, Ms. A terminated her U.S. Cellular service.
About two weeks after the deposition, on or about August 11, 2011 Ferris served a fourth subpoena on PretiFlaherty as agent for U. S. Cellular. This subpoena referenced the divorce action docket number. Like the third subpoena, the fourth subpoena sought inspection and copying of: ?The text message content for the dates, specifically July 15, 2011 through 8/10/11 for cell numbers [Ms. A?s cell phone] and [Mr. C?s cell phone].?
This subpoena also was not limited to text messages between Ms. A and Mr. C, but encompassed all of Ms. A?s text message communications during that time, including privileged communications between Ms. A and her attorney and privileged communications between Ms. A and her health care providers. The fourth subpoena, like the third, also encompassed all of Mr. C?s text message communications during the designated time, including all text messages regarding his business, among which were some highly sensitive communications regarding pay and status of some employees of Mr. C?s business.
When the subpoena sought disclosure of Mr. C?s text messages Mr. C was not a party to or a participant in the litigation. Four days after the subpoena was dated, Ferris noticed Mr. C?s deposition and the deposition of Ms. A?s mother and another individual for August 26, 2011.
As with the response to the January 20, May 11, and July 15 subpoenas, the requested text messages ? now all text messages sent to or received by Ms. A and Mr. C in the designated time period ? were apparently provided to Ferris and Mr. B by U.S. Cellular without question and without objection. In the course of obtaining these cell phone messages, Mr. B was advised by U.S. Cellular that he should stop sending preservation letters regarding Ms. A?s account because Ms. A had terminated her U.S. Cellular service on July 29, 2011.
As with the three prior subpoenas, no notice of this subpoena was provided to Ms. A or her attorney, despite objection lodged at the July 29 deposition. This was a fourth violation of M.R. Civ. P. 45; a third breach, by an opposing attorney, of Ms. A?s attorney-client privilege, M.R. Evid. 502, to the extent that the text messages included communications with Ms. A?s counsel; and a third breach of Ms. A?s health care professional-patient privilege, M.R. Evid. 503, to the extent that the text messages included communications with Ms. A?s cancer care providers.
Because Mr. C had no notice of the fourth subpoena, he had no opportunity to assert that the disclosed text messages may have included privileged material, or material that was entitled to confidentiality as personnel records, trade secrets, or other confidential commercial information. See M.R. Civ. P. 45(c)(3)(B)(i).
Following the noticing of the depositions, but before the August 26 deposition date, Mitchell filed a motion to quash the deposition subpoenas. There then followed a series of motions and objections to the ongoing discovery and motions for sanctions filed by both parties regarding litigation practices. In opposing two of Mitchell?s motions and, separately, in support of his motion for sanctions, Ferris quoted or attached selected text messages between Ms. A. and Mr. C. that he and Mr. B had obtained from U.S. Cellular.
While the discovery motion practice was on-going, on or about September 7, 2011, Ferris served a subpoena on a local credit union seeking inspection and copying of a video of a transaction and account documentation related to a single transaction by Ms. A?s mother involving a specifically numbered check. The subpoena included no docket number an indicated it related to an action between Ms. A and Mr. B that could have been the protection from abuse action or the divorce action. As with the subpoenas to U.S. Cellular, no notice or copy of the subpoena was provided to Ms. A or her attorney or to Ms. A?s mother.
The subpoena was received by the credit union?s director of security on or about September 14, 2011 following its original receipt by another credit union employee. The director of security called Ferris office and asked to speak with Ferris regarding concerns about the subpoena. Ferris office advised that he was not available, the director of security left his name and number and asked to have Ferris return his call. Ferris never returned the call. However, the director of security was called twice by Mr. B who indicated he was returning the call on behalf of Ferris. The director of security advised Mr. B that he had concerns about the subpoena as drafted and asked Mr. B to have Ferris call him.
Ferris did not make the requested call. Instead, on October 26, 2011 an unsigned facsimile letter by ?Charles T. Ferris, Esq./Kathy? was sent from Ferris? office to the branch manager of Ms. A?s mother?s credit union. That letter falsely stated that the director of security ?indicated that he would honor the subpoena? dated September 7, 2011 for the release of Ms. A?s mother?s records and the video of her transaction regarding the specific check. The director of security had never given any such consent or authorization to Ferris or anyone at his law office.
After learning of the failed effort to subpoena credit union records of a transaction by Ms. A?s mother and the false statement sent from Ferris? office to the credit union branch manager, Mitchell filed a second motion for sanctions. The motion requested, among other requested relief, that Ferris be required to obtain court approval before issuing any further subpoenas.
Sometime after learning that Ferris had accessed text messages that Mr. C. had sent and received from his cellphone, Mr. C. retained attorney Julian Sweet to assert his privacy rights, seek return and prevent use of the text messages already obtained by Ferris, and to prevent further access to his cellphone records. In late 2011, Sweet spoke with Ferris regarding the text messages that Ferris and Mr. B had obtained from U.S. Cellular. At the time Ferris stated to Sweet that Ferris had obtained ?over 50,000 text messages? from or to Ms. A and Mr. C. Ferris also advised Sweet that he did not plan to distribute the text messages further. In a January 23, 2012 letter to a psychologist consulting on the divorce case, Ferris again referenced the text messages in urging the psychologist to support his client?s position in the divorce case.
In early 2012, Sweet appeared in the District Court divorce proceeding, filing a motion on behalf of Mr. C for a protective order and sanctions. Referencing the Stored Communications Act, 18 U.S.C. § § 2701, 2702, Sweet?s motion asserted that it was unlawful for U.S. Cellular to have provided, and Ferris to have received,3 Mr. C?s text message communications based solely on the civil discovery subpoena served on U.S. Cellular. Sweet?s motion also asserted that Ferris had served the subpoenas in violation of the requirement of M.R. Civ. P. 45(b)(1) that all parties to an action be noticed when subpoenas are issued and have a reasonable opportunity to oppose the disclosures sought by the subpoena before the deadline for disclosure of the information. At the hearing before this Court, Ferris stated that his receipt of Sweet?s motion was the first time that he became aware that Rule 45(b)(1) required that he notify all parties to an action when issuing subpoenas.
Ferris opposed Sweet?s motion, asserting, incorrectly, that Ms. A?s cell phone was marital property and part of a multi-line account that included Mr. B?s cell phone. If true, this claim could have justified Ferris, on behalf of Mr. B, obtaining text messages generated on Mr. B?s U.S. Cellular account. However, as already noted, at Mr. B?s direction, Ms. A had separated her cell phone from Mr. B?s account in January 2009. Since then, Ms. A had maintained a separate cell phone account. The record does not indicate whether or not Mr. B had informed Ferris that Ms. A?s account was not part of his account.
Ferris opposition to Sweet?s motion for sanctions also asserted, incorrectly, that his subpoenas had been ?narrowly tailored? and ?included only the text messages between [Ms. A and Mr. C.] for certain periods of time during the parties divorce.? As already noted: three of Ferris? subpoenas sought all text messages to and from Ms. A, including those to or from her attorney and to or from her cancer care providers; two of Ferris? subpoenas sought all text messages to and from Mr. C for the designated time periods.
In a subsequent filing with the District Court opposing the pending motions for sanctions Ferris conceded that the subpoenas were more broadly worded than he had earlier indicated. This filing, exhibit 31 in this record, also contained the frank admission that while Ferris had issued the subpoenas by contacting U.S. Cellular?s agent at PretiFlaherty, Ferris? client, Mr. B, had followed up by identifying direct contacts within U.S. Cellular with whom Mr. B had communicated to get access to Ms. A?s and Mr. C?s text messages. U.S. Cellular would have been aware by the time Mr. B was seeking access to Ms. A?s cell phone records and text messages, that Ms. A?s cell phone account was not affiliated with Mr. B?s cell phone account. PretiFlaherty had no involvement with these direct contacts with U.S. Cellular by Mr. B.
At the time, there was an outstanding protection from abuse order prohibiting Mr. B from having contact with Ms. A. Thus, what U.S. Cellular had done, according to Ferris? statement, was to permit a person barred from contacting Ms. A by a protection from abuse order to work directly with its agents to facilitate his access to Ms. A?s text messages, the text messages of an individual she was dating, and text messages between Ms. A and her attorney and between Ms. A and her cancer care providers. Ferris should not have allowed his client to have such direct contacts with U.S. Cellular to access Ms. A?s text messages, and should have stopped such contacts immediately when he learned of them.
Instead of conceding error, in exhibit 31 Ferris justified his and his clients actions as necessary to uncover alleged deception in Ms. A?s responses to discovery, arguing, among other things, that: ?Any alleged mishandling of the subpoena process was a direct result of a blatant pattern of material misrepresentation, deception, and perjury conducted by the Plaintiff [Ms. A].?
While the motion for sanctions was pending in the District Court, and before the filing of exhibit 31, Sweet and Mitchell filed separate grievance complaints with the Board of Overseers of the Bar addressing the same issues of improper use of a subpoena, without notice, to access the cellphone records and particularly the text messages sent to and from their respective clients. Mitchell indicated that she had elected not to file a grievance complaint earlier to avoid further aggravating and driving up the cost of what already was a difficult divorce that she hoped to resolve with as little additional aggravation as possible.
After a hearing on the motions for sanctions and receipt of written arguments from Mitchell, Sweet, and Ferris, in the pending divorce action the District Court (Dow, J.) issued its Order Finding Violations and Imposing Sanctions on May 11, 2012. The District Court found Ferris to have violated M. R. Civ. P. Rules 45(b)(1) and 112(a) by failing to provide any notice of the subpoenas Ferris had served on U.S. Cellular, and for failing to obtain leave of court, upon a showing of good cause, to conduct that non-financial discovery in that family matter. As a sanction, the court generally prohibited Ferris from using any of the wrongfully obtained text messages in the divorce matter (except for limited impeachment purposes) and further ordered Ferris to personally pay attorney fees of $1,000 to Attorney Mitchell and $500 each to Attorney Sweet and to his co-counsel.
A month later the divorce action between Ms. A and Mr. B was heard and decided on an uncontested basis.
Ferris?s actions had significant adverse impacts on Ms. A. Most directly, his actions significantly increased the cost and tension incident to resolution of the divorce. Ultimately, as a result, she agreed to a settlement and resolution of the divorce that, she and her attorney believed, was less favorable than it might have been because she wanted to end the tension, expense, and personal embarrassment that Ferris? actions in accessing her text messages had caused her.
Ms. A. also has been more reluctant to go out and about in the Waterville community because she believes, based on comments that friends and associates have made to her, that the contents of text messages between her and Mr. C., and between her and her healthcare providers, have been made known to some members of the Waterville community.
Because of the disclosure of the privileged text messages between her and her cancer care providers in Massachusetts, those cancer care providers elected to stop using text messaging for communication with Ms. A. As a result, her communication with the healthcare providers assisting her cancer treatment is less immediate and more difficult.
Ms. A. also remains significantly concerned that more embarrassing contents of text messages may be disclosed. This concern is based on communications to her by Mr. B. indicating that he may have access to file cabinets containing a large volume of her text messages and implying that he may use that access to publish text messages to embarrass her.
For Mr. C., the publication of his text messages has also created embarrassment within the Waterville community. Further, he is concerned that there are text messages that Ferris and Mr. B. have access to that, if disclosed, could adversely affect his relationship with some of his employees, as some of the text messages involved communications with other managers?communications that he anticipated would be confidential?regarding employees? skills and pay levels.
The Stored Communications Act: Section 2701
The Board contends that Ferris violated the federal Stored Communications Act, 18 U.S.C. § 2701(a) by using subpoenas to access Ms. A?s and Mr. C?s cell phone records and view their text messages. Section 2701(a) provides, in relevant part:
(a) Offense.--Except as provided in subsection (c) of this section whoever--
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
These prohibitions appear to address hacking, wiretapping and other means for accessing electronic communication systems that are not known to the electronic communications provider. These prohibitions do not apply to attempts to access electronic communication system information by subpoena. Otherwise the subpoena servers addressed in the many opinions cited below would have subjected themselves the criminal penalties of section 2701(b). The Court finds that Ferris? actions serving subpoenas did not violate section 2701.
The Stored Communications Act: Section 2702
That U.S. Cellular would voluntarily provide to Ferris and Mr. B copies of text messages containing sensitive and privileged material appears extraordinary in light of the on going debate about the propriety of government agencies, supported by court orders, reviewing cell phone call logs that do not even include the actual text of messages such as were freely provided in response to the subpoenas here. Likewise, it appears strange that U.S. Cellular, or any electronic communication provider, would work directly with a person subject to a no contact provision in a protection from abuse order or a person who was subject to a criminal investigation, to facilitate that person?s access to the cell phone records and text messages of a court order protected person or a potential criminal case witness.4
U.S. Cellular?s prompt, unquestioning response to Ferris? subpoenas and its facilitation of direct contacts by Mr. B with U.S. Cellular personnel may have encouraged Ferris to believe, incorrectly, that there was little that was improper about his requests and led him to initiate ever more expansive requests for data.
However, U.S. Cellular?s conduct accommodating Ferris and Mr. B in their efforts to access Ms. A?s and Mr. C?s text messages was a violation of federal law. The Stored Communications Act, 18 U.S.C. § 2702(a)(1) mandates that ?a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.? See Mintz v. Mark Bartelstein & Assoc. Inc., 885 F.Supp.2d 987, 991, 993-994 (C.D. Cal. 2012) (holding that section 2702(a)(1) prohibits an ?electronic communication service? from disclosing text message content in response to a subpoena).
Wireless communications providers such as AT & T in Mintz or U.S. Cellular here are properly classified as an ?electronic communication service.? Mintz, 885 F.Supp. at 992; see also S.Rep. No. 99?541, at 14 (1986), 1986 U.S.C.C.A.N. 3555, 3568 (?Existing telephone companies and electronic mail companies are providers of electronic communications services.?).
Thus, U.S. Cellular must comply with the laws applicable to electronic communication services specified in 18 U.S.C. § 2702(a)(1), unless one of the specifically enumerated exceptions in 18 U.S.C. § 2702(b) apply.
Title 18 U.S.C. § 2702(b) contains many exceptions that do not apply here, such as the exceptions for law enforcement purposes. 18 U.S.C. § 2702(b)(6)-(8). The possibly relevant exceptions include 18 U.S.C. § 2702(b)(1), which permits the disclosure of the contents of a communication ?to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.? Additionally, 18 U.S.C. § 2702(b)(3) permits the disclosure of the contents of a communication ?with the lawful consent of the originator or an addressee or intended recipient of such communication.? One of these exceptions might have applied if, as Ferris contended, Ms. A?s and Mr. B?s cell phone accounts were related numbers on a jointly billed family plan. However, the family plan relationship for these phones and accounts was terminated in 2009.
The Stored Communications Act includes no exception authorizing text message content disclosure based on a civil discovery subpoena. 8Mintz, 885 F.Supp.2d at 991-994; *Bower v. Bower, 808 F.Supp.2d 348, 349-350 (D. Mass. 2011) (no exception for civil discovery subpoenas, ?courts have repeatedly held that providers such as Yahoo! And Google may not produce emails in response to civil discovery subpoenas?); Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 976 (C.D.Cal.2010) (rejecting argument that the SCA permits the disclosure of the contents of communications pursuant to a civil discovery subpoena); Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D.Mich.2008) (?[A] s noted by the courts and commentators alike, § 2702 lacks any language that explicitly authorizes a service provider to divulge the contents of a communication pursuant to a subpoena or court order.?); Viacom International Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y.2008) (holding that the SCA ?contains no exception for disclosure of such communications pursuant to civil discovery requests?); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D.Va.2008) (?Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of [a person?s] electronic communications to [an insurance company] because the statutory language of the [SCA] does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas.?); O?Grady v. Superior Court, 139 Cal.App.4th 1423, 1447, 44 Cal.Rptr.3d 72 (2006) (?Since the [SCA] makes no exception for civil discovery and no repugnancy has been shown between a denial of such discovery and congressional intent or purpose, the Act must be applied, in accordance with its plain terms, to render unenforceable the subpoenas seeking to compel [electronic communication services] to disclose the contents of e-mails stored on their facilities.?).
The volume of these citations demonstrates that there is no real doubt about the law. U.S. Cellular violated the Stored Communications Act in allowing Ferris and Mr. B to access Ms. A?s and Mr. C?s cell phone records and text messages. After adopting clear and specific obligations for privacy protections in section 2702, Congress appears to have deprived citizens of any recourse when cell phone providers violate the law and citizens? privacy by disclosing information that should be protected. Congress has adopted 18 U.S.C. § 2703(e) as follows:
(e) No cause of action against a provider disclosing information under this chapter.--No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.
In effect, cell phone providers are prohibited from giving out protected information in response to a subpoena, but they are protected from any recourse if they violate the law. While Ms. A and Mr. C were wronged by U.S. Cellular enabling Ferris and Mr. B to access many thousands of their text messages in response to Ferris? subpoenas and Mr. B?s direct contacts, the Court cannot find that U.S. Cellular?s misconduct constitutes an ethical violation by Ferris. As noted above, U.S. Cellular?s ready accommodation of his subpoenas led Ferris to believe that his subpoenas were the proper way to access text messages.
However, Ferris delegating to Mr. B responsibility for dealing directly with U.S. Cellular and for accessing, viewing and copying Ms. A?s and Mr. C?s text messages, as described in Exhibit 31, when Ferris knew that Mr. B was prohibited by court order from contacting Ms. A was a serious ethical violation. In effect Ferris enabled Mr. B, without notice to Ms. A, to contemporaneously monitor Ms. A?s text messaging, action which, in a high conflict domestic dispute, could have put Ms. A at risk. This conduct was seriously prejudicial to the administration of justice, violating Maine Rule of Professional Conduct 8.4(d) in a way that did cause serious emotional distress and could have caused physical harm to an opposing party in litigation.
The discipline imposed in this matter must include a plan to identify and remove from Ferris? and Mr. B?s access and control the more than 50,000 text messages that Ferris claimed to have obtained from U.S. Cellular.
The Maine Rules of Professional Conduct
The Court will address the other violations of The Rules of Professional Conduct by referencing the Rules that the parties have stipulated were violated in this proceeding:
Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
Ferris violated Rule 3.4 on five occasions by serving subpoenas without providing the notice required by M.R. Civ. P. 45(b)(1). Additionally Ferris violated Rule 3.4 on three occasions by accessing and allowing Mr. B to access materials that could have included confidential attorney-client communications protected from disclosure by M.R. Evid. 502. These violations, invading an opposing party?s privileged communications with counsel, or attempting to do so, are serious violations, requiring a serious sanction. See Board of Overseers of the Bar v. Ebitz, BAR-92-10 at 5 (August 18, 1992) (imposing a limited six month suspension from practice for one instance of reviewing opposing counsel?s trial notebook during a trial).
Rule 4.4 Respect for Rights of Third Persons; Inadvertent Disclosures
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Rule 4.4 was violated in four instances by the unnoticed subpoenas that had the effect of depriving Ms. A and Mr. C of their right to learn of and oppose Ferris? and Mr.B?s successful efforts to access their text messages. Mr. C, a ?third person? was embarrassed by the access to his text messages and the sense that the content of some of those messages may have been disclosed in the Waterville community. He testified it was ?painful to have your entire life on display.? Other third persons who could have been embarrassed or burdened by these four instances of misconduct include Ms. A?s health care providers and Mr. C?s employees.
Rule 4.4 was also violated by Ferris? false statement to the credit union indicating that its security director had approved release of information about Ms. A?s mother?s transaction when no such approval had been given.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(c) a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Ferris cannot avoid responsibility for the false statements in the letter to the credit union and the overbroad language and other defects in the subpoenas by blaming his staff. He is responsible for those actions, and his effort to avoid that responsibility by blaming staff or not giving staff proper supervision constitutes a violation of Rule 5.3.
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; or;
(d) engage in conduct that is prejudicial to the administration of justice.
Rule 8.4 is violated by (i) the unnoticed service of the five subpoenas; (ii) the three instances of access and review or attempted access of attorney-client communications, (iii) the three instances of access and review or attempted access of privileged, confidential and personally embarrassing attorney client communications; (iv) the false statement to the credit union, and (v) the choice, discussed above in relation to the Stored Communications Act, to enable Mr. B to work directly with U.S. Cellular to access and review a very large volume of Ms. A?s and Mr. C?s text messages.
Rule 3.3(a) Candor Toward the Tribunal
A lawyer shall not knowingly:
make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
As noted at the beginning of this opinion, the parties do not agree that Rule 3.3(a) was violated. Bar Counsel contends that Rule 3.3(a) was violated; Ferris? counsel contends that Rule 3.3(a) was not violated. Ferris? advocacy before the District Court was aggressive, sometimes harsh in criticism of Ms. A; his conduct in this matter caused Ms. A emotional distress and could have put her at physical risk; and Ferris on several occasions agued propositions of law that were not sound or supported in statute or precedent. However, unsound legal arguments, by themselves, do not constitute actionable professional misconduct.
One time in the record when Ferris did make an incorrect statement to the District Court regarding the scope of the subpoenas served on U.S. Cellular, he later corrected that statement to concede that the subpoenas had sought all of Ms. A?s and Mr. C?s text messages in the relevant time periods, not just those between Ms. A and Mr. C. The Court finds no violation of Rule 3.3(a).
Based on the Court?s findings regarding violation of the Maine Rules of Professional Conduct, the Court proceeds to consider the sanctions that should be imposed. In this case, Ferris, on five separate occasions, served subpoenas?four on U.S. Cellular and one on a local credit union?without providing the required notice to Ms. A?s attorney or Ms. A., who are the parties to the action. On three separate occasions, Ferris obtained access to Ms. A.?s text messages, which he knew or should have known could have contained confidential attorney/client communications protected by M.R. Evid. 502, and confidential health care professional/patient communications protected by M.R. Evid. 503. Ferris?s access to and disclosure of Ms. A.?s text messages also accomplished a goal for his client by causing Ms. A. to agree to a resolution of the divorce more favorable to Mr. B. then she would have liked because she desired to end the tension, harassment, and embarrassment in the community that Ferris? and Mr. B?s access to her text messages had caused.
Ferris?s explanations for his actions are difficult. First, he asserts that, until receipt of Sweet?s motion for sanctions to the District Court, he was unaware that M.R. Civ. P. 45(b)(1) required parties serving subpoenas in civil actions to notify all other parties to the action of the service of the subpoena. The Court finds this claim not credible. At the time that the subpoenas were issued, Ferris had been engaged in an active litigation practice for nineteen years. During that time, he had issued subpoenas on hundreds of occasions. Also, in a litigation practice that involved frequent use of subpoenas, Ferris must, on many occasions, have received the required Rule 45(b)(1) notice from other parties in actions in which he was involved when opposing attorneys issued subpoenas.
Ferris also asserts that the overbroad nature of the subpoenas to U.S. Cellular, to the extent that they sought information beyond the text messages between Ms. A. and Mr. C., and the false statement made to the credit union was the fault of his staff in drafting the subpoenas and notices. However, lack of supervision of staff and getting improper documents from staff and then using them is not an excuse, but a confirmation of violation of the rules requiring proper supervision of staff and imposing on attorneys responsibility for errors of professional conduct that are caused by staff involvement in litigation.
Ferris also states that he made his errors as a result of having too close of a relationship with his client and being driven by the desires of his client rather than applying his own professional judgment to his litigation tactics in the divorce. This, likewise, is not an excuse or a mitigating factor regarding Ferris? responsibility for his professional misconduct. With difficult clients, attorneys have a greater responsibility to assure that they exercise independent judgment and apply appropriate ethical standards in dealing with other parties.
Ferris and Bar Counsel agree and the Court finds that Ferris violated obligations under the Rules 3.4(c); 4.4(a); 5.3(c)(2); and 8.4(a)(c)(d) of the Maine Rules of Professional Conduct. As discussed above, the violations of the Rules are many and significant, particularly with regard to their impact on opposing parties and third parties in litigation. Balanced against this is Ferris twenty years of active litigation practice, with no prior ethical violations of note, as he provided, and can continue to provide, important service to many people who need legal assistance, including some who have limited ability to pay. Despite the importance and value of Mr. Ferris? service to his community, the Court concludes that the number and seriousness of the ethical violation committed would be diminished if no period of suspension were imposed. Accordingly, the Court will impose sanctions as follows.
The Court ORDERS:
1. Charles T. Ferris is suspended from the practice of law for a period of six (6) months, beginning on March 3, 2014 and ending on September 3, 2014.
2. On or before March 3, 2014 Charles T. Ferris shall comply with the notice requirements stated in M. Bar R. 7.3(i)(1).
3. Charles T. Ferris shall assemble and turnover to Bar Counsel all copies of text messages of Ms. A and Mr. C possessed in his office in either paper or electronic form and shall cooperate with Bar Counsel in an audit of his office files, computers and smart phones to identify and turnover to Bar Counsel all copies of such text messages. Ferris shall also retrieve all copies of such messages possessed by his client or former client Mr. B, and turnover such messages to Bar Counsel. Ferris shall pay the costs of an audit to assure that all text messages improperly provided by U.S. Cellular are recovered and turned over to Bar Counsel and that all paper and electronic copies of the text messages are purged from any and all files or electronic equipment accessible to or under the control of Mr. Ferris, his firm, or Mr. B.. When the audit, purging of files and equipment, and identification and turnover of all text messages improperly provided to Ferris or Mr. B by U.S. Cellular is completed, Bar Counsel shall so certify to the Board of Overseers of the Bar. Ferris may be reinstated to active practice of law only after completion of the six month suspension and after Bar Counsel provides the certification to the Board.
4. Bar Counsel is requested to notify the Attorney General of the State of Maine and the United States Attorney about the practices of U.S. Cellular regarding permitting access to cell phone records and text messages that have been at issue in this case. While federal law would not appear to permit much recourse against U.S. Cellular for violations of laws intended to protect cell phone users privacy, it may be important to know that U.S. Cellular access practices apparently permit individuals who are subject to protection from abuse orders, domestic violence complaints, and criminal investigations to utilize subpoenas to access the cell phone records and text messages of persons protected by protection from abuse orders and persons who may be crime victims or witnesses. Consideration may need to be given to means for protection of the privacy and security of such persons who may be U.S. Cellular subscribers.
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
1 Rule 45(b)(1) was amended in 1993 to specify that discovery subpoenas for production and inspection of documents must be noticed to other parties ?to preserve their opportunity to object to or supplement discovery.? Advisory Committee?s Notes ? 1993. The fourteen-day advance notice requirement was added in 2007.
2 The Court can take judicial notice of docket entries in cases related to the matter that the Court is addressing. Guardianship of Jewel M., 2010 ME 80, § 24, 2 A.3d 301.
3 Sweet?s motion referencing Mr. B acting ?by? or ?through? his counsel Ferris suggests that as of that time, Sweet may not have been aware that, with Ferris? approval, Mr. B had been communicating directly with staff at U.S. Cellular to review and acquire the text messages.
4 The original purpose given for seeking Ms. A?s cell phone records and text messages was to aid Mr. B?s defense against possible criminal charges arising out of what appeared to be an incident of domestic abuse or domestic violence.
Board of Overseers of the Bar v. Charles T. Ferris, Esq.
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Docket No.: BAR-13-11
Issued by: Maine Supreme Judicial Court
Date: February 24, 2014
Respondent: Charles T. Ferris, Esq.
Bar Number: 007550
Order: Order and Decision
Disposition/Conduct: Order on Reconsideration No. 2
Order on Reconsideration No. 2
After conference with counsel on February 19, 2014 regarding the Defendant?s Motion for Reconsideration, the Court ORDERS:
A. Paragraphs 1 and 2 of the Order of January 31, 2014 are amended to read as follows:
B. The Order of January 31 remains otherwise unchanged. The Motion for Reconsideration is withdrawn.
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Julie Court Molloy
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Docket No.: BAR-13-14
Issued by: Supreme Judicial Court
Date: February 28, 2014
Respondent: Julie Court Molloy
Bar Number: 008681
Order: Reprimand Reciprocal Discipline
Disposition/Conduct: Reciprocal Discipline
ORDER M. Bar R. 7.3(h)(3)
On September 12, 2013 the Board of Overseers of the Bar petitioned the Court in this reciprocal discipline matter to issue an Order and Notice for Defendant Julie Court Molloy to show cause why she should not receive a reprimand in Maine based upon the reprimand imposed upon her by the Massachusetts Supreme Judicial Court on August 28, 2013. Attached to the Board?s Petition for Reciprocal Discipline was a certified copy of that Order of Public Reprimand issued by the Massachusetts Supreme Judicial Court.
As a result, on October 24, 2013 the Court issued that Order and Notice for Ms. Molloy, within 30 days of service of that Order upon her, to inform the Court in writing of any claim by her that such reciprocal discipline should not be imposed in Maine. On January 22, 2014 Bar Counsel confirmed to the Court?s Executive Clerk that copies of a Summons, Petition for Reciprocal Discipline and the Court?s Order and Notice had been served upon Ms. Molloy in East Sandwich, Massachusetts by the Barnstable County Massachusetts Sheriff?s office on January 10, 2014. That Summons directed Ms. Molloy to file an Answer to the Petition for Reciprocal Discipline within 30 days of that service date.
Ms. Molloy has defaulted by failing to file any response to this Court?s Order and Notice of October 24, 2013.
Upon consideration of the Board of Overseers of the Bar?s Motion for Default concerning its Petition for Reciprocal Discipline, and after providing Ms. Molloy an opportunity to be heard, it is hereby ORDERED as follows:
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jonathan H. Steinman
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Docket No.: BAR-14-2
Issued by: Maine Supreme Judicial Court
Date: March 10, 2014
Respondent: Jonathan H. Steinman
Bar Number: 007659
Order: Resignation
Disposition/Conduct: Resignation
ORDER of RESIGNATION M. Bar R. 7.3(g)
Attorney Jonathan Steinman (now administratively suspended) was admitted to practice law in Maine in 1993. Despite that bar admission, Mr. Steinman has never actually practiced law in Maine and he has no current clients.
On December 18, 2013 Mr. Steinman submitted a voluntary resignation request to the Board of Overseers of the Bar. With that submission, Mr. Steinman also provided a supporting Affidavit detailing the circumstances of his request to resign. On January 15, 2014 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Mr. Steinman?s resignation from the Maine bar.
Following a review of Mr. Steinman?s request and related affidavit, the Court finds good cause exists to grant the requested resignation. Accordingly, it is hereby ORDERED:
Jonathan H. Steinman?s resignation from the Maine bar is accepted, pursuant to M. Bar R. 7.3(g)(3). As a result, thirty (30) days from the date of this Order, his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine.
It is now further ordered that if he has not already done so, Mr. Steinman shall file a notification affidavit as required by M. Bar R. 7.3(i)(1)(B), within thirty (30) days after the effective date of this resignation.
As required by M. Bar R. 7.3(g)(3), Mr. Steinman?s supporting Affidavit of December 18, 2013 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Mr. Steinman seek reinstatement to the Maine bar, however, that Affidavit may then be made public without further order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Edwin R. Jonas, III
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Docket No.: CRT# 13-301
Issued by: Grievance Commission
Date: March 21, 2014
Respondent: Edwin R. Jonas, III
Bar Number: 003553
Order: Reinstatement Recommended
Disposition/Conduct: Reinstatement Petition
REPORT OF FINDINGS AND RECOMMENDATIONS TO THE BOARD OF BAR OVERSEERS
The undersigned convened a hearing on March 4, 2014 concerning Petitioner Edwin R. Jonas III?s petition for reinstatement, pursuant to Maine Bar Rule 7.3(j)(5). Mr. Jonas appeared pro se; Bar Counsel was represented by Aria Eee, Esq. The panel received a number of exhibits offered by both the Petitioner and Bar Counsel. All were received in evidence, except for Petitioner?s Ex. 1, a fragment of a per curiam decision, not for publication without approval, Linda B. Jonas v. Edwin R. Jonas, III, date stamped Dec. 19, 1997, by the Superior Court of New Jersey, Appellate Division. Petitioner?s exhibits were not individually marked, but are referenced by description in the record of the hearing. Bar Counsel?s exhibits are numbered 1-22.
Petitioner is almost 66 years old. He graduated from Rutgers School of Law in Camden, NJ in May 1974, after serving with distinction in the United States Air Force. His father was an attorney for the Veterans Administration. He became licensed to practice law as follows: Pennsylvania (1974), New Jersey (1975), Maine (1987) and Florida (1991). Until 1995, his law practice was primarily in New Jersey, where he was an active and successful civil litigator, with a number of large commercial clients. His New Jersey license was suspended in 2005, as a result of proceedings described below in greater detail. His Florida license was suspended for one year, by an order dated October 10, 2007, after earlier being administratively suspended. The Florida suspension was based upon his misconduct in New Jersey. (Board Ex?s. 12, 13.) We have not been informed of the status of Petitioner?s Pennsylvania law license. His Maine law license was administratively suspended as a result of his failure to complete his annual registration in 1995.
In 1990, Petitioner?s marriage to Linda Jonas ended in divorce. That proceeding spawned ?one of the ugliest marital property disputes in Camden County?. Affidavit of Lawrence Engrissei, Esq., (para. 12). The divorcing couple also battled over custody of their three children, all boys. Unfortunately, the Jonas? strife over property, support and custody issues did not end with their divorce; it has continued with nearly unabated intensity ever since.
The narrative of Petitioner?s bar rule infractions begins on August 10, 1995, at a hearing before New Jersey Family Division Judge Robert Page. (These facts are meticulously recounted in a July 21, 2005 decision by a disciplinary review board of the Supreme Court of New Jersey, Board Exhibit 10.) Linda Jonas? motion to-show-cause alleged Petitioner was selling off assets, hiding funds in the Cayman Islands and preparing to abscond there with his sons. Petitioner denied these allegations and assured Judge Page that he would not leave the country or transfer/liquidate certain assets.
On September 15, 1995, Petitioner flew to the Cayman Islands with two of his sons, who remained there until September 25, 1995, following a hearing on September 21, 1995 at which Judge Page found Petitioner in violation of his August 10 order, and issued a bench warrant for his arrest. (Board Ex. 10, pp. 9-12.) At subsequent hearings on October 25 and 27, Judge Page ordered that Petitioner deliver $120,000 to his ex-wife?s counsel, to be held in escrow for alimony and child support, to execute deeds transferring his ownership of a 7-Eleven store, and his interest in homes in Medford, NJ and Florida to his ex-wife, to secure his future obligations for spousal and child support. The Court also prohibited him from contacting his children. (Board Ex. 10, pp. 13, 14.) After his release from arrest between Nov. 1 and 6, 1995, secured by compliance with the preceding orders and posting a bond, Petitioner relocated to Florida, where he practiced law until 2005. Judge Page ultimately imposed a constructive trust on Petitioner?s real property in New Jersey and Florida, for the benefit of his former spouse, ?to pay past-due obligations and to ensure compliance with future support obligations.? (Board Ex. 10, p. 17.)
After a lengthy delay in New Jersey?s bar disciplinary proceedings, which had to await final disposition of appeals in the matrimonial litigation, New Jersey?s Disciplinary Review Board issued a 42 page decision, culminating in an order suspending Petitioner?s law license for 6 months. The panel determined there was insufficient evidence of any misrepresentations to the court by Petitioner about selling his property or removing his children from the jurisdiction. However, the disciplinary review board found that he was guilty of conduct intended to disrupt a tribunal, and prejudicial to the administration of justice. (Board Ex. 10, p. 35.) The panel noted Petitioner?s ?flagrant disregard for court orders?, which it characterized as ?only a small sample of the mayhem that (he) caused in the Camden County Family Division..?. (Board Ex. 10, p. 40.)
At his hearing before our panel on March 4, 2014, Petitioner acknowledged and expressed regret for his violation of Judge Page?s orders. He noted that this conduct was a flagrant and unique discontinuity in a long and otherwise unblemished legal career. He explained his poor judgment in 1995 primarily as the culmination of a contentious and acrimonious relationship with his ex-wife and his fear of losing his relationship with his three sons. Petitioner also explained his exasperation with what he believed was a corrupt New Jersey judiciary that retaliated against him for his earlier testimony against the reappointment of another Family Court judge.
The panel concludes that Petitioner fully appreciates and sincerely regrets his misconduct in New Jersey?s Family Court. We conclude that similar misconduct by Petitioner is very unlikely to be repeated in the future.
Bar Counsel also notes that Petitioner has been involved in litigation in Florida, Montana, the United States Tax Court and most recently, again in New Jersey. The litigation in Montana appears to have directly or indirectly resulted from Linda Jonas? efforts to enforce a New Jersey judgment resulting from the divorce against cattle and ranch property Petitioner and his new wife own through a corporation situated in that state. (Board Exhibits 14-19.) According to Petitioner?s testimony, most of the difficulties and wasted efforts in the Montana litigation were the fault of his local attorney, who repeatedly missed deadlines and filing requirements. Petitioner is still pursuing a libel suit at the trial level in Montana, as well as a legal malpractice suit.
Mr. Jonas? Florida litigation centered on the duration of his suspension, and was only concerned with his misconduct in New Jersey?s Family Court.
Litigation before the U.S. Tax Court involved whether or not Petitioner properly took a substantial deduction for alimony. (Board Exhibit 23.) According to Petitioner, the Tax Court has not sought to enforce its claim for underpaid income taxes, pending resolution of Petitioner?s 38 page ?Amended Complaint for Legal Malpractice, Fraud and Violation of 42 U.S.C. 1983?, filed in New Jersey?s federal district court against Linda Jonas, her divorce lawyer Nancy Gold, and Gold?s law firm. (Respondent?s Exhibits.) (This lawsuit was originally filed as an adversary complaint in a Ch. 11 bankruptcy case brought in Montana, ultimately dismissed on procedural grounds. See last exhibit in Petitioner?s Exhibits.)
The panel does not believe it is necessary to await the disposition of the New Jersey lawsuit, or any other litigation to fairly dispose of this Petition for Reinstatement. Several affidavits submitted by Mr. Jonas, without Bar Counsel?s objection, attest to his good character and fitness to practice law, based on long professional and personal acquaintances. Petitioner?s Exhibits: Affidavit of Roderick Hannah, Esq (a Florida attorney); Affidavit of Peter J. Snyder, Esq. (a Florida attorney); Frederick Popovitch, Esq. (a New Jersey attorney); Lawrence Engrissei, Esq. (formerly an attorney in Pennsylvania and New Jersey, currently an insurance company executive).
In support of its concern regarding Petitioner?s past and ongoing litigation, Bar Counsel cites the Law Court?s denial of Thomas Mangan?s Petition for Reinstatement. In that case, the petitioner was disbarred and allowed to seek reinstatement after two years. He had misused client escrow funds, neglected legal matters entrusted to him, failed to account for receipts related to client matters and had a sexual relationship with a client that adversely affected the client?s case. Without minimizing Ed Jonas? transgressions in New Jersey, they are not comparable in seriousness to the reasons for Mangan?s disbarment.
Mangan?s post-disbarment misconduct included multiple lawsuits against a complaining witness, Bar Counsel and Associate Bar Counsel. (There were also several other serious infractions.) After his case was dismissed in state court, he renewed the litigation in federal court, appealing to the First Circuit. These suits, and his testimony to the Grievance Panel, ultimately showed that Mangan ?failed to accept responsibility for the loss of his license to practice.? (April 11, 2011 Order of Supreme Judicial Court, at p. 6.) By contrast, Ed Jonas has consistently and convincingly expressed remorse for disobeying the orders of Judge Page in 1995. Unlike Mr. Mangan, Jonas has never sought legal retribution against either Judge Page or the New Jersey Bar Discipinary Board.
While the purpose of Thomas Mangan?s lawsuits against Bar Counsel made little sense other than as a tool to exact personal revenge, Ed Jonas? litigation in every jurisdiction has had at least a plausible explanation and legitimate objective. With one minor exception, in a final Montana appellate decision, no court has found his conduct sanctionable. (Board Exhibit 18.) If our legal system permits and even encourages criminal convicts facing lengthy sentences or the death penalty to avail themselves of every legal avenue of redress, it should allow someone facing financial catastrophe, like this Petitioner, to avail himself of every plausible legal remedy.
Bar Counsel has also asserted that Petitioner improperly attempted to practice law in Montana, where he was unlicensed, by representing a corporation owned by himself and his wife. The corporation owned their cattle ranch. Petitioner alleges that he had a bona fide belief that he would be allowed to represent the family corporation as a pro se litigant. The fact that a court in Montana eventually rejected his position and required the corporation to hire a licensed attorney is in our view, a de minimis or technical violation of the prohibition against practicing law without a license.
Our review of the testimony and exhibits leads us to conclude and recommend Petitioner?s Petition for Reinstatement should be granted. Although Bar Counsel?s concerns are valid, we find that clear and convincing evidence supports the petition, taking into account all the requirements of the rule. We recommend that Petitioner?s reinstatement be conditioned on his payment of all costs still due the Florida and New Jersey bar disciplinary boards. We also recommend that the Board of Bar Overseers condition reinstatement on Petitioner?s providing a full response to Question 6 of Board Exhibit 4, a financial disclosure requirement. All Petitioner?s personal and corporate income tax records since 1995 should be produced for Bar Counsel?s review, and any final action on the petition should await Bar Counsel?s determination whether those records afford any new grounds to believe the Petitioner may be unfit to practice law in Maine.
Respectfully Submitted
Maurice Libner, Esq., Grievance Commission Chair
Clarke Hambley, Esq. Panel B Regular Member
Kenneth Roberts Panel B Lay Member
Board of Overseers of the Bar v. Caroline J. Gardiner
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Docket No.: BAR-14-4
Issued by: Maine Supreme Judicial Court
Date: March 25, 2014
Respondent: Caroline J. Gardiner
Bar Number: 006864
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
Order for Appointment of Limited Receiver M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, the Board of Overseers of the Bar (the Board) is appointed the Limited Receiver of (deceased attorney) Caroline J. Gardiner?s law practice. Pursuant to this Order, the Board shall:
As a service to the bar, the Board has agreed to serve as the Limited Receiver on a pro bono basis.
The Board shall act as Receiver until discharged by the Court either by Motion or in accordance with paragraph 3 of M. Bar R 7.3(f).
The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
The Board shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott D. Giese, Esq.
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Docket No.: BAR 13-17
Issued by: Maine Supreme Judicial Court
Date: April 4, 2014
Respondent: Scott D. Giese, Esq.
Bar Number: 004294
Order: Suspension
Disposition/Conduct: Diligence; Communication; Unreasonable/Excessive fee; Conduct that reflects adversely on the Lawyer's Honesty, Trustworthiness or Fitness; Conduct prejudicial to the Administration of Justice
ORDER of SUSPENSION
M. Bar R. 7.2(c)
By filing dated March 28, 2014 the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order temporarily suspending Scott D. Giese from the practice of law in the State of Maine. Included with the Board?s Petition was an Affidavit of Assistant Bar Counsel with related exhibits.
For good cause shown by the Board, Scott D. Giese appears to have committed numerous violations of the Maine Rules of Professional Conduct, thereby serving as an imminent threat to clients, the public and to the administration of justice. The Court finds that Attorney Giese?s actions constitute violations of at least M. R. of Prof. Conduct 1.3; 1.4(a); 1.5(a); and 8.4(a)(b)(d).
Accordingly, this Court ORDERS that Scott D. Giese be suspended from the practice of law in Maine until further Order of this Court. The Court also ORDERS that the Affidavit of Assistant Bar Counsel in this matter be sealed and impounded pending further Order of this Court. Finally, the Court ORDERS that the Board shall take no steps to initiate publication of this decision through any news release to the press.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR 13-20
Issued by: Maine Supreme Judicial Court
Date: April 4, 2014
Respondent: William B. Cote
Bar Number: 002892
Order: Receiver Discharge Order
Disposition/Conduct: Order for the winding down and closure of law office
ORDER
On February 25, 2014 the Court conducted a status conference with counsel for the parties and the Receiver, Andrucki & Associates.
Pursuant to the parties? agreement this Court ORDERS the following:
Justice Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Sally N. Mills, Esq.
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Docket No.: GCF# 13-158
Issued by: Grievance Commission
Date: March 27, 2014
Respondent: Sally N. Miills, Esq.
Bar Number: 009505
Order: Dismissal with Warning
Disposition/Conduct: Competence; Diligence; Communication
REPORT OF DISMISSAL WITH A WARNING PURSUANT TO BOARD REGULATION NO. 51
For good cause, based upon the terms set forth below, Panel D of the Grievance Commission of the Board of Overseers of the Bar ("the Panel") hereby issues a sanction of a public dismissal with a warning in this grievance matter pursuant to Board Regulation #51.
On November 13, 2013, the Panel reviewed Bar Counsel's investigation of this grievance complaint matter. It had been initiated by the complaint flled against Attorney Sally Mills by Correnia Austin on behalf of Frank McFarland, a resident at her assisted living center. The focus of Austin's complaint related to Mills' alleged failure to timely and properly handle McFarland's Special Needs Trust and his Social Security checks.
Upon that review, the Panel then agreed with Bar Counsel's recommendation and so directed that based upon Mills's apparent failure to timely and properly manage McFarland's accounts, and subsequent delay to appropriately initiate and complete her resignation as McFarland's Trustee, a disciplinary proceeding should take place .
Subsequent to that review, after Mills then retained an attorney, Phillip Johnson, additional facts and information were presented to Bar Counsel and thereafter to the Panel.
As a result of that additional information, it is now apparent to the Panel - as Mills agrees and regrets - that her failure to timely and properly handle McFarland's matters occurred due to Mills's paralegal's departure from employment at Mills' law fmn. That paralegal had had much more knowledge and familiarity with the specific and peculiar nature of McFarland's matters. Although Mills's practice normally involves family law and probate matters, she had not previously handled a probate trusteeship similar to the McFarland case. The McFarland file had been an ongoing matter in Mills's office for many years, and her paralegal's sudden departure presented Mills with a voluminous and unfamiliar flle to try to suddenly understand and manage. Thus, upon her paralegal's departure from her firm, Mills was not prepared and able to immediately handle McFarland's matter herself.
Shortly after her receipt of this grievance complaint, Mills offered to resign as McFarland's Trustee, but she did not believe that she should resign before having a successor in p lace. At the time, she did not understand that Austin would be able to serve as her succe ssor, and she was unsuccessful in fmding an alternative person to serve as successor. She eventually determined that Austin was both able and willing to serve as successor trustee, and on September 12, 2013 she filed the appropriate petition to have Austin appointed as that Trustee. Further circumstances caused more delay, but Austin's appointment as Trustee was so ordered by the Penobscot County Probate Court on January 2, 2014.
Based upon the above changed circumstances and description of Mills's minor misconduct, pursuant to Board Regulation 51 Attorney Johnson has requested that the Panel rescind its earlier directive for a disciplinary proceeding to occur, and to instead approve and impose a public nondisciplinary sanction.
Bar Counsel confirmed to the Panel that his office has recently contacted Austin and that she confirmed that the court-ordered replacement of Mills as the new and current Trustee for McFarland addressed her concerns in this matter. Austin had also verified that although she believes certain fees charged to McFarland by the Trust Protector in the replacement trustee approval process should be Mills's responsibility (a position which Bar Counsel has confirmed to the Panel he does not share), she otherwise has no objection to and agrees with a non-disciplinary dismissal with a warning being imposed in this matter.
Mills concedes that upon agreeing to serve as the Trustee for Frank McFarland, she was required and should have become personally familiar with the file(s) in that matter, and should not have delegated the handling and work of that matter solely to a non-lawyer assistant, her paralegal. Mills also agrees that should she be appointed to serve as a Trustee or in any other legal capacity in the future, she will do so in accordance with the competency and diligence requirements of the Maine Rules of Professional Conduct, and will not delegate sole responsibility to a non-lawyer assistant, unlike her performance in this matter.
The Panel remains concerned by the lengthy delay Mills took to move the McFarland matter forward after her assistant's departure from employment at Mills's law frrm, as well as by her repeated failure to properly respond to many of Bar Counsel's requests for information in the initial investigation of this grievance complaint.
Mills agrees that her conduct in this matter was in violation of M. R. Prof. Conduct l.l(competence); 1.3 (diligence); and 1.4(a) communication.
Based upon Mills's contrition and the steps she has recently taken to limit or lessen the harm or injury caused to McFarland, the Panel agrees with and adopts the parties' submitted stipulation for this matter to conclude with issuance of a dismissal with a warning upon Attorney Mills. Pursuan to M. Bar R. 7.1(e)(3)(B), the Panel finds that Mills? misconduct was minor, there was ultimately little injury to McFarland, and Mills is unlikely to engage in similar misconduct in the future.
As a result, based upon the above-described professional misconduct, the Panel now imposes the sanction of a public non-disciplinary dismissal with a warning upon Attorney Sally N. Mills. This Report of that dismissal with a warning shall be deemed to be a hearing order of the Grievance Commission for publication on the Board of Overseers of the Bar's website under Board Regulation 56.
James A. McKenna, Esq., Chair (for the entire Panel D)
Board of Overseers of the Bar v. Philip P. Mancini, Esq.
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Docket No.: GCF# 11-078
Issued by: Grievance Commission
Date: April 10, 2014
Respondent: Philip P. Mancini, Esq.
Bar Number: 003852
Order: Dismissal
Disposition/Conduct: No Misconduct
DECISION AND ORDER OF GRIEVANCE PANEL D
Panel D of the Maine Board of Bar Overseers Grievance Commission consisting of William Baghdoyan, Esq. (Chair), William Stokes, Esq. and Milton Wright commenced a public hearing on consolidated disciplinary petitions against the above-named respondent attorneys on December 16, 2013. The hearing was held over three days; December 16, and 17, 2013 and January 30, 2014. Phillip P. Mancini, Esq. was represented by James Martemucci, Esq.; Paul E. Peck, Esq. was represented by James Bowie, Esq.; Alexander W.P. Saksen was represented by Peter DeTroy, Esq. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee and Assistant Bar Counsel Alan Kelley. The hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(1). However, pursuant to a motion of the respondents, a protective order was issued by the Chair prohibiting the public access to a number of the respondents? exhibits and to testimony regarding those exhibits in order to protect attorney-client confidences.
The disciplinary petition was brought forward based upon a bar complaint filed on March 7, 2011 by Thomas A. Cox, Esq. and reviewed by a separate panel of the Grievance Commission, on October 25, 2011, which found probable cause that the respondents had engaged in misconduct subject to sanction under the Rules of Professional Conduct.
At the hearing, Board?s Exhibits #1 - 68 were admitted and respondents? exhibits #1 ? 70-A were admitted by agreement. Witnesses called by the Board were Thomas Cox, Esq., Respondents Saksen, Peck and Mancini, D.W., Esq. and A. B.S., Esq. Witnesses called by the Respondents were D.R., Esq. (who testified by video deposition by agreement of the parties) and C.D., Esq.
Testimony was concluded on the afternoon of January 30, 2014 followed by oral closing arguments of all of the parties. The hearing was concluded and the panel adjourned to deliberate.
Respondents Phillip P. Mancini, Paul E. Peck, and Alexander W.P. Saksen, were at all times relevant hereto attorneys duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. At the time of the alleged misconduct all three attorneys were employed at the law firm of Drummond & Drummond in Portland, Maine. Mr. Mancini was a partner who was designated as the firm?s ethics officer, Mr. Peck was a senior associate and the nominal head of the firm?s foreclosure practice group, and Mr. Saksen was an associate who was the most experienced of the three attorneys who were involved in the litigation of real estate foreclosure cases.
In 2009 and 2010, the firm was heavily engaged in foreclosure actions as counsel for plaintiff banks and finance companies. In mid-2010, the firm had over 130 cases in the foreclosure process where GMAC Mortgage, LLC (GMAC) was the plaintiff client of the firm, either as the holder of a mortgage or the servicer of a mortgage on behalf of another institution.
In the case of Federal National Mortgage Association v. Bradbury, Attorney Peck was the counsel of record when a Motion for Summary Judgment on behalf of the plaintiff was filed in August 2009. That motion was filed with a Statement of Material Facts which was supported by an affidavit of GMAC employee Jeffrey Stephan, whose position with GMAC was ?Limited Signing Officer.? That affidavit, which in identical or similar form was used in most of the GMAC foreclosure cases being litigated by Drummond & Drummond, asserted that Stephan had reviewed all of the critical documents, that he had personal knowledge of the facts asserted, and that he had signed and sworn to the affidavit in the presence of a Notary Public.
On June 7, 2010, Attorney Cox, representing the defendant Nicole Bradbury conducted a deposition of Jeffrey Stephan. Julia Pitney, Esq. an associate at Drummond & Drummond participated in the deposition via telephone link on behalf of GMAC. During the deposition Mr. Stephan testified that some of the statements he made in his affidavit were not actually true. He testified that he did not actually review all of the documentation in each foreclosure case filing, but only checked the figures with respect to payments made and amounts due on the mortgages. He also testified that he never actually signed and swore to his affidavits in the presence of a notary. This testimony raised the issue of whether all of the cases that had utilized Mr. Stephan?s affidavits in summary judgment motions contained false information not properly sworn to, thus resulting in false information being presented to the various courts where the cases were pending or had been processed.
Some brief information regarding the deposition was given to Paul Peck by Julia Pitney in a passing conversation either on the day of the deposition or shortly thereafter. On June 9, 2010, Attorney Cox had a phone conversation followed up by an e-mail exchange with Ben Campo, Esq., another junior associate at Drummond & Drummond about the problems revealed by the Stephan deposition. These exchanges were in regard to another case where the Stephan affidavit had been utilized in a motion for summary judgment, GMAC v. Ciraldo. On or about June 15, 2010, Attorney Cox filed an opposition to the plaintiff?s motion for summary judgment in the Ciraldo case and copied Attorney Campo with the motion and a copy of the transcript of the Stephan deposition. Thus an actual copy of the transcript of the Stephan deposition was in the possession of Drummond & Drummond by June 17, 2010.
In addition, persons unknown placed a copy of the Stephan deposition transcript on the internet on or about that same date, and it was seen by Julia Pitney and was brought to the attention of Paul Peck on that date. According to Mr. Peck?s testimony, it was the on-line version of the deposition transcript that he first saw, on June 17, 2010.
Mr. Peck?s initial response to the testimony in the Stephan deposition was that he couldn?t believe the testimony that Stephan gave regarding the fact that he didn?t actually review all the documentation and that he didn?t actually swear to and sign the affidavits in the presence of a notary, and that Peck thought that these statements would be corrected or changed in an ?errata? sheet, before the deposition became final. The panel finds it is not logical that an experienced attorney would consider that such material statements of a deposition witness would actually be substantially changed in an ?errata? sheet, which is designed to correct minor errors and clerical mistakes. Shock and disbelief that a GMAC official would operate in such a manner is understandable, but believing that this damaging testimony under oath would somehow be erased by an errata sheet is not.
After filing his motion in opposition to summary judgment in the Ciraldo case that included as an exhibit a copy of the Stephan deposition transcript, Attorney Cox contacted Attorney Horace Horton, a senior partner at Drummond & Drummond around June 25, 2010, by telephone and by letter, but was unable to actually talk to him. Cox then wrote a letter to Attorney Mancini on June 29, 2010 expressing his concerns about the problems with the Stephan affidavits as revealed in the deposition of June 7, 2010.
Upon receipt of the letter from Cox, Attorney Mancini, in his role as firm ethics officer, took several steps. He responded to Cox?s letter, although in a somewhat non-committal fashion; he contacted Attorney Paul Chaiken seeking advice, and convened a management committee meeting within a few days. That meeting determined that the firm should seek the formal advice of an outside attorney, which resulted in Attorney Daniel Rappaport being retained. A meeting with Rappaport was held on or about July 8, 2010, and a letter with formal advice on how to handle the problem was received from Attorney Rappaport on July 15, 2010. In addition, Attorney Mancini contacted Bar Counsel seeking advice on how to handle the situation.
The advice from Attorney Rappaport was largely adopted by Drummond & Drummond and Mancini and the management committee decided that the correct response would be to write letters to the clerks of court in each pending case, file an affidavit from an attorney at Drummond & Drummond outlining the problems with the Stephan affidavits, and file a new, properly executed supplemental affidavit in support of the motions for summary judgment that were pending in each case. In addition, in any cases where summary judgment had been granted to the plaintiffs but a foreclosure sale had not yet occurred, all sales were put on hold.
As the problem of the Stephan deposition and the affidavits he had produced was playing out in June and July 2010, Attorney Saksen had his own personal issues that caused him to be detached from business at the firm. Saksen had taken an extended leave of absence because of the expected birth of a child whom it was known before the birth would have significant health issues. He was absent for most of May and June, and was not back to a full work schedule even in July. As a result, he played a very small role in the firm?s response to the Stephan deposition problem. He was not part of the group of lawyers in the firm who decided what response would be made to try to correct the problem revealed by the Stephan deposition.
Attorney Saksen was the attorney of record in the case of U.S. Bank National Association v. James, however, and in that case he did file a reply brief to the defendant?s brief in opposition to the motion for summary judgment. This reply brief by Saksen was filed on June 16, 2010 without any indication to the court of a problem regarding Stephan?s affidavit, even though Saksen was aware of the problem regarding the affidavit prior to filing the reply brief, though he had not yet actually read the Stephan deposition.
Attorney Saksen was also the attorney who essentially implemented Drummond & Drummond?s plan to inform the various tribunals of the problem of the Stephan affidavits, although he did not participate in the decision as to how the firm would respond. Saksen drafted and sent the letters to the court clerks along with his own affidavit detailing the problem with the original Stephan affidavits, and included a new supplemental affidavit from Davida Hariott, another officer of GMAC. An example of the letters and affidavits sent to try to correct the problem and inform the tribunals is found in Board?s Exhibits 25-27. These documents were filed in the case of U.S. Bank National Association v. Ciraldo, a case pending in the Waldo County Superior Court, and were sent to the court on August 3, 2010.
Letters and affidavits such as those represented by Board?s Exhibits 25-27 were sent out in approximately 130 cases that Drummond & Drummond had pending in various courts. All were sent out around the first week of August 2010. However, there were a number of cases pending as of the time the problem of the Stephan affidavits became known to Drummond & Drummond where summary judgment proceeded against the defendants before any action was taken to inform the various courts of the defects in the Stephen affidavits that had been presented in support of the plaintiffs? motions for summary judgment. Respondents? Exhibit # 58 was a list prepared by Drummond & Drummond of all of the GMAC cases being handled by the firm at the time of the Stephan deposition of June 7, 2010. That list indicates that between the time of the Stephan deposition and the time that Drummond & Drummond began to send letters and new affidavits to the courts regarding the problems with Mr. Stephan?s affidavits, six cases where summary judgment motions were pending relying on Stephan affidavits proceeded to judgment for the plaintiffs, without the courts being notified of the faulty affidavits. In addition, seven new motions for summary judgment were filed between June 7, 2010 and June 22, 2010, apparently relying on the faulty Stephan affidavits, even though the firm was aware of the problem after the completion of the Stephan deposition on June 7, 2010.
There were at least four contested cases being litigated where counsel for defendants had filed opposition to summary judgment motions filed by the plaintiffs at the time of the Stephan deposition of June 7, 2010. The first case was that of Federal National Mortgage Association v. Bradbury, pending in the Bridgton District Court, the case in which the Stephan deposition was conducted by Attorney Cox. In that case, Drummond & Drummond was replaced as counsel for the plaintiff by the Pierce, Atwood law firm. Attorney Cox filed a motion to re-open the partial summary judgment that had already been granted in that case based upon the faulty Stephan affidavit. In September 2010 Judge Powers issued an order reversing the original summary judgment order, denied a subsequent summary judgment motion that had been filed by new plaintiff?s counsel, and issued sanctions against the plaintiff for the filing of the original false affidavit.
In U.S. Bank National Association v. Ciraldo, a case pending in the Waldo Superior Court, a motion for summary judgment had been filed by the plaintiff on April 25, 2010, utilizing a faulty Stephan affidavit in support of the statement of material facts. Paul Peck was listed as the lead attorney for the plaintiff, although the pleadings were signed by Julia Pitney. Attorney Cox filed an opposition to the plaintiff?s motion for summary judgment on June 16, 2010 in which he outlined the problems of the Stephan affidavit and attached a copy of the Stephan deposition. Settlement discussions ensued in this case after that date, but had not been concluded by August 3, 2010, so on that date Alexander Saksen filed his letter and new affidavits to the court clerk outlining the problems with the Stephan deposition. On October 10, 2010, Justice Hjelm, sitting in the Waldo Superior Court considered and denied the plaintiff?s motion for summary judgment, stating that under Rule 56 (h) he could not consider the new affidavit since the statement of material fact did not reference the new affidavits. This case was ultimately settled without further motions to the court.
In the case of U.S. Bank National Association v. James, pending in the United States District Court, Attorney Saksen filed a motion for summary judgment on behalf of the plaintiff on April 26, 2010 utilizing the faulty Stephan affidavit. On June 16, 2010 Saksen filed a reply to defendant?s opposition to the plaintiff?s motion for summary judgment in which no mention of the faulty Stephan affidavit was made, despite the fact Drummond & Drummond had been aware of the problems revealed during the Stephan deposition of June 7, 2010 in the Bradbury case. Defense counsel for James subsequently filed a motion for relief and sanctions based upon the false Stephan affidavit. Attorney Saksen withdrew from the case and was replaced by counsel from the Pierce, Atwood law firm on August 6, 2010, and apparently no notification to the court regarding the false statements in the Stephan affidavit was ever made to the Court by any attorney from Drummond & Drummond. Magistrate Judge Rich ultimately ruled that sanctions should be imposed against GMAC and ordered attorney?s fees be awarded to James for the costs of bringing the motion for sanctions and in opposing the original motion for summary judgment by the plaintiff. Judge Rich, however, refused to make a finding of contempt.
Finally, in the case of U.S. Bank National Association v. Holmes, the plaintiff?s motion for summary judgment was granted by the Belfast District Court on May 4, 2009, again based in part upon an affidavit made by Jeffrey Stephan from GMAC. Notice of a public auction based upon the judgment of foreclosure was mailed to the defendant Michael Holmes by the law firm of Drummond & Drummond on June 10, 2010, scheduling a foreclosure sale for July 1, 2010. This sale was apparently postponed as part of the firm?s response to the false Stephan affidavit, and a letter and new affidavits were sent to the clerk at the Belfast District Court on August 3, 2010.
The Board of Overseers petition regarding Attorney Mancini alleges that he violated his responsibility under Maine Rule of Professional Conduct 5.1 to make sure that lawyers under his supervision complied with Rules 3.3 and 8.4 pursuant to his role as the designated partner in the firm in charge of legal ethics. The allegation is basically that Mancini did not act quickly enough or with sufficient measures to inform the various courts where foreclosure cases were pending that the Stephan affidavits could not be relied upon as being truthful and properly executed.
Rule 5.1 (a) requires that ? A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall take reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.? Rule 5.1 (b) states that, ?A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.? The relevant sections of Rule 8.4 are 8.4 (c) & (d) which respectively provide it is professional misconduct for a lawyer to ?engage in conduct involving dishonesty, fraud, deceit or misrepresentation,? or to ?engage in conduct which is prejudicial to the administration of justice.? Rule 3.3, entitled ?Candor Toward the Tribunal,? states in pertinent part that, ?A lawyer shall not knowingly, offer evidence that is false. If a lawyer, the lawyer?s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including , if necessary, disclosure to the tribunal.? Rule 3.3 (a)(3). Therefore, the Board?s theory of violation on the part of Mancini is that he had a supervisory duty to make sure that Attorneys Saksen and Peck did not violate the rules by engaging in conduct prejudicial to the administration of justice by not taking reasonable remedial measures to disclose to the various tribunals the problems with the Stephan affidavits that had been tendered to the courts in support of the various motions for summary judgment.
Examining the actions taken by Mancini from the time he became aware of the problems, the panel does not find that he failed to take timely and reasonable remedial measures to rectify the problem posed by the Stephan affidavits. Within a day or two of learning of the deposition in which Stephan admitted he did not have personal knowledge of all of the items asserted in the affidavits and that he did not sign and swear to the affidavits in the presence of a notary, Attorney Mancini contacted Paul Chaiken, a lawyer of long experience for advice, and when Attorney Chaiken was unable to assist, Mancini then contacted Attorney Rappaport for advice. Mancini also contacted bar counsel to seek an advisory opinion and convened a meeting of partners of the firm to discuss the issue. A decision was made to formally retain Attorney Rappaport to obtain a legal opinion as to what action should be taken, and when that opinion was presented, it was implemented in a reasonably prompt manner. Although the remedial measures adopted did not include motions to the various courts asking that motions for summary judgment be withdrawn or for already granted motions to be overturned, the Rule requires only reasonable remedial measures that may include but are not necessarily required to include disclosure to the tribunal. The rule does not require the best possible means of disclosure to the tribunal if disclosure is needed, but only reasonable disclosure. While the panel believes that a better method of making disclosure to the various courts might have been by filing motions that would require action by the courts, it cannot find that the method of writing letters to the courts along with affidavits by Attorney Saksen and new affidavits properly executed by a different employee of GMAC was not a reasonable remedial measure. Because Attorney Mancini acted promptly as soon as he was aware of the problem, and because he did take reasonable, if not the best possible remedial measures, the panel concludes that Attorney Mancini did not violate any of the Rules of Professional Conduct cited by the Board. Therefore, the petition against Attorney Mancini is hereby dismissed.
The petition filed by the Board against Alexander Saksen alleges that he violated Rule 3.3 (a)(1)(3) and Rule 8.4 (a)(c)(d). These allegations essentially are that Saksen offered false material evidence to tribunals and that upon learning of its falsity, he failed to promptly take reasonable remedial action by disclosing the falsity to the tribunal. This would thus also be a violation of Rule 8.4 in that it would be a violation of other rules, it would be conduct that involved misrepresentation, and that all of this would be prejudicial to the administration of justice.
The Panel finds that Attorney Saksen did in fact violate these rules in that he did file at least one additional pleading in the case of U.S. Bank v. James after he had knowledge of the Stephan deposition and the problems with the Stephan affidavits that were being utilized in motions for summary judgment. A reply brief to the defendant?s brief in opposition to the plaintiff?s motion for summary judgment was filed under Saksen?s name on or about June 16, 2010 that made no mention of the faulty Stephan affidavit but continued to rely upon it. The Panel finds that Saksen should have made some attempt to inform the tribunal of the problem rather than filing an additional pleading after having knowledge of the Stephan problem. However, the Panel also finds that this violation was not of great consequence or harm since Drummond & Drummond was shortly thereafter replaced as counsel for the plaintiffs, the issue was brought to the attention of the court and punitive action was taken by the court regarding the faulty affidavit. In addition, the serious personal issues appropriately occupying Saksen?s attention during this time period are certainly a mitigating factor regarding this violation of the rules by Saksen. The family tragedy that he endured during this period of time kept him essentially out of the office and on the periphery of the Stephan affidavit problem. Therefore the Panel concludes that the misconduct is minor, there was little or no injury to a client, the public, the legal system or profession, and there is certainly little likelihood of a similar occurrence in the future. Under these circumstances the Panel believes that the appropriate action is a Dismissal with a Warning to Attorney Saksen.
Attorney Peck, though not officially designated as Chief of the foreclosure unit at Drummond & Drummond, essentially performed that function for the firm. As such he was the supervisor of the more junior attorneys such as Alexander Saksen, Julia Pitney and Ben Campo. As he testified, he was also considered to be the ?relationship manager? for many big clients such as GMAC. In that role he was the attorney who was primarily responsible to ensure that the firm?s extensive residential foreclosure practice functioned properly and that an appropriate relationship with large corporate clients such as GMAC was maintained. Attorney Peck was informed of the startling revelations of the June 7, 2010 deposition of Jeffrey Stephan either the same day it occurred or shortly thereafter. Though it is clear that he did not immediately recognize the full implications of the testimony contained in that deposition, the Panel finds that Attorney Peck should have much more quickly focused on the significance of the Stephan deposition and should have acted more promptly to ensure that no further use of the Stephan affidavits was made, and that remedial actions were taken. Despite Attorney Peck?s testimony that an immediate hold was put on further summary judgment motions and on foreclosure sales where judgment had already been obtained, the respondents? own exhibits show the contrary. Respondents? Exhibit # 58 indicates that between the time of the Stephan deposition and the time that Drummond & Drummond began to send letters and new affidavits to the courts regarding the problems with Mr. Stephan?s affidavits, six cases where summary judgment motions were pending relying on Stephan affidavits proceeded to judgment for the plaintiffs, without the courts being notified of the faulty affidavits. In addition, seven new motions for summary judgment were filed between June 7, 2010 and June 23, 2010, relying on the faulty Stephan affidavits. Attorney Peck had the knowledge of a very serious problem with the affidavits being used by his foreclosure group in motions for summary judgment but did not take immediate and effective action to prevent the continued use of false material evidence in multiple cases in several courts. Although the Panel believes that Attorney Peck honestly failed to appreciate the seriousness and the full impact of the Stephan deposition and the faulty Stephan affidavits until sometime in July, he nonetheless had the knowledge available to him and failed to act to prevent the continued use and reliance on the Stephan affidavits in at least 13 cases mentioned above that were contained within Respondents? Exhibit # 58. In particular, the panel is concerned regarding the filing of 7 additional motions for summary judgment relying on the Stephan affidavits subsequent to the Stephan deposition of June 7, 2010. As such, at least with respect to those cases during the period from June 7, 2010 through June 23, 2010, the Panel finds that Attorney Peck was in violation of Rule 3.3 (a)(3) and 8.4 (d).
Though the Panel does not believe that there is any likelihood of a repetition of such conduct by Attorney Peck, the Panel does not believe that this misconduct was minor and believes that there was injury to the public and to the legal system. Therefore the Panel finds that the appropriate disposition of this Petition regarding Attorney Peck is a Public Reprimand and such a Public Reprimand is so ordered.
William Baghdoyan, Esq. Chair
William Stokes, Esq.
Milton Wright
Board of Overseers of the Bar v. Paul E. Peck, Esq.
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Docket No.: GCF# 11-079
Issued by: Grievance Commission
Date: April 10, 2014
Respondent: Paul E. Peck, Esq.
Bar Number: 003527
Order: Decision and Order
Disposition/Conduct: (Vacated by 1/15/2015 Decision and Order issued by the Court)
DECISION AND ORDER OF GRIEVANCE PANEL D
Panel D of the Maine Board of Bar Overseers Grievance Commission consisting of William Baghdoyan, Esq. (Chair), William Stokes, Esq. and Milton Wright commenced a public hearing on consolidated disciplinary petitions against the above-named respondent attorneys on December 16, 2013. The hearing was held over three days; December 16, and 17, 2013 and January 30, 2014. Phillip P. Mancini, Esq. was represented by James Martemucci, Esq.; Paul E. Peck, Esq. was represented by James Bowie, Esq.; Alexander W.P. Saksen was represented by Peter DeTroy, Esq. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee and Assistant Bar Counsel Alan Kelley. The hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(1). However, pursuant to a motion of the respondents, a protective order was issued by the Chair prohibiting the public access to a number of the respondents? exhibits and to testimony regarding those exhibits in order to protect attorney-client confidences.
The disciplinary petition was brought forward based upon a bar complaint filed on March 7, 2011 by Thomas A. Cox, Esq. and reviewed by a separate panel of the Grievance Commission, on October 25, 2011, which found probable cause that the respondents had engaged in misconduct subject to sanction under the Rules of Professional Conduct.
At the hearing, Board?s Exhibits #1 - 68 were admitted and respondents? exhibits #1 ? 70-A were admitted by agreement. Witnesses called by the Board were Thomas Cox, Esq., Respondents Saksen, Peck and Mancini, D.W., Esq. and A. B.S., Esq. Witnesses called by the Respondents were D.R., Esq. (who testified by video deposition by agreement of the parties) and C.D., Esq.
Testimony was concluded on the afternoon of January 30, 2014 followed by oral closing arguments of all of the parties. The hearing was concluded and the panel adjourned to deliberate.
Respondents Phillip P. Mancini, Paul E. Peck, and Alexander W.P. Saksen, were at all times relevant hereto attorneys duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. At the time of the alleged misconduct all three attorneys were employed at the law firm of Drummond & Drummond in Portland, Maine. Mr. Mancini was a partner who was designated as the firm?s ethics officer, Mr. Peck was a senior associate and the nominal head of the firm?s foreclosure practice group, and Mr. Saksen was an associate who was the most experienced of the three attorneys who were involved in the litigation of real estate foreclosure cases.
In 2009 and 2010, the firm was heavily engaged in foreclosure actions as counsel for plaintiff banks and finance companies. In mid-2010, the firm had over 130 cases in the foreclosure process where GMAC Mortgage, LLC (GMAC) was the plaintiff client of the firm, either as the holder of a mortgage or the servicer of a mortgage on behalf of another institution.
In the case of Federal National Mortgage Association v. Bradbury, Attorney Peck was the counsel of record when a Motion for Summary Judgment on behalf of the plaintiff was filed in August 2009. That motion was filed with a Statement of Material Facts which was supported by an affidavit of GMAC employee Jeffrey Stephan, whose position with GMAC was ?Limited Signing Officer.? That affidavit, which in identical or similar form was used in most of the GMAC foreclosure cases being litigated by Drummond & Drummond, asserted that Stephan had reviewed all of the critical documents, that he had personal knowledge of the facts asserted, and that he had signed and sworn to the affidavit in the presence of a Notary Public.
On June 7, 2010, Attorney Cox, representing the defendant Nicole Bradbury conducted a deposition of Jeffrey Stephan. Julia Pitney, Esq. an associate at Drummond & Drummond participated in the deposition via telephone link on behalf of GMAC. During the deposition Mr. Stephan testified that some of the statements he made in his affidavit were not actually true. He testified that he did not actually review all of the documentation in each foreclosure case filing, but only checked the figures with respect to payments made and amounts due on the mortgages. He also testified that he never actually signed and swore to his affidavits in the presence of a notary. This testimony raised the issue of whether all of the cases that had utilized Mr. Stephan?s affidavits in summary judgment motions contained false information not properly sworn to, thus resulting in false information being presented to the various courts where the cases were pending or had been processed.
Some brief information regarding the deposition was given to Paul Peck by Julia Pitney in a passing conversation either on the day of the deposition or shortly thereafter. On June 9, 2010, Attorney Cox had a phone conversation followed up by an e-mail exchange with Ben Campo, Esq., another junior associate at Drummond & Drummond about the problems revealed by the Stephan deposition. These exchanges were in regard to another case where the Stephan affidavit had been utilized in a motion for summary judgment, GMAC v. Ciraldo. On or about June 15, 2010, Attorney Cox filed an opposition to the plaintiff?s motion for summary judgment in the Ciraldo case and copied Attorney Campo with the motion and a copy of the transcript of the Stephan deposition. Thus an actual copy of the transcript of the Stephan deposition was in the possession of Drummond & Drummond by June 17, 2010.
In addition, persons unknown placed a copy of the Stephan deposition transcript on the internet on or about that same date, and it was seen by Julia Pitney and was brought to the attention of Paul Peck on that date. According to Mr. Peck?s testimony, it was the on-line version of the deposition transcript that he first saw, on June 17, 2010.
Mr. Peck?s initial response to the testimony in the Stephan deposition was that he couldn?t believe the testimony that Stephan gave regarding the fact that he didn?t actually review all the documentation and that he didn?t actually swear to and sign the affidavits in the presence of a notary, and that Peck thought that these statements would be corrected or changed in an ?errata? sheet, before the deposition became final. The panel finds it is not logical that an experienced attorney would consider that such material statements of a deposition witness would actually be substantially changed in an ?errata? sheet, which is designed to correct minor errors and clerical mistakes. Shock and disbelief that a GMAC official would operate in such a manner is understandable, but believing that this damaging testimony under oath would somehow be erased by an errata sheet is not.
After filing his motion in opposition to summary judgment in the Ciraldo case that included as an exhibit a copy of the Stephan deposition transcript, Attorney Cox contacted Attorney Horace Horton, a senior partner at Drummond & Drummond around June 25, 2010, by telephone and by letter, but was unable to actually talk to him. Cox then wrote a letter to Attorney Mancini on June 29, 2010 expressing his concerns about the problems with the Stephan affidavits as revealed in the deposition of June 7, 2010.
Upon receipt of the letter from Cox, Attorney Mancini, in his role as firm ethics officer, took several steps. He responded to Cox?s letter, although in a somewhat non-committal fashion; he contacted Attorney Paul Chaiken seeking advice, and convened a management committee meeting within a few days. That meeting determined that the firm should seek the formal advice of an outside attorney, which resulted in Attorney Daniel Rappaport being retained. A meeting with Rappaport was held on or about July 8, 2010, and a letter with formal advice on how to handle the problem was received from Attorney Rappaport on July 15, 2010. In addition, Attorney Mancini contacted Bar Counsel seeking advice on how to handle the situation.
The advice from Attorney Rappaport was largely adopted by Drummond & Drummond and Mancini and the management committee decided that the correct response would be to write letters to the clerks of court in each pending case, file an affidavit from an attorney at Drummond & Drummond outlining the problems with the Stephan affidavits, and file a new, properly executed supplemental affidavit in support of the motions for summary judgment that were pending in each case. In addition, in any cases where summary judgment had been granted to the plaintiffs but a foreclosure sale had not yet occurred, all sales were put on hold.
As the problem of the Stephan deposition and the affidavits he had produced was playing out in June and July 2010, Attorney Saksen had his own personal issues that caused him to be detached from business at the firm. Saksen had taken an extended leave of absence because of the expected birth of a child whom it was known before the birth would have significant health issues. He was absent for most of May and June, and was not back to a full work schedule even in July. As a result, he played a very small role in the firm?s response to the Stephan deposition problem. He was not part of the group of lawyers in the firm who decided what response would be made to try to correct the problem revealed by the Stephan deposition.
Attorney Saksen was the attorney of record in the case of U.S. Bank National Association v. James, however, and in that case he did file a reply brief to the defendant?s brief in opposition to the motion for summary judgment. This reply brief by Saksen was filed on June 16, 2010 without any indication to the court of a problem regarding Stephan?s affidavit, even though Saksen was aware of the problem regarding the affidavit prior to filing the reply brief, though he had not yet actually read the Stephan deposition.
Attorney Saksen was also the attorney who essentially implemented Drummond & Drummond?s plan to inform the various tribunals of the problem of the Stephan affidavits, although he did not participate in the decision as to how the firm would respond. Saksen drafted and sent the letters to the court clerks along with his own affidavit detailing the problem with the original Stephan affidavits, and included a new supplemental affidavit from Davida Hariott, another officer of GMAC. An example of the letters and affidavits sent to try to correct the problem and inform the tribunals is found in Board?s Exhibits 25-27. These documents were filed in the case of U.S. Bank National Association v. Ciraldo, a case pending in the Waldo County Superior Court, and were sent to the court on August 3, 2010.
Letters and affidavits such as those represented by Board?s Exhibits 25-27 were sent out in approximately 130 cases that Drummond & Drummond had pending in various courts. All were sent out around the first week of August 2010. However, there were a number of cases pending as of the time the problem of the Stephan affidavits became known to Drummond & Drummond where summary judgment proceeded against the defendants before any action was taken to inform the various courts of the defects in the Stephen affidavits that had been presented in support of the plaintiffs? motions for summary judgment. Respondents? Exhibit # 58 was a list prepared by Drummond & Drummond of all of the GMAC cases being handled by the firm at the time of the Stephan deposition of June 7, 2010. That list indicates that between the time of the Stephan deposition and the time that Drummond & Drummond began to send letters and new affidavits to the courts regarding the problems with Mr. Stephan?s affidavits, six cases where summary judgment motions were pending relying on Stephan affidavits proceeded to judgment for the plaintiffs, without the courts being notified of the faulty affidavits. In addition, seven new motions for summary judgment were filed between June 7, 2010 and June 22, 2010, apparently relying on the faulty Stephan affidavits, even though the firm was aware of the problem after the completion of the Stephan deposition on June 7, 2010.
There were at least four contested cases being litigated where counsel for defendants had filed opposition to summary judgment motions filed by the plaintiffs at the time of the Stephan deposition of June 7, 2010. The first case was that of Federal National Mortgage Association v. Bradbury, pending in the Bridgton District Court, the case in which the Stephan deposition was conducted by Attorney Cox. In that case, Drummond & Drummond was replaced as counsel for the plaintiff by the Pierce, Atwood law firm. Attorney Cox filed a motion to re-open the partial summary judgment that had already been granted in that case based upon the faulty Stephan affidavit. In September 2010 Judge Powers issued an order reversing the original summary judgment order, denied a subsequent summary judgment motion that had been filed by new plaintiff?s counsel, and issued sanctions against the plaintiff for the filing of the original false affidavit.
In U.S. Bank National Association v. Ciraldo, a case pending in the Waldo Superior Court, a motion for summary judgment had been filed by the plaintiff on April 25, 2010, utilizing a faulty Stephan affidavit in support of the statement of material facts. Paul Peck was listed as the lead attorney for the plaintiff, although the pleadings were signed by Julia Pitney. Attorney Cox filed an opposition to the plaintiff?s motion for summary judgment on June 16, 2010 in which he outlined the problems of the Stephan affidavit and attached a copy of the Stephan deposition. Settlement discussions ensued in this case after that date, but had not been concluded by August 3, 2010, so on that date Alexander Saksen filed his letter and new affidavits to the court clerk outlining the problems with the Stephan deposition. On October 10, 2010, Justice Hjelm, sitting in the Waldo Superior Court considered and denied the plaintiff?s motion for summary judgment, stating that under Rule 56 (h) he could not consider the new affidavit since the statement of material fact did not reference the new affidavits. This case was ultimately settled without further motions to the court.
In the case of U.S. Bank National Association v. James, pending in the United States District Court, Attorney Saksen filed a motion for summary judgment on behalf of the plaintiff on April 26, 2010 utilizing the faulty Stephan affidavit. On June 16, 2010 Saksen filed a reply to defendant?s opposition to the plaintiff?s motion for summary judgment in which no mention of the faulty Stephan affidavit was made, despite the fact Drummond & Drummond had been aware of the problems revealed during the Stephan deposition of June 7, 2010 in the Bradbury case. Defense counsel for James subsequently filed a motion for relief and sanctions based upon the false Stephan affidavit. Attorney Saksen withdrew from the case and was replaced by counsel from the Pierce, Atwood law firm on August 6, 2010, and apparently no notification to the court regarding the false statements in the Stephan affidavit was ever made to the Court by any attorney from Drummond & Drummond. Magistrate Judge Rich ultimately ruled that sanctions should be imposed against GMAC and ordered attorney?s fees be awarded to James for the costs of bringing the motion for sanctions and in opposing the original motion for summary judgment by the plaintiff. Judge Rich, however, refused to make a finding of contempt.
Finally, in the case of U.S. Bank National Association v. Holmes, the plaintiff?s motion for summary judgment was granted by the Belfast District Court on May 4, 2009, again based in part upon an affidavit made by Jeffrey Stephan from GMAC. Notice of a public auction based upon the judgment of foreclosure was mailed to the defendant Michael Holmes by the law firm of Drummond & Drummond on June 10, 2010, scheduling a foreclosure sale for July 1, 2010. This sale was apparently postponed as part of the firm?s response to the false Stephan affidavit, and a letter and new affidavits were sent to the clerk at the Belfast District Court on August 3, 2010.
The Board of Overseers petition regarding Attorney Mancini alleges that he violated his responsibility under Maine Rule of Professional Conduct 5.1 to make sure that lawyers under his supervision complied with Rules 3.3 and 8.4 pursuant to his role as the designated partner in the firm in charge of legal ethics. The allegation is basically that Mancini did not act quickly enough or with sufficient measures to inform the various courts where foreclosure cases were pending that the Stephan affidavits could not be relied upon as being truthful and properly executed.
Rule 5.1 (a) requires that ? A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall take reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.? Rule 5.1 (b) states that, ?A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.? The relevant sections of Rule 8.4 are 8.4 (c) & (d) which respectively provide it is professional misconduct for a lawyer to ?engage in conduct involving dishonesty, fraud, deceit or misrepresentation,? or to ?engage in conduct which is prejudicial to the administration of justice.? Rule 3.3, entitled ?Candor Toward the Tribunal,? states in pertinent part that, ?A lawyer shall not knowingly, offer evidence that is false. If a lawyer, the lawyer?s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including , if necessary, disclosure to the tribunal.? Rule 3.3 (a)(3). Therefore, the Board?s theory of violation on the part of Mancini is that he had a supervisory duty to make sure that Attorneys Saksen and Peck did not violate the rules by engaging in conduct prejudicial to the administration of justice by not taking reasonable remedial measures to disclose to the various tribunals the problems with the Stephan affidavits that had been tendered to the courts in support of the various motions for summary judgment.
Examining the actions taken by Mancini from the time he became aware of the problems, the panel does not find that he failed to take timely and reasonable remedial measures to rectify the problem posed by the Stephan affidavits. Within a day or two of learning of the deposition in which Stephan admitted he did not have personal knowledge of all of the items asserted in the affidavits and that he did not sign and swear to the affidavits in the presence of a notary, Attorney Mancini contacted Paul Chaiken, a lawyer of long experience for advice, and when Attorney Chaiken was unable to assist, Mancini then contacted Attorney Rappaport for advice. Mancini also contacted bar counsel to seek an advisory opinion and convened a meeting of partners of the firm to discuss the issue. A decision was made to formally retain Attorney Rappaport to obtain a legal opinion as to what action should be taken, and when that opinion was presented, it was implemented in a reasonably prompt manner. Although the remedial measures adopted did not include motions to the various courts asking that motions for summary judgment be withdrawn or for already granted motions to be overturned, the Rule requires only reasonable remedial measures that may include but are not necessarily required to include disclosure to the tribunal. The rule does not require the best possible means of disclosure to the tribunal if disclosure is needed, but only reasonable disclosure. While the panel believes that a better method of making disclosure to the various courts might have been by filing motions that would require action by the courts, it cannot find that the method of writing letters to the courts along with affidavits by Attorney Saksen and new affidavits properly executed by a different employee of GMAC was not a reasonable remedial measure. Because Attorney Mancini acted promptly as soon as he was aware of the problem, and because he did take reasonable, if not the best possible remedial measures, the panel concludes that Attorney Mancini did not violate any of the Rules of Professional Conduct cited by the Board. Therefore, the petition against Attorney Mancini is hereby dismissed.
The petition filed by the Board against Alexander Saksen alleges that he violated Rule 3.3 (a)(1)(3) and Rule 8.4 (a)(c)(d). These allegations essentially are that Saksen offered false material evidence to tribunals and that upon learning of its falsity, he failed to promptly take reasonable remedial action by disclosing the falsity to the tribunal. This would thus also be a violation of Rule 8.4 in that it would be a violation of other rules, it would be conduct that involved misrepresentation, and that all of this would be prejudicial to the administration of justice.
The Panel finds that Attorney Saksen did in fact violate these rules in that he did file at least one additional pleading in the case of U.S. Bank v. James after he had knowledge of the Stephan deposition and the problems with the Stephan affidavits that were being utilized in motions for summary judgment. A reply brief to the defendant?s brief in opposition to the plaintiff?s motion for summary judgment was filed under Saksen?s name on or about June 16, 2010 that made no mention of the faulty Stephan affidavit but continued to rely upon it. The Panel finds that Saksen should have made some attempt to inform the tribunal of the problem rather than filing an additional pleading after having knowledge of the Stephan problem. However, the Panel also finds that this violation was not of great consequence or harm since Drummond & Drummond was shortly thereafter replaced as counsel for the plaintiffs, the issue was brought to the attention of the court and punitive action was taken by the court regarding the faulty affidavit. In addition, the serious personal issues appropriately occupying Saksen?s attention during this time period are certainly a mitigating factor regarding this violation of the rules by Saksen. The family tragedy that he endured during this period of time kept him essentially out of the office and on the periphery of the Stephan affidavit problem. Therefore the Panel concludes that the misconduct is minor, there was little or no injury to a client, the public, the legal system or profession, and there is certainly little likelihood of a similar occurrence in the future. Under these circumstances the Panel believes that the appropriate action is a Dismissal with a Warning to Attorney Saksen.
Attorney Peck, though not officially designated as Chief of the foreclosure unit at Drummond & Drummond, essentially performed that function for the firm. As such he was the supervisor of the more junior attorneys such as Alexander Saksen, Julia Pitney and Ben Campo. As he testified, he was also considered to be the ?relationship manager? for many big clients such as GMAC. In that role he was the attorney who was primarily responsible to ensure that the firm?s extensive residential foreclosure practice functioned properly and that an appropriate relationship with large corporate clients such as GMAC was maintained. Attorney Peck was informed of the startling revelations of the June 7, 2010 deposition of Jeffrey Stephan either the same day it occurred or shortly thereafter. Though it is clear that he did not immediately recognize the full implications of the testimony contained in that deposition, the Panel finds that Attorney Peck should have much more quickly focused on the significance of the Stephan deposition and should have acted more promptly to ensure that no further use of the Stephan affidavits was made, and that remedial actions were taken. Despite Attorney Peck?s testimony that an immediate hold was put on further summary judgment motions and on foreclosure sales where judgment had already been obtained, the respondents? own exhibits show the contrary. Respondents? Exhibit # 58 indicates that between the time of the Stephan deposition and the time that Drummond & Drummond began to send letters and new affidavits to the courts regarding the problems with Mr. Stephan?s affidavits, six cases where summary judgment motions were pending relying on Stephan affidavits proceeded to judgment for the plaintiffs, without the courts being notified of the faulty affidavits. In addition, seven new motions for summary judgment were filed between June 7, 2010 and June 23, 2010, relying on the faulty Stephan affidavits. Attorney Peck had the knowledge of a very serious problem with the affidavits being used by his foreclosure group in motions for summary judgment but did not take immediate and effective action to prevent the continued use of false material evidence in multiple cases in several courts. Although the Panel believes that Attorney Peck honestly failed to appreciate the seriousness and the full impact of the Stephan deposition and the faulty Stephan affidavits until sometime in July, he nonetheless had the knowledge available to him and failed to act to prevent the continued use and reliance on the Stephan affidavits in at least 13 cases mentioned above that were contained within Respondents? Exhibit # 58. In particular, the panel is concerned regarding the filing of 7 additional motions for summary judgment relying on the Stephan affidavits subsequent to the Stephan deposition of June 7, 2010. As such, at least with respect to those cases during the period from June 7, 2010 through June 23, 2010, the Panel finds that Attorney Peck was in violation of Rule 3.3 (a)(3) and 8.4 (d).
Though the Panel does not believe that there is any likelihood of a repetition of such conduct by Attorney Peck, the Panel does not believe that this misconduct was minor and believes that there was injury to the public and to the legal system. Therefore the Panel finds that the appropriate disposition of this Petition regarding Attorney Peck is a Public Reprimand and such a Public Reprimand is so ordered.
William Baghdoyan, Esq. Chair
William Stokes, Esq.
Milton Wright
Board of Overseers of the Bar v. Alexander W. P. Saksen, Esq.
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Docket No.: GCF# 11-080
Issued by: Grievance Commission
Date: April 10, 2014
Respondent: Alexander W. P. Saksen, Esq.
Bar Number: 004220
Order: Dismissal with Warning
Disposition/Conduct: Candor to the Tribunal; Conduct Prejudicial to the Administration of Justice
DECISION AND ORDER OF GRIEVANCE PANEL D
Panel D of the Maine Board of Bar Overseers Grievance Commission consisting of William Baghdoyan, Esq. (Chair), William Stokes, Esq. and Milton Wright commenced a public hearing on consolidated disciplinary petitions against the above-named respondent attorneys on December 16, 2013. The hearing was held over three days; December 16, and 17, 2013 and January 30, 2014. Phillip P. Mancini, Esq. was represented by James Martemucci, Esq.; Paul E. Peck, Esq. was represented by James Bowie, Esq.; Alexander W.P. Saksen was represented by Peter DeTroy, Esq. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Aria Eee and Assistant Bar Counsel Alan Kelley. The hearing was open to the public pursuant to Maine Bar Rule 7.1(e)(1). However, pursuant to a motion of the respondents, a protective order was issued by the Chair prohibiting the public access to a number of the respondents? exhibits and to testimony regarding those exhibits in order to protect attorney-client confidences.
The disciplinary petition was brought forward based upon a bar complaint filed on March 7, 2011 by Thomas A. Cox, Esq. and reviewed by a separate panel of the Grievance Commission, on October 25, 2011, which found probable cause that the respondents had engaged in misconduct subject to sanction under the Rules of Professional Conduct.
At the hearing, Board?s Exhibits #1 - 68 were admitted and respondents? exhibits #1 ? 70-A were admitted by agreement. Witnesses called by the Board were Thomas Cox, Esq., Respondents Saksen, Peck and Mancini, D.W., Esq. and A. B.S., Esq. Witnesses called by the Respondents were D.R., Esq. (who testified by video deposition by agreement of the parties) and C.D., Esq.
Testimony was concluded on the afternoon of January 30, 2014 followed by oral closing arguments of all of the parties. The hearing was concluded and the panel adjourned to deliberate.
Respondents Phillip P. Mancini, Paul E. Peck, and Alexander W.P. Saksen, were at all times relevant hereto attorneys duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. At the time of the alleged misconduct all three attorneys were employed at the law firm of Drummond & Drummond in Portland, Maine. Mr. Mancini was a partner who was designated as the firm?s ethics officer, Mr. Peck was a senior associate and the nominal head of the firm?s foreclosure practice group, and Mr. Saksen was an associate who was the most experienced of the three attorneys who were involved in the litigation of real estate foreclosure cases.
In 2009 and 2010, the firm was heavily engaged in foreclosure actions as counsel for plaintiff banks and finance companies. In mid-2010, the firm had over 130 cases in the foreclosure process where GMAC Mortgage, LLC (GMAC) was the plaintiff client of the firm, either as the holder of a mortgage or the servicer of a mortgage on behalf of another institution.
In the case of Federal National Mortgage Association v. Bradbury, Attorney Peck was the counsel of record when a Motion for Summary Judgment on behalf of the plaintiff was filed in August 2009. That motion was filed with a Statement of Material Facts which was supported by an affidavit of GMAC employee Jeffrey Stephan, whose position with GMAC was ?Limited Signing Officer.? That affidavit, which in identical or similar form was used in most of the GMAC foreclosure cases being litigated by Drummond & Drummond, asserted that Stephan had reviewed all of the critical documents, that he had personal knowledge of the facts asserted, and that he had signed and sworn to the affidavit in the presence of a Notary Public.
On June 7, 2010, Attorney Cox, representing the defendant Nicole Bradbury conducted a deposition of Jeffrey Stephan. Julia Pitney, Esq. an associate at Drummond & Drummond participated in the deposition via telephone link on behalf of GMAC. During the deposition Mr. Stephan testified that some of the statements he made in his affidavit were not actually true. He testified that he did not actually review all of the documentation in each foreclosure case filing, but only checked the figures with respect to payments made and amounts due on the mortgages. He also testified that he never actually signed and swore to his affidavits in the presence of a notary. This testimony raised the issue of whether all of the cases that had utilized Mr. Stephan?s affidavits in summary judgment motions contained false information not properly sworn to, thus resulting in false information being presented to the various courts where the cases were pending or had been processed.
Some brief information regarding the deposition was given to Paul Peck by Julia Pitney in a passing conversation either on the day of the deposition or shortly thereafter. On June 9, 2010, Attorney Cox had a phone conversation followed up by an e-mail exchange with Ben Campo, Esq., another junior associate at Drummond & Drummond about the problems revealed by the Stephan deposition. These exchanges were in regard to another case where the Stephan affidavit had been utilized in a motion for summary judgment, GMAC v. Ciraldo. On or about June 15, 2010, Attorney Cox filed an opposition to the plaintiff?s motion for summary judgment in the Ciraldo case and copied Attorney Campo with the motion and a copy of the transcript of the Stephan deposition. Thus an actual copy of the transcript of the Stephan deposition was in the possession of Drummond & Drummond by June 17, 2010.
In addition, persons unknown placed a copy of the Stephan deposition transcript on the internet on or about that same date, and it was seen by Julia Pitney and was brought to the attention of Paul Peck on that date. According to Mr. Peck?s testimony, it was the on-line version of the deposition transcript that he first saw, on June 17, 2010.
Mr. Peck?s initial response to the testimony in the Stephan deposition was that he couldn?t believe the testimony that Stephan gave regarding the fact that he didn?t actually review all the documentation and that he didn?t actually swear to and sign the affidavits in the presence of a notary, and that Peck thought that these statements would be corrected or changed in an ?errata? sheet, before the deposition became final. The panel finds it is not logical that an experienced attorney would consider that such material statements of a deposition witness would actually be substantially changed in an ?errata? sheet, which is designed to correct minor errors and clerical mistakes. Shock and disbelief that a GMAC official would operate in such a manner is understandable, but believing that this damaging testimony under oath would somehow be erased by an errata sheet is not.
After filing his motion in opposition to summary judgment in the Ciraldo case that included as an exhibit a copy of the Stephan deposition transcript, Attorney Cox contacted Attorney Horace Horton, a senior partner at Drummond & Drummond around June 25, 2010, by telephone and by letter, but was unable to actually talk to him. Cox then wrote a letter to Attorney Mancini on June 29, 2010 expressing his concerns about the problems with the Stephan affidavits as revealed in the deposition of June 7, 2010.
Upon receipt of the letter from Cox, Attorney Mancini, in his role as firm ethics officer, took several steps. He responded to Cox?s letter, although in a somewhat non-committal fashion; he contacted Attorney Paul Chaiken seeking advice, and convened a management committee meeting within a few days. That meeting determined that the firm should seek the formal advice of an outside attorney, which resulted in Attorney Daniel Rappaport being retained. A meeting with Rappaport was held on or about July 8, 2010, and a letter with formal advice on how to handle the problem was received from Attorney Rappaport on July 15, 2010. In addition, Attorney Mancini contacted Bar Counsel seeking advice on how to handle the situation.
The advice from Attorney Rappaport was largely adopted by Drummond & Drummond and Mancini and the management committee decided that the correct response would be to write letters to the clerks of court in each pending case, file an affidavit from an attorney at Drummond & Drummond outlining the problems with the Stephan affidavits, and file a new, properly executed supplemental affidavit in support of the motions for summary judgment that were pending in each case. In addition, in any cases where summary judgment had been granted to the plaintiffs but a foreclosure sale had not yet occurred, all sales were put on hold.
As the problem of the Stephan deposition and the affidavits he had produced was playing out in June and July 2010, Attorney Saksen had his own personal issues that caused him to be detached from business at the firm. Saksen had taken an extended leave of absence because of the expected birth of a child whom it was known before the birth would have significant health issues. He was absent for most of May and June, and was not back to a full work schedule even in July. As a result, he played a very small role in the firm?s response to the Stephan deposition problem. He was not part of the group of lawyers in the firm who decided what response would be made to try to correct the problem revealed by the Stephan deposition.
Attorney Saksen was the attorney of record in the case of U.S. Bank National Association v. James, however, and in that case he did file a reply brief to the defendant?s brief in opposition to the motion for summary judgment. This reply brief by Saksen was filed on June 16, 2010 without any indication to the court of a problem regarding Stephan?s affidavit, even though Saksen was aware of the problem regarding the affidavit prior to filing the reply brief, though he had not yet actually read the Stephan deposition.
Attorney Saksen was also the attorney who essentially implemented Drummond & Drummond?s plan to inform the various tribunals of the problem of the Stephan affidavits, although he did not participate in the decision as to how the firm would respond. Saksen drafted and sent the letters to the court clerks along with his own affidavit detailing the problem with the original Stephan affidavits, and included a new supplemental affidavit from Davida Hariott, another officer of GMAC. An example of the letters and affidavits sent to try to correct the problem and inform the tribunals is found in Board?s Exhibits 25-27. These documents were filed in the case of U.S. Bank National Association v. Ciraldo, a case pending in the Waldo County Superior Court, and were sent to the court on August 3, 2010.
Letters and affidavits such as those represented by Board?s Exhibits 25-27 were sent out in approximately 130 cases that Drummond & Drummond had pending in various courts. All were sent out around the first week of August 2010. However, there were a number of cases pending as of the time the problem of the Stephan affidavits became known to Drummond & Drummond where summary judgment proceeded against the defendants before any action was taken to inform the various courts of the defects in the Stephen affidavits that had been presented in support of the plaintiffs? motions for summary judgment. Respondents? Exhibit # 58 was a list prepared by Drummond & Drummond of all of the GMAC cases being handled by the firm at the time of the Stephan deposition of June 7, 2010. That list indicates that between the time of the Stephan deposition and the time that Drummond & Drummond began to send letters and new affidavits to the courts regarding the problems with Mr. Stephan?s affidavits, six cases where summary judgment motions were pending relying on Stephan affidavits proceeded to judgment for the plaintiffs, without the courts being notified of the faulty affidavits. In addition, seven new motions for summary judgment were filed between June 7, 2010 and June 22, 2010, apparently relying on the faulty Stephan affidavits, even though the firm was aware of the problem after the completion of the Stephan deposition on June 7, 2010.
There were at least four contested cases being litigated where counsel for defendants had filed opposition to summary judgment motions filed by the plaintiffs at the time of the Stephan deposition of June 7, 2010. The first case was that of Federal National Mortgage Association v. Bradbury, pending in the Bridgton District Court, the case in which the Stephan deposition was conducted by Attorney Cox. In that case, Drummond & Drummond was replaced as counsel for the plaintiff by the Pierce, Atwood law firm. Attorney Cox filed a motion to re-open the partial summary judgment that had already been granted in that case based upon the faulty Stephan affidavit. In September 2010 Judge Powers issued an order reversing the original summary judgment order, denied a subsequent summary judgment motion that had been filed by new plaintiff?s counsel, and issued sanctions against the plaintiff for the filing of the original false affidavit.
In U.S. Bank National Association v. Ciraldo, a case pending in the Waldo Superior Court, a motion for summary judgment had been filed by the plaintiff on April 25, 2010, utilizing a faulty Stephan affidavit in support of the statement of material facts. Paul Peck was listed as the lead attorney for the plaintiff, although the pleadings were signed by Julia Pitney. Attorney Cox filed an opposition to the plaintiff?s motion for summary judgment on June 16, 2010 in which he outlined the problems of the Stephan affidavit and attached a copy of the Stephan deposition. Settlement discussions ensued in this case after that date, but had not been concluded by August 3, 2010, so on that date Alexander Saksen filed his letter and new affidavits to the court clerk outlining the problems with the Stephan deposition. On October 10, 2010, Justice Hjelm, sitting in the Waldo Superior Court considered and denied the plaintiff?s motion for summary judgment, stating that under Rule 56 (h) he could not consider the new affidavit since the statement of material fact did not reference the new affidavits. This case was ultimately settled without further motions to the court.
In the case of U.S. Bank National Association v. James, pending in the United States District Court, Attorney Saksen filed a motion for summary judgment on behalf of the plaintiff on April 26, 2010 utilizing the faulty Stephan affidavit. On June 16, 2010 Saksen filed a reply to defendant?s opposition to the plaintiff?s motion for summary judgment in which no mention of the faulty Stephan affidavit was made, despite the fact Drummond & Drummond had been aware of the problems revealed during the Stephan deposition of June 7, 2010 in the Bradbury case. Defense counsel for James subsequently filed a motion for relief and sanctions based upon the false Stephan affidavit. Attorney Saksen withdrew from the case and was replaced by counsel from the Pierce, Atwood law firm on August 6, 2010, and apparently no notification to the court regarding the false statements in the Stephan affidavit was ever made to the Court by any attorney from Drummond & Drummond. Magistrate Judge Rich ultimately ruled that sanctions should be imposed against GMAC and ordered attorney?s fees be awarded to James for the costs of bringing the motion for sanctions and in opposing the original motion for summary judgment by the plaintiff. Judge Rich, however, refused to make a finding of contempt.
Finally, in the case of U.S. Bank National Association v. Holmes, the plaintiff?s motion for summary judgment was granted by the Belfast District Court on May 4, 2009, again based in part upon an affidavit made by Jeffrey Stephan from GMAC. Notice of a public auction based upon the judgment of foreclosure was mailed to the defendant Michael Holmes by the law firm of Drummond & Drummond on June 10, 2010, scheduling a foreclosure sale for July 1, 2010. This sale was apparently postponed as part of the firm?s response to the false Stephan affidavit, and a letter and new affidavits were sent to the clerk at the Belfast District Court on August 3, 2010.
The Board of Overseers petition regarding Attorney Mancini alleges that he violated his responsibility under Maine Rule of Professional Conduct 5.1 to make sure that lawyers under his supervision complied with Rules 3.3 and 8.4 pursuant to his role as the designated partner in the firm in charge of legal ethics. The allegation is basically that Mancini did not act quickly enough or with sufficient measures to inform the various courts where foreclosure cases were pending that the Stephan affidavits could not be relied upon as being truthful and properly executed.
Rule 5.1 (a) requires that ? A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall take reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.? Rule 5.1 (b) states that, ?A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.? The relevant sections of Rule 8.4 are 8.4 (c) & (d) which respectively provide it is professional misconduct for a lawyer to ?engage in conduct involving dishonesty, fraud, deceit or misrepresentation,? or to ?engage in conduct which is prejudicial to the administration of justice.? Rule 3.3, entitled ?Candor Toward the Tribunal,? states in pertinent part that, ?A lawyer shall not knowingly, offer evidence that is false. If a lawyer, the lawyer?s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including , if necessary, disclosure to the tribunal.? Rule 3.3 (a)(3). Therefore, the Board?s theory of violation on the part of Mancini is that he had a supervisory duty to make sure that Attorneys Saksen and Peck did not violate the rules by engaging in conduct prejudicial to the administration of justice by not taking reasonable remedial measures to disclose to the various tribunals the problems with the Stephan affidavits that had been tendered to the courts in support of the various motions for summary judgment.
Examining the actions taken by Mancini from the time he became aware of the problems, the panel does not find that he failed to take timely and reasonable remedial measures to rectify the problem posed by the Stephan affidavits. Within a day or two of learning of the deposition in which Stephan admitted he did not have personal knowledge of all of the items asserted in the affidavits and that he did not sign and swear to the affidavits in the presence of a notary, Attorney Mancini contacted Paul Chaiken, a lawyer of long experience for advice, and when Attorney Chaiken was unable to assist, Mancini then contacted Attorney Rappaport for advice. Mancini also contacted bar counsel to seek an advisory opinion and convened a meeting of partners of the firm to discuss the issue. A decision was made to formally retain Attorney Rappaport to obtain a legal opinion as to what action should be taken, and when that opinion was presented, it was implemented in a reasonably prompt manner. Although the remedial measures adopted did not include motions to the various courts asking that motions for summary judgment be withdrawn or for already granted motions to be overturned, the Rule requires only reasonable remedial measures that may include but are not necessarily required to include disclosure to the tribunal. The rule does not require the best possible means of disclosure to the tribunal if disclosure is needed, but only reasonable disclosure. While the panel believes that a better method of making disclosure to the various courts might have been by filing motions that would require action by the courts, it cannot find that the method of writing letters to the courts along with affidavits by Attorney Saksen and new affidavits properly executed by a different employee of GMAC was not a reasonable remedial measure. Because Attorney Mancini acted promptly as soon as he was aware of the problem, and because he did take reasonable, if not the best possible remedial measures, the panel concludes that Attorney Mancini did not violate any of the Rules of Professional Conduct cited by the Board. Therefore, the petition against Attorney Mancini is hereby dismissed.
The petition filed by the Board against Alexander Saksen alleges that he violated Rule 3.3 (a)(1)(3) and Rule 8.4 (a)(c)(d). These allegations essentially are that Saksen offered false material evidence to tribunals and that upon learning of its falsity, he failed to promptly take reasonable remedial action by disclosing the falsity to the tribunal. This would thus also be a violation of Rule 8.4 in that it would be a violation of other rules, it would be conduct that involved misrepresentation, and that all of this would be prejudicial to the administration of justice.
The Panel finds that Attorney Saksen did in fact violate these rules in that he did file at least one additional pleading in the case of U.S. Bank v. James after he had knowledge of the Stephan deposition and the problems with the Stephan affidavits that were being utilized in motions for summary judgment. A reply brief to the defendant?s brief in opposition to the plaintiff?s motion for summary judgment was filed under Saksen?s name on or about June 16, 2010 that made no mention of the faulty Stephan affidavit but continued to rely upon it. The Panel finds that Saksen should have made some attempt to inform the tribunal of the problem rather than filing an additional pleading after having knowledge of the Stephan problem. However, the Panel also finds that this violation was not of great consequence or harm since Drummond & Drummond was shortly thereafter replaced as counsel for the plaintiffs, the issue was brought to the attention of the court and punitive action was taken by the court regarding the faulty affidavit. In addition, the serious personal issues appropriately occupying Saksen?s attention during this time period are certainly a mitigating factor regarding this violation of the rules by Saksen. The family tragedy that he endured during this period of time kept him essentially out of the office and on the periphery of the Stephan affidavit problem. Therefore the Panel concludes that the misconduct is minor, there was little or no injury to a client, the public, the legal system or profession, and there is certainly little likelihood of a similar occurrence in the future. Under these circumstances the Panel believes that the appropriate action is a Dismissal with a Warning to Attorney Saksen.
Attorney Peck, though not officially designated as Chief of the foreclosure unit at Drummond & Drummond, essentially performed that function for the firm. As such he was the supervisor of the more junior attorneys such as Alexander Saksen, Julia Pitney and Ben Campo. As he testified, he was also considered to be the ?relationship manager? for many big clients such as GMAC. In that role he was the attorney who was primarily responsible to ensure that the firm?s extensive residential foreclosure practice functioned properly and that an appropriate relationship with large corporate clients such as GMAC was maintained. Attorney Peck was informed of the startling revelations of the June 7, 2010 deposition of Jeffrey Stephan either the same day it occurred or shortly thereafter. Though it is clear that he did not immediately recognize the full implications of the testimony contained in that deposition, the Panel finds that Attorney Peck should have much more quickly focused on the significance of the Stephan deposition and should have acted more promptly to ensure that no further use of the Stephan affidavits was made, and that remedial actions were taken. Despite Attorney Peck?s testimony that an immediate hold was put on further summary judgment motions and on foreclosure sales where judgment had already been obtained, the respondents? own exhibits show the contrary. Respondents? Exhibit # 58 indicates that between the time of the Stephan deposition and the time that Drummond & Drummond began to send letters and new affidavits to the courts regarding the problems with Mr. Stephan?s affidavits, six cases where summary judgment motions were pending relying on Stephan affidavits proceeded to judgment for the plaintiffs, without the courts being notified of the faulty affidavits. In addition, seven new motions for summary judgment were filed between June 7, 2010 and June 23, 2010, relying on the faulty Stephan affidavits. Attorney Peck had the knowledge of a very serious problem with the affidavits being used by his foreclosure group in motions for summary judgment but did not take immediate and effective action to prevent the continued use of false material evidence in multiple cases in several courts. Although the Panel believes that Attorney Peck honestly failed to appreciate the seriousness and the full impact of the Stephan deposition and the faulty Stephan affidavits until sometime in July, he nonetheless had the knowledge available to him and failed to act to prevent the continued use and reliance on the Stephan affidavits in at least 13 cases mentioned above that were contained within Respondents? Exhibit # 58. In particular, the panel is concerned regarding the filing of 7 additional motions for summary judgment relying on the Stephan affidavits subsequent to the Stephan deposition of June 7, 2010. As such, at least with respect to those cases during the period from June 7, 2010 through June 23, 2010, the Panel finds that Attorney Peck was in violation of Rule 3.3 (a)(3) and 8.4 (d).
Though the Panel does not believe that there is any likelihood of a repetition of such conduct by Attorney Peck, the Panel does not believe that this misconduct was minor and believes that there was injury to the public and to the legal system. Therefore the Panel finds that the appropriate disposition of this Petition regarding Attorney Peck is a Public Reprimand and such a Public Reprimand is so ordered.
William Baghdoyan, Esq. Chair
William Stokes, Esq.
Milton Wright
Board of Overseers of the Bar v. Ronald E. Hoffman
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Docket No.: BAR-13-6
Issued by: Maine Supreme Judicial Court
Date: April 17, 2014
Respondent: Ronald E. Hoffman
Bar Number: 008593
Order: Resignation
Disposition/Conduct: Resignation
ORDER M. Bar R. 7.3(g)(3)
Attorney Ronald E. Hoffman, originally admitted to practice in Maine in 1997, is subject to the conditions of the Court?s Order & Decision of September 30, 2013. This matter is now before the Court to consider his voluntary letter of resignation submitted by Hoffman, through his counsel, pursuant to M. Bar R. 7.3(g). Hoffman?s letter of resignation is supported by his Affidavit dated March 20, 2014.
On March 26, 2014 the Board of Overseers of the Bar considered this matter and unanimously recommended that the Court accept Hoffman?s resignation from the Maine bar pursuant to the terms of Bar Rules 7.3(g) and 7.3(j)(1).
After conducting a hearing on April 16, 2014, the Court ORDERS:
Pursuant to M. Bar R. 7.3(g)(3), Ronald E. Hoffman?s resignation from the Maine bar is accepted, effective May 19, 2014. By that date of May 19, 2014, Hoffman shall comply with and certify to the Court and to the Board of Overseers of the Bar his completion of all notification reporting requirements specified in M. Bar R. 7.3(i)(1).
As required by M. Bar R. 7.3(g)(3), Hoffman?s supporting Affidavit dated March 20, 2014 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Hoffman seek reinstatement to the Maine bar, that Affidavit may then be made public without further order of the Court. This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
Donald G. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott D. Giese
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Docket No.: BAR-13-17
Issued by: Maine Supreme Judicial Court
Date: April 22, 2014
Respondent: Scott D. Giese
Bar Number: 004294
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
Order for Appointment of Limited Receiver M. Bar R. 7.3(f)(1)
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 7.3(f), the Court Orders the following:
As of this date, the Board of Overseers of the Bar (the Board) is appointed the Limited Receiver of (suspended attorney) Scott D. Giese?s law practice. Pursuant to this Order, the Board shall:
The Board shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Once Mr. Giese is served with this Order or otherwise becomes aware of it, neither he (nor his agents) shall tamper with or alter any files. Additionally, neither Mr. Giese (nor his agents) shall remove anything from those client files. Mr. Giese and his agents shall otherwise cooperate with any request by the Board or its Bar Counsel to assist with the surrender, delivery and disposition of his files.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. James Scott Wheeler
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Docket No.: GCF# 13-036
Issued by: Grievance Commission
Date: April 23, 2014
Respondent: James Scott Wheeler
Bar Number: 004335
Order: Reprimand
Disposition/Conduct: Failure to file an affidavit attesting compliance with the provisions of M.B.R. 7.3(i)(2); Failure to respond to a lawful demand for information from a disciplinary authority
FINDINGS AND ORDER OF PANEL D OF THE GRIEVANCE COMMISSION M. Bar. R. 7.1(e)
Introduction
On March 24, 2014, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Bar Rule 7.1 (e) concerning misconduct by Respondent James Scott Wheeler. The Board of Overseers of the Bar ("Board") commenced this proceeding by docketing on or about January 29, 2013 a sua sponte Grievance Complaint.
This Complaint was precipitated by the following actions by Mr. Wheeler, who had ceased practicing law in Maine:
As a result of these Rule violations, the Board imposed on Mr. Wheeler a summary administrative suspension.
The Board's Grievance Complaint was then docketed when Mr. Wheeler failed to file with the Board the end-of-practice affidavit required by Bar Rule 7.3(i)(2)(A-B). This Rule required Mr. Wheeler to detail in an affidavit the names and addresses of all clients, attorneys, courts, administrative agencies and private dispute resolution forums to whom he had sent notice of his suspension, together with a copy of the text of the notices sent.
Hearing
The Board effected service on Mr. Wheeler of the Petition and Summons as required Maine Bar Rule 7.1(e)(1), effective January 14, 2014. Although Mr. Wheeler acknowledged service he failed to file the required written response. Therefore, pursuant to Maine Bar Rule 7.1(e)(1) the alleged facts were taken as admitted and the Panel considered only whether Mr. Wheeler should be sanctioned.
The hearing was held on March 24, 2014. The Board was represented by Alan P. Kelley, Assistant Bar Counsel. The Panel was James A. McKenna, Esq., Chair, Mary A. Denison, Esq. and Emilie van Eeghen. Mr. Wheeler attended via telephone from Clam Gulch, Alaska and was placed under oath. Board Exhibits 1 through 7, including the Disciplinary Petition, were admitted without objection.
Via telephone, Mr. Wheeler described his decision to cease practicing law in Maine and return to Alaska. He described his efforts to properly close up his practice. He did not contest that his notification of clients did not meet the requirements of Bar Rule 7.3(i)(2)(A-B). This Rule required Mr. Wheeler to affirm in an affidavit a listing of the names and addresses of all clients, attorneys, courts, administrative agencies and private dispute resolution forums to whom notice that he was no longer practicing law was sent, together with a copy of the text of the notices sent.
Public Reprimand
Because Mr. Williams failed to file a written response to the Board's Petition and Summons, the Grievance Panel's hearing was limited to deciding the proper disposition. See Maine Bar Rule 7.1(e)(1). The Panel believes that the client notices required by Bar Rule 7.3(i)(2) and the affidavit affirming that they had been sent are important safeguards for an attorney's clients.
The purpose of a bar disciplinary proceeding is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar R. 2(a). In considering an appropriate sanction under the Bar Rules, the Panel must consider the following factors set forth in M. Bar R. 7.1(e)(3)(C):
The Board believes that an attorney's proper notice to clients when ceasing to practice law is an essential safeguard to the clients' interests. For these reasons the Panel issues a Public Reprimand to attorney James Scott Wheeler.
James A. McKenna, Esq.
Emilie van Eeghan, Public Member
Mary A. Denison, Esq.
Board of Overseers of the Bar v. Christopher G. Limberis, Esq.
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Docket No.: BAR-14-7
Issued by: Maine Supreme Judicial Court
Date: April 23, 2014
Respondent: Christopher G. Limberis, Esq.
Bar Number: 000946
Order: Receiver Appointment
Disposition/Conduct: Appointment of Proxy
Order for Appointment of Proxy M. Bar R. 7.3(f)(1)
Upon the April 14, 2014 request for Appointment of Proxy filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Gregory P. Dorr is appointed as the Proxy of Christopher G. Limberis? law practice. As such Attorney Dorr shall have the sole authority to:
As a service to the bar, Attorney Dorr acknowledges that he shall serve as Proxy on a pro bono basis, although if there are sufficient assets (including receivables) from Attorney Limberis? law practice, Attorney Dorr may be reimbursed from those assets. The Proxy shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, the Proxy shall submit an itemized list of any disbursements made to effect the terms of this Order. Attorney Limberis and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Limberis, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Dorr shall act as Proxy until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Attorney Dorr so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney Dorr may be engaged by any former client of Attorney Limberis provided that the Proxy informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Proxy?s employment by the client.
The Proxy is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client?s retention of the Proxy as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Dorr shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within ninety (90) days of this Order, the Proxy shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Assistant Bar Counsel Aria Eee, Esq.
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Steven J. Lyman, Esq.
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Docket No.: GCF-13-237
Issued by: Grievance Commission
Date: May 30, 2014
Respondent: Steven J. Lyman, Esq.
Bar Number: 001099
Order: Dismissal with Warning
Disposition/Conduct: Failure to retain disputed funds and property until after settlement of dispute; Engaging in conduct prejudicial to the administration of justice
REPORT OF PANEL A OF THE GRIEVANCE COMMISSION
On May 21, 2014, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, Steven J. Lyman, Esq. of Southwest Harbor, Maine. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar Counsel dated February 11, 2014, alleging violations of M. R. of Prof. Conduct 1.15(d)(e), 4.1, 4.2(a) and 8.4(a)(c)(d).
At the disciplinary hearing, the Board was represented by Bar Counsel Alan P. Kelley, Esq. and Respondent was present and represented by Marvin H. Glazier, Esq. and Jane S.E. Clayton, Esq. Joint exhibits marked Board Exh. 1 ? 21 were admitted without objection. The Panel heard testimony from the following witnesses:
Steven J. Lyman, Esq.
Daniel A. Pileggi, Esq.
Sandra Y. Gray
This matter stems from a disagreement between Sandra Gray who was the principal owner of Village Wash Tub Limited Partners and Jose Feliciano who was the principal owner of Village Wash Tub LLC. There was a great deal of distrust between the parties. Mr. Feliciano, who was represented by Mr. Lyman, filed a Complaint for Forcible Entry and Detainer seeking to evict Ms. Gray because she was in arrears in the payment of rent. The matter was set for hearing on April 25, 2013. Ms. Gray was present at the court house on April 25, 2013 and was represented by counsel. Mr. Lyman and Ms. Gray?s counsel worked with their clients (in separate rooms) to come to an agreement for resolution of the issues between Mr. Feliciano and Ms. Gray. The hearing was continued and the matter was later dismissed.
Ms. Gray testified that the agreement reached on April 25th as she understood it, was:
?The mortgage was going to be shortened by 10 years, and I was going to move out of the apartment by June 15th and any liability from either party was going to be released prior to that date and there was also going to be a money settlement. One of the notes that was due on September 30th, I was to get half of that up front on June 15...?
On April 25, 2013, Mr. Feliciano wrote a check to Mr. Lyman for $4,000 which Mr. Lyman deposited in his client trust account. Ms. Gray?s counsel drafted a Settlement Agreement and Mutual Release (Board Exhibit #6) and emailed it to Mr. Lyman on April 29, 2013. The Agreement required Mr. Feliciano to deposit funds with Mr. Lyman prior to the agreement?s execution. Mr. Lyman testified that he had a telephone conversation with Ms. Gray?s attorney prior to June 15, 2013 in which each attorney represented that his client did not want to sign the Settlement Agreement and Mutual Release until the other party had signed it. However, Mr. Lyman testified that he told Ms. Gray?s attorney that he would have (or did have) Mr. Feliciano execute the Settlement Agreement and Mutual Release and the Allonge on June 14.
Testimony about a series of emails and telephone calls and messages that were exchanged on June 14th demonstrates the miscommunication which was happening between Mr. Lyman and Ms. Gray?s counsel. Mr. Lyman testified that obtaining a release from Ms. Gray was critical to his client, but his emails do not mention the importance of signed releases. Unfortunately, Ms. Gray?s attorney did not know that she had signed the Settlement Agreement and Mutual Release on June 6, 2013 (when she received a copy of the Allonge in the mail) and therefore he did not communicate to Mr. Lyman that a signed Agreement existed. Ms. Gray moved out of the apartment on June 15th, but June 15th passed without signed Settlement Agreements and Mutual Releases being exchanged by the parties. Unfortunately, June 15th was a Saturday.
Mr. Feliciano demanded the return of his $4,000 from Mr. Lyman on June 17, 2013 and Mr. Lyman testified that he felt that he had no choice but to return his client?s funds because he was not aware that both parties had signed separate Settlement Agreements and Mutual Releases. He testified that he believed that signed releases by June 15th were a part of the agreement and this belief is supported by Ms. Gray?s testimony (??any liability from either party was going to be released prior to that date??) He testified that he believed a signed agreement would have created an escrow arrangement but that otherwise, the $4,000 was his client?s money. Ms. Gray?s attorney testified that he does not remember using escrow language in their conversation, but that Mr. Lyman ?was going to hold his client?s money to show good faith in proceeding with the deal.?
Ms. Gray?s attorney helped her to prepare the Attorney Grievance Complaint Form (Board Exhibit #1) naming Mr. Lyman as Respondent (signed on July 10, 2013), but she hired a new attorney to complete the agreement that had been negotiated on April 25, 2013. She received the benefits negotiated in the Agreement, except that she did not have the benefit of the early payment of $3,600 and she paid her new attorney $3,000.
M.R.Prof. Conduct 1.15(e)
The Board alleges that Mr. Lyman violated M.R.Prof. Conduct 1.15(e) by returning his client?s money to him when Ms. Gray claimed an interest in the funds. By June 15, 2013, the parties had taken steps to follow through with the April 25, 2013 oral agreement ? Mr. Feliciano had set aside money and Ms. Gray had moved out of her apartment. But, as affirmed by Ms. Gray, a part of the agreement was that liability was to have been released by that date. Because of confusion not wholly caused by Mr. Lyman, to the best of Mr. Lyman?s knowledge, releases of liability did not occur by June 15. He believed that Mr. Feliciano had the right to demand the return of his money. M.R.Prof. Conduct 1.15(d) would require prompt delivery of funds to which he was entitled. However, because of her counsel?s representations on June 14, 2013, Mr. Lyman was also aware that Ms. Gray was claiming an interest in the funds he was holding. M.R.Prof. Conduct 1.15(e) required that he protect the funds until the matter was resolved.
M.R.Prof. Conduct 4.1 and M.R.Prof. Conduct 4.2
The panel finds that Bar Counsel did not meet its burden of proof to establish by a preponderance of the evidence that Mr. Lyman engaged in misconduct subject to sanction under Maine Rule of Professional Conduct 4.1 or Maine Rule of Professional Conduct 4.2.
M.R.Prof. Conduct 8.4
The Board alleges that Mr. Lyman?s conduct violates Maine Rule of Professional Conduct 8.4. Ms. Gray?s counsel testified that he felt that he had been fooled by Mr. Lyman and that the lawyers had bound their clients to follow through with the negotiated agreement. Ms. Gray?s counsel relied on statements like Mr. Lyman?s June 14, 2013 3:13 p.m. email indicating, ?I am holding the $3,600 in my Client Trust Account but that, of course, will not be released until she moves out tomorrow. As I have previously stated, Mr. Feliciano agrees with your draft Release?? (Board Exhibit #12) By not emphasizing the critical need for a signed release by June 15, 2013 in the email communication and then breaking the trust that was placed in him by Ms. Gray?s attorney by releasing the funds to which Ms. Gray was claiming an interest, Mr. Lyman has engaged in conduct that was prejudicial to the administration of justice.
Based upon the petition, admitted exhibits, and testimony presented at the hearing, pursuant to M. Bar R. 7.1, the panel concludes that misconduct subject to sanction has occurred in the violation of M.R.Prof. Conduct 1.15(e) and M.R.Prof. Conduct 8.4. The panel finds that an appropriate sanction in this matter would be dismissal with a warning pursuant to M. Bar R. 7.1(e)(3)(B):
As a result, based upon the above-described professional misconduct, the Panel now issues the sanction of a public non-disciplinary dismissal with a warning upon Steven J. Lyman, Esq. pursuant to M. Bar R. 7.1(e)(3)(B).
Grievance Panel A
Sarah McPartland-Good, Esq., Acting Chair
Cynthia M. Mehnert, Esq.
Dissent:
Public Member Norman Ross feels that the appropriate resolution would be a public reprimand because of the clear violation of M.R.Prof.Conduct 1.15(e). Mr. Lyman knew that there was a dispute over how the $3,600 would be distributed, and he used poor judgment in releasing it ($4,000) to Mr. Feliciano. He testified in the hearing that he wished he had not done so. Ms. Gray as a result felt betrayed and went for several months and further personal expense to retrieve those funds. Ms. Gray should expect that an attorney licensed in the State of Maine would use forcefulness and wisdom in controlling the progress of her situation, in this case to minimize the consequences of her impatience and that of the one who wanted her out of ?his? apartment. Mr. Lyman used misdirected focus and ignorance of his code of conduct.
Norman Ross, Public Member
Board of Overseers of the Bar v. Allan W. Hanson
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Docket No.: Bar-13-21
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 2, 2014
Respondent: Allan W. Hanson
Bar Number: 006814
Order: Suspension
Disposition/Conduct: Failure to provide competent representation; Failure to act with reasonable diligence; Failure to reasonably communicate and consult with client; and Engaging in conduct prejudicial to the administration of justice
This disciplinary matter was filed with the Court by the Board of Overseers of the Bar?s information dated January 9, 2014, pursuant to Maine Bar Rule 7.2(b)(1).
Defendant Attorney Allan W. Hanson of Caribou, County of Aroostook, State of Maine was at all times relevant hereto an attorney admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Rules of Professional Conduct and the Maine Bar Rules. Attorney Hanson was admitted to the Maine Bar in 1989, and is currently registered as an active Maine attorney.
In this proceeding, Attorney Hanson and Bar Counsel have conferred, stipulated, and agreed to the following factual background and involved misconduct by the defendant, Allan W. Hanson, Esq.:
Based upon the above findings, as well as the parties? presentations to the Court, the Court draws the following conclusions:
ACCORDINGLY, it is hereby ORDERED as follows:
Andrew Mead, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Dale F. Thistle, Esq.
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Docket No.: BAR-14-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 28, 2014
Respondent: Dale F. Thistle, Esq.
Bar Number: 007483
Order: Suspension
Disposition/Conduct: Disabled Attorney
ORDER OF SUSPENSION M. BAR R. 7.3(e)(2)(B)
(DISABILITY)
By filing dated May 27, 2014, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order suspending Dale F Thistle for disability-related reasons from the practice of law in the State of Maine. Included with the Board's Petition was a Confidential Affidavit of Bar Counsel.
For good cause shown by the Board, Dale F. Thistle, Esq. appears to be a disabled attorney; as a result, he has committed apparent violations of the Maine Rules of Professional Conduct, thereby serving as a threat to clients, the public and to the administration of justice. The court finds that Attorney Thistle's actions constitute violations of M. R. prof. Conduct 1.3; 1.4(a); 1.15(a)(b)(d)(e); and 8.4 (a)(c)(d).
Accordingly, this court ORDERS that Dale F. Thistle be suspended from the practice of law in Maine pursuant to M. Bar R. 7.3(e)(2)(B) until further Order of this Court.
The Court further ORDERS that Attorney Michael A. Wiers of Newport, Maine is appointed as the Receiver of Attorney Thistle?s practice. The separate Order for the Appointment of Receiver is incorporated herein by reference.
Ellen Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Kris Sahonchick
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Docket No.: Bar-13-22
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 13, 2014
Respondent: Kris Sahonchick
Bar Number: 003555
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
ORDER REINSTATING
ATTORNEY TO THE THE BAR
Kris Sahonchik, Esq., has applied for reinstatement to the Maine bar. On December 11,2013, the Board of Overseers of the Bar voted to recommend to the Court that it grant the application, conditioned upon Sahonchik's completion of the 22 hours of continuing legal education that she was obligated to complete. On May 22, 2014, the Board confirmed that Sahonchik had completed the required education, and recommended that the application for reinstatement be approved.
It is ORDERED that, effective immediately, Kris Sahonchik, Esq., is REINSTATED to the bar of the State of Maine, with all of the attendant rights and responsibilities.
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Dale F. Thistle, Esq.
Docket No.: BAR-14-10
Issued by: Single Justice, Maine Supreme Judicial Court
Date: May 28, 2014
Respondent: Dale F. Thistle, Esq.
Bar Number: 007483
Order: Receiver Appointment
Disposition/Conduct: Appointment of Proxy
Order for Appointment of Proxy M. Bar R. 7.3(f)(1)
As of this date, Michael A. Wiers is appointed as the Receiver of Attorney Dale F. Thistle's law practice. As such Attorney Wiers shall have the sole authority to:.
1. Secure the professional files, client funds and file property of the Thistle law office;. 2. Obtain signatory authority over all Thistle law office bank accounts (IOLTA and operating/office accounts). 3. Obtain access to Attorney Thistle's computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail. 4. Inventory the open and closed client files. 5. Give priority attention to client matters which are open and time sensitive. In addition, Attorney Wiers shall notify all courts that he is serving as Attorney Thistle?s Court-Appointed Receiver. 6. Notify clients or former clients that Attorney Wiers is servmg as Receiver for the Thistle law practice and provide opportunity for clients to retrieve their property. 7. The Receiver shall access and utilize Attorney Thistle's operating and IOLTA accounts to prudently and appropriately wind down the practice. The Receiver may pay expenses, as he deems appropriate given available funds or anticipated receivables to the firm. The Receiver may also hire temporary office staff and take other action as necessary and appropriate to wind down and close the Thistle law practice. As a service to the bar, Attorney Wiers acknowledges that he shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) from Attorney Thistle's law practice, Attorney Wiers may be compensated from those assets. The Receiver shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked in the event the Court orders Attorney Thistle to remit payment to the Receiver. Likewise, Attorney Wiers shall submit an itemized list of any wind-down disbursements made to effect the terms of this Order. Attorney Thistle and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Thistle's practice, the Court may Order that the Board of Overseers of the Bar be an alternate payment source for the disbursements. Attorney Wiers shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f). Additionally, Attorney Wiers so appointed shall not disclose any information contained in any me listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f). Furthermore, Attorney Wiers may be engaged by any former client of Attorney Thistle's so long as Attorney Wiers informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorney Wiers IS subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client's retention of Attorney Wiers as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order. Attorney Wiers shall be protected from liability for professional services rendered as the appointed Receiver in accordance with this Order. Finally, within ninety (90) days of this Order, Attorney Wiers shall file a status report with the Court, with a copy to Bar Counsel, J. Scott Davis, Esq.Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: BAR-14-12
Issued by: Single Justice, Maine Supreme Judicial Court
Date: June 23, 2014
Respondent: Gary M. Prolman
Bar Number:
Order: Immediate Interim Suspension
Disposition/Conduct: Commit a criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; engage in conduct that is prejudicial
ORDER of SUSPENSION
M. Bar R. 7.2(c)
By agreement of the parties, based upon Defendant Gary M. Prolman's plea of guilty on April 29, 2014 in the U. S. District Court, District of Maine, to a federal Information charging money laundering of marijuana proceeds, Mr. Prolman's license to practice law is now suspended effective this date pursuant to the Board of Overseers of the Bar's Petition for Temporary Suspension under M. Bar R. 7.2(c). The Court finds that such criminal conduct by Mr. Prolman demonstrates his unfitness to practice law. Once Mr. Prolman is sentenced for that criminal conduct resulting in the finalization of his conviction, the Court shall impose a further sanction upon him pursuant to M. Bar R. 7.3(d). On or before 30 days from this date, Mr. Prolman shall certify to the Court and to Bar Counsel his compliance with all notification requirements set forth in M. Bar R. 7.3(i)(1).
Donald A. Alexander, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jose L. Serpa, Esq.
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Docket No.: BAR-14-11
Issued by: Single Justice, Maine Supreme Judicial Court
Date: July 17, 2014
Respondent: Jose L. Serpa, Esq.
Bar Number: 004649
Order: Suspension
Disposition/Conduct: Reciprocal Discipline
ORDER of SUSPENSION
M. Bar R. 7.2(c)
This Court received a certified copy of the May 1, 2014 Order of Term Suspension and Memorandum of Decision issued by the Massachusetts Supreme Judicial Court. That Order suspended the above-named Defendant, Jose L. Serpa, for his violations of the Massachusetts Rules of Professional Conduct. In this reciprocal discipline action filed by the Maine Board of Overseers of the Bar, Mr. Serpa has defaulted by failing to file any response whatsoever to this Court's June 2, 2014 Order and Notice that Bar Counsel confirmed was served upon Mr. Serpa on June 10, 2014 by certified mail, return receipt requested. That Order had provided Mr. Serpa an opportunity to show cause within 30 days why the Court should not impose identical discipline to that imposed upon him in Massachusetts.
Therefore, based upon that default by Mr. Serpa, this Court hereby ORDERS:
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Nancy J. Farrell
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Docket No.: BAR-14-14
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 1, 2014
Respondent: Nancy J. Farrell
Bar Number: 004966
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
ORDER of
REINSTATEMENT
M. Bar R. 7.3(j)(5)(6)
Upon the petition of Nancy J. Farrell for reinstatement to the bar of the State of Maine under M. Bar R. 7.3(j), and upon the vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Ms. Farrell's petition for reinstatement is now granted without hearing.
Effective immediately, Nancy J. Farrell is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilities hereto.
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Kimberly A. Shoen, Esq.
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Docket No.: GCF #13-354
Issued by: Grievance Commission
Date: August 15, 2014
Respondent: Kimberly A. Shoen, Esq.
Bar Number: 008690
Order: Reprimand
Disposition/Conduct: Conduct prejudicial to administration of justice; Respect for rights of third persons.
STIPULATED REPORT of FINDINGS AND ORDER of Panel C of the GRIEVANCE COMMISSION M. BarR. 7.1(e)(2)(E); 7.1(e)(3)(C)
Introduction
On August 15, 2014, with due notice and pursuant to Maine Bar Rule 7.1(e)(2)(E), Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to concerning alleged misconduct by Respondent Kimberly A. Shoen, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Stipulated Disciplinary Petition on March 18, 2014.
At the August 2014 hearing, Attorney Shoen was represented by James M. Bowie, Esq. and the Board was represented by Aria Eee, Deputy Bar Counsel. The Family Law Magistrate, who was the Complainant in this matter, was not present for the stipulated hearing, although Bar Counsel did provide her with an advanced copy of this proposed order.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
FINDINGS
Respondent Kimberly A. Shoen, Esq., of Somersworth, New Hampshire has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Shoen was admitted to the Maine Bar in July 1998 and is also licensed in New Hampshire and New York. She is a solo practitioner with a focus on family and criminal law.
The pending complaint matter arose out of a family law case management conference which occurred in November 2013. The Family Law Magistrate presided over that conference and Attorney Shoen and another lawyer represented the two parties involved in the underlying case. At one point during the conference, the Magistrate took a recess and left the courtroom. Opposing counsel and his client also left the courtroom, but Attorney Shoen and her client remained behind as did representatives of the DHHS Office of Child Support. According to the Magistrate's complaint, during the recess, the court marshal observed Attorney Shoen walk over to opposing counsel's table and look at documents that had been laid out during the conference. Following his observation, the court marshal reported the event to the Magistrate prior to her return to the courtroom. At the conclusion of the case management conference, the Magistrate asked both attorneys to meet with her in chambers.
Once in chambers, the Magistrate confronted Attorney Shoen with what the court marshal had just observed. Attorney Shoen admitted to having looked at the opposing party's document/notebook, and explained her reasons therefore. After leaving chambers Attorney Shoen apologized to opposing counsel. Subsequently, the Magistrate filed a grievance complaint, pursuant to her obligations under the Maine Code of Judicial Conduct, Canon 3(D)(2).
In her response to the Magistrate's complaint, Attorney Shoen further explained her actions. In that regard, Attorney Shoen reported that as she walked across the room, she briefly looked at a notebook on opposing counsel's table. At that time, she apparently expected to see doodling or artwork since she had noticed large lines on the notebook. Shoen reported that once she realized what she had viewed was not artwork but instead large writing, she ceased looking. As a consequence of these events, Attorney Shoen withdrew as counsel in the underlying matter and has vowed to "never again walk over and look at opposing counsel's table." In her appearance before the Grievance Commission at this hearing, Attorney Shoen reiterated her apology to the bar and acknowledged her regret for her behavior before the Magistrate, her colleague and the opposing party.
CONCLUSION AND SANCTION
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. Due to Attorney Shoen's actions, various court officials and other litigants/participants were confronted with her disturbing lack of professional judgment. Those officials included the presiding jurist who took immediate action to address Shoen's behavior. Accordingly, the Panel finds that Attorney Shoen violated M.R. Prof. Conduct 4.4(a) [Respect for Rights of Third Persons] and 8.4(d) [prejudicial conduct]. The Panel notes that Attorney Shoen has taken responsibility for her behavior. She has acknowledged the wrongfulness of her actions and expressed remorse for her violations of the Maine Rules of Professional Conduct.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. See M.Bar. R. 2(a). Since the evidence supports a finding and Attorney Shoen agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Shoen's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 7.l(e)(3)(C),(4), the Panel hereby issues that Reprimand to Kimberly A. Shoen, Esq.
Clarke C. Hambley Jr., Esq.
Justin D. LeBlanc, Esq.
Kenneth L. Roberts, Public Member
Board of Overseers of the Bar v. In Re Meredith M. Leary
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Docket No.: BAR-14-13
Issued by: Single Justice, Maine Supreme Judicial Court
Date: August 11, 2014
Respondent: Meredith M. Leary
Bar Number: 009465
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
ORDER of
REINSTATEMENT
M. Bar R. 7.3(j)(5)(6)
Upon the petition of Meredith M. Leary for reinstatement to the bar of the State of Maine under M. Bar R. 7.3(j), and upon the vote of the Board of Overseers of the Bar supporting and recommending the Court's approval of said petition, Ms. Leary's petition for reinstatement is now granted without hearing.
Effective immediately, Meredith M. Leary is HEREBY reinstated to the bar of the State of Maine with all the rights and responsibilities hereto.
Andrew M. Mead, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. George S. Johnson
Docket No.: CV-77-139
Issued by: Maine Supreme Judicial Court
Date: March 10, 1978
Respondent: George S. Johnson
Bar Number: 009692
Order: Disbarment
Disposition/Conduct: Disbarment
Board of Overseers of the Bar v. Jeremy Miller, Esq.
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Docket No.: BAR-14-1
Issued by: Maine Supreme Judicial Court
Date: September 15, 2014
Respondent: Jeremey Miller, Esq.
Bar Number: 004398
Order: Suspended Suspension
Disposition/Conduct: Diligence, Candor to the Tribunal and Prejudicial to the Administration of Justice
ORDER
M. Bar R. 7.2
The Board of Overseers of the Bar (Board) initiated the above attorney disciplinary action on March 24, 2014 by the filing of an Information pursuant to M. Bar R. 7.2(b). Attorney Miller filed a timely Answer to the Information largely denying the allegations of professional misconduct.
The Court scheduled the parties for a pre-trial conference on June 4, 2014. During the conference, the parties informed the Court that they would attempt to resolve the matter by a negotiated Order. In the event no agreement could be reached, the Court scheduled trial for September 15, 2014.
Prior to that date, the parties notified the Court of their consent to finalize this matter with a proposed sanction order. Thereafter, the Court scheduled a stipulated hearing for September 15, 2014 during which the Board was represented by Deputy Bar Counsel Aria Eee and Attorney Miller appeared pro se.
FINDINGS AND CONCLUSIONS
Attorney Jeremey Miller (Miller) was admitted to the Maine bar in November 2008. Although he is admitted in both Maine and New Hampshire, Miller's primary practice and office is located in Concord, New Hampshire.
The instant matter arose due to Miller's actions in a Chapter 7 bankruptcy case filed in the U.S. Bankruptcy Court, District of Maine: In Re: P. C. On behalf of his client, P.C., Miller filed a bankruptcy Petition in September 2012 using the court's Electronic Case Filing (ECF) system. Miller's filing did not include all of the required supporting documents. Based upon that deficiency, the Bankruptcy Court dismissed the Petition later that month.
In December 2012, Miller filed a second Petition with supporting documents using the court's ECF system. In doing so, Miller believed that P.C. had seen and signed those documents, a fact Miller later discovered was untrue. Significantly, the Bankruptcy Court Rules require an original "wet" signature by the client prior to an attorney's filing. The Rules state, "Original executed documents... must be maintained by the filer until two years following the closing of the case or the expiration of all appeal periods, whichever is later." Those Rules also provide, "Upon request of the Court or any interested party, the party must provide original documents for review."
Prior to the January 15, 2013 Creditor's meeting, the Bankruptcy Trustee requested confirmation from Miller that all of P.C.'s documents (which had been filed under the ECF system) contained original "wet" signatures. According to the Trustee's subsequent Motion for Sanctions, "Miller was equivocal as to the existence of the 'wet' signatures but promised to send faxes or scans/ emails of those documents if they were in his file." Miller thereafter advised the Trustee that P.C.'s "wet" signature did not appear on any of the supporting documents in Miller's possession.
On January 18, 2013 the Trustee filed a Motion for Sanctions, outlining Miller's actions related to the P.C. bankruptcy filings. Subsequently, by Consent Order of February 27, 2013 Miller agreed that his conduct violated the United States Bankruptcy Court's filing rules.
Within the terms of that Consent Order, Miller agreed to various provisions including a $250.00 sanction; a disgorgement of the entire fee P.C. paid for Miller's legal services; a requirement that he implement office-wide systems to prevent recurrence of the errant filings; and a nine (9) month restriction on his filing in the U.S. Bankruptcy Court, District of Maine.
Due to Miller's above-outlined failures, he engaged in conduct which was misleading to the Trustee and the Bankruptcy Court and which was prejudicial to the administration of justice. See M. R. Prof. Conduct 3.3(a) and 8.4(c)(d). Though unintentional, Miller agrees that his conduct also violated the U.S. Bankruptcy Court, District of Maine's Rules and procedures.
Following a review of the pleadings and the parties' proposal, the Court concludes and Miller agrees that he engaged in violations of the Maine Rules of Professional Conduct which include M. R. Prof. Conduct 1.3 [Diligence]; 3.3(a); [Candor to the Tribunal] and 8.4(a)(d) [Conduct Prejudicial to the Administration of Justice].
SANCTION
Attorney Miller's multiple violations of the Maine Rules of Professional Conduct are serious and warrant an appropriate sanction. The Court is mindful, however, that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. The Court also notes that in addition to the instant action, Miller agreed in 2013 to be reprimanded for his affiliation with "Legal Helpers Debt Resolution," a partnership which resulted in neglect and harm to some of his Maine clients.
As a mitigating point for the Court's consideration, is the fact that Miller has taken responsibility for his errors. He has entered into consent orders issued by the U.S. Bankruptcy Court, District of Maine and now this Court. He disgorged the fee paid by his former client and agreed to a financial sanction imposed by the Bankruptcy Court. Finally, Miller certified to the Bankruptcy Court that he has implemented systems which ensure future compliance with the Court's Administrative Procedures. During the stipulated hearing before this Court, Miller reiterated his commitment to maintain those office systems as a means to ensure protection of his client's interests.
The Court has considered all of the above factors in aggravation and in mitigation. Accordingly, and accepting the parties' agreement, the Court suspends Attorney Miller from practicing law in Maine for three (3) months, effective September 16, 2014. That suspension, however, is itself suspended pursuant to the following conditions:
Miller must not submit any court filings without confirming (at least by file review) that he and/or his staff have followed all necessary and proper court procedures; and
Miller must ensure that his clients are aware and agree to such filings; and;
Miller must refrain from engaging in violations of the M. R. Prof. Conduct; and;
Miller must ensure that his office retains systems which comport with his duties and obligations as an officer of the court.
Attorney Miller is responsible for complying with the above-outlined conditions and he is not required to provide independent confirmation to Bar Counsel unless he is specifically requested to do so. If Miller violates one or more of the conditions, however, Bar Counsel may request a hearing from the Court to determine whether any actual term of the three-month suspension should be imposed upon Miller.
Finally, in the event a grievance complaint is received by the Board after September 16, 2014, Bar Counsel may elect to file a new disciplinary matter directly before the Court pursuant to the terms of this Order and Maine Bar Rule 7.2(b).
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. James M. Cameron
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Docket No.: BAR-11-2
Issued by: Single Justice, Maine Supreme Judicial Court
Date: September 12, 2014
Respondent: James M. Cameron
Bar Number: 006893
Order: Suspension
Disposition/Conduct: Extended Suspension
EXTENDED
ORDER of SUSPENSION
M. Bar R. 7.3(D)(1)
By agreement of the parties, the order dated August 29, 2011 in the above pending matter is now ORDERED indefinitely extended, pending a decision from the United States District Court for the District of Maine regarding the re-sentencing of James M. Cameron, Case Number 1-09-CR-000024-001.
Counsel for Mr. Cameron has indicated that his client will seek to resign from the practice of law in Maine. In order to accomplish that, he shall file a motion with the Board of Overseers of the Bar no later than October 15, 2014.
Until further order from this Court, Mr. Cameron's license to practice law shall remain administratively suspended, pursuant to an order issued by the Board of Overseers of the Bar on October 19, 2010. In addition, by agreement of the parties, Mr. Cameron's license to practice law is also suspended by this Court, pursuant to M. Bar R. 7.3(d)(l), as a result of his federal convictions for multiple counts of crimes involving child pornography, which demonstrate his unfitness to practice.
Upon request from counsel for the Board or counsel for Mr. Cameron, the Court will schedule a conference to determine the future course of this case.
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Andrew L. Broaddus, Esq.
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Docket No.: GCF-13-171
Issued by: Grievance Commission
Date: September 22, 2014
Respondent: Andrew L. Broaddus, Esq.
Bar Number: 002302
Order: Dismissal with Warning
Disposition/Conduct: Conflict of Interest; Personal Conflict; Interest In Litigation.
REPORT OF A PANEL OF THE GRIEVANCE COMMISSION
Upon due notice, Panel of the Grievance Commission conducted a hearing on June 23 and June 30, 2014, at the Cumberland County Courthouse, open to the public according to Maine Bar Rule 7.1(e)(2), on the petition of the Board of Overseers of the Bar alleging misconduct on the part of Andrew L. Broaddus, Esq., of Westbrook, Maine. The disciplinary petition before us is dated March 14, 2014. Its genesis was a complaint filed by Attorney Pamela S. Holmes on May 14, 2013. The Board?s petition asserts violations of formerly-applicable Maine Bar Rule 3.2(f), Maine Bar Rule 3.4(b), Maine Bar Rule 3.4(f), Maine Bar Rule 3.6(a), and Maine Bar Rule 3.7(c), all of which are denied by the Respondent.
The Board was represented by Assistant Bar Counsel Alan P. Kelley. Respondent was present and represented by Melissa A. Hewey, Esq. and G. Toby Dilworth, Esq. No objections were raised to the composition of the panel. At the commencement of the hearing, Board Exhibits 1 through 46 and Respondent?s Exhibits 1 through 28 were offered and admitted without objection; Board Exhibit 47 and Respondent?s Exhibits 29 and 30 was offered and admitted during the hearing without objection.
The Board called Attorney Broaddus and Attorney Pamela Holmes of Wells as witnesses, who were cross-examined by counsel for the Respondent. The Board expected to present Katherine Rounds as a witness and she was apparently in the hallway during the morning of the first day of the hearing. For reasons unknown, Ms. Rounds departed before she was called. Assistant Bar Counsel?s oral motion for permission to call her as a witness after Attorney Broaddus testified in support of his own case was denied. The Board then rested its case. The Respondent testified on his own behalf, and was cross-examined by Assistant Bar Counsel. Members of the panel asked questions of all witnesses.
The Board?s allegations arise from business and professional interactions between Katherine Rounds (who was also known as Katherine Rounds Pelletier at various times) and the Respondent (also Attorney Broaddus) and his business partner, James Foye. Prior to October 2005, Katherine Rounds owned waterfront property on Sand Pond in Baldwin. On October 31, 2005, the Respondent and Mr. Foye purchased an unimproved portion of Ms. Rounds? land without water frontage ? the ?back lot? ? while she retained the improved ?front lot.? The closing statement provided for the hold-back by Attorney Broaddus and Mr. Foye of $4,262.37 to pay real estate tax liens from 2003 and 2004, plus YTD current property taxes for January 1 through October 31, 2005. The deed was signed and delivered on October 31, 2005.
Before the sale of the back lot to the Respondent and Mr. Foye, one Ralph Gibson provided Ms. Rounds with assistance on improvements she was making to the camp. Mr. Gibson was a building contractor who also had a personal relationship with Ms. Rounds. After the sale (and the unrelated souring of his relationship with Ms. Rounds), Mr. Gibson asserted a mechanic?s lien against the Baldwin property in December 2005 and perfected the lien in February 2006 by filing suit to enforce the lien, all pursuant to 10 M.R.S.A. ch. 603. At Ms. Rounds? request, Attorney Broaddus agreed to represent her in the Gibson action.
The Respondent filed an answer and counterclaim to the Gibson lawsuit in April 2006. Thereafter, the court docket shows no motions, discovery, responses to the plaintiff?s discovery or to the plaintiff?s motions to compel discovery until the case was dismissed by stipulation in August 2008. Attorney Broaddus testified that he conducted informal discovery, but otherwise adopted a deliberate ?no action? strategy in the hope and expectation that the plaintiff would abandon his case or have it dismissed for inaction under Rule 41(b). The case was settled by the payment on July 21, 2008 of $20,000 to Gibson from the funds of Attorney Broaddus and Mr. Foye.
In 2007, Attorney Broaddus and Mr. Foye decided to purchase the ?front lot.? They commissioned an appraisal of the property which showed a value of $130,000 as of June 9, 2007. On June 22 2007, Attorney Broaddus sent a copy of the appraisal, a purchase and sale agreement and a ?consent? to Ms. Rounds, with a note asking her to contact him if she had any questions. On July 8, 2007, Ms. Rounds signed both the ?consent? and the purchase and sale agreement for the front lot. The substantive portion of the consent reads in full:
I, KATHERINE ROUNDS PELLETIER, consent to my attorney, ANDREW L. BROADDUS, and his partner, JAMES W. FOYE, purchasing upon terms and conditions in a Purchase and Sale Agreement, or any extensions or modifications thereto, my remaining real estate, being the land and buildings, together with all rights, easements, right of ways [sic] and matters of record at 40 Jackson Lane, Sand Pond, Baldwin, Maine, being the remaining portion of the same premises described in Deed from Mabel L. Rounds to Katherine R. Pelletier, dated November 30, 2000 and recorded in the Cumberland County Registry of Deeds in Book 15905, page 102. I acknowledge that I have been advised that I may seek independent counsel regarding this transaction.
The purchase and sale agreement provided for the sale of the front lot for $120,000, of which $20,000 was due within 14 days of execution, to be followed by monthly payments of $500 for eight months and $100,000 ?to be paid in March, 2008 when Seller can convey title to the premises free of all liens and other encumbrances, except rights of way of record.? No interest was to be paid. No note or mortgage was offered or signed by the Respondent in 2007. The P&S further provided,
That a good and sufficient Warranty Deed showing marketable title shall be delivered to the Purchasers and held in escrow until the premises are free and clear of all liens and encumbrances, except rights of way of record at which time the Purchasers shall pay the remaining principal balance to Seller. It is agreed that this transaction shall be closed and executed all papers necessary for the completion of the purchase by July 20, 2007.
If the Purchasers fail to make any of the payments, or any part thereof, or to perform any of the covenants on their part made or entered into, this Agreement, at the option of the Seller, shall be terminated.
The closing statement provided for the hold-back of $2,488.24 to cover a 2006 real estate tax lien and YTD 2007 property taxes. The deed was dated July 20, 2007.
Until the settlement of the Gibson mechanic?s lien lawsuit in August 2008, neither deed to the back or front lots was recorded. Both parcels remained subject to the Gibson lien until it was discharged in October 2009. The Respondent did not inform opposing counsel of his and his business partner?s interest in the property and no M.R.Civ.P. 19 issues were presented to the district court.
At the time of the back lot sale and through the July 2007 closing on the front lot, Attorney Broaddus and Mr. Foye as purchasers and Ms. Rounds as seller believed that the each lot could be developed separately. On March 26, 2009, they were informed by the code enforcement officer of the Town of Baldwin that the property could not be divided and had to be used as a single lot. There was no testimony or evidence that the divisibility of the property was discussed by Ms. Rounds and Attorney Broaddus prior to that time.
At the July 20, 2007 closing, Ms. Rounds delivered a fully executed deed to Attorney Broaddus and Mr. Foye in exchange for $20,000. They owed her $100,000, due on some date in March 2008 without interest. They delivered neither a note nor a mortgage to Ms. Rounds for the $100,000 balance.
Thereafter, the relationship between Ms. Rounds and Attorney Broaddus became confused. Her communications to the Respondent were variously complaining, scolding, threatening and complimentary, all without pattern, depending on the events of the moment. At the same time, Attorney Broaddus? communications to Ms. Rounds were almost exclusively by telephone.
Ms. Rounds was not paid in full by March 2008 as agreed in the purchase and sale agreement. After several demands, including Ms. Rounds? e-mail threat on October 20, 2008 to report Attorney Broaddus to the Board of Overseers, Mr. Foye and Attorney Broaddus executed a note and mortgage on October 30, 2008 for the then balance of $65,000, plus interest at 10%, due on April 1, 2009.
Following the March 26, 2009 notice from the CEO for the Town of Baldwin, Attorney Broaddus commissioned a further appraisal of the entire parcel (retrospectively as of June 9, 2007). The appraiser?s opinion was that the property was worth $143,000 as a single parcel as of that date. On May 5, 2009, Attorney Broaddus sent a letter to Ms. Rounds offering the principal sum of $122,000 (plus accrued interest from October 2008). After several exchanges of correspondence, he and she agreed to a renegotiated price of $133,000 (plus accrued interest). Attorney Broaddus and Mr. Foye received credit for the $20,000 settlement with Gibson and both appraisals. The balance of the agreed purchase price was paid on July 1, 2009.
The Respondent provided a variety of services to Ms. Rounds. In addition to the Gibson litigation, he prepared wills for her in the summer of 2007 and the late winter of 2009. He consulted with her regarding her credit and credit report in the spring of 2009. He consulted with her regarding a business opportunity in New Hampshire in 2008 and 2009. Attorney Broaddus did not charge and Ms. Rounds did not pay any fee for his services in connection with the Gibson litigation, the wills, the credit issues and the business consultation.
Attorney Broaddus was the only witness with personal knowledge of the events that transpired between the autumn of 2005 and the summer of 2009. The Respondent?s relationship with Ms. Rounds prior to the spring of 2006 was straightforward ? he and Mr. Foye bought property that Ms. Rounds was selling. Beginning in April 2006, however, their roles became more complex. Attorney Broaddus represented Ms. Rounds in the Gibson mechanics lien litigation without fee at a time when he (and Mr. Foye) had an interest in the property that was the subject of the litigation. His interest was undisclosed to Gibson?s lawyers or to the court from its commencement in 2006 to its conclusion in August 2008.
During his representation in June/July of 2007, Attorney Broaddus (and Mr. Foye) purchased the remaining front lot of Ms. Rounds? property for $10,000 less than its appraised value. The absence of a note and mortgage for $100,000 (to be paid without interest) benefited the Respondent. Coincident with the purchase and sale agreement for the front lot on July 8, 2007, Attorney Broaddus prepared and Ms. Rounds signed the ?consent? set forth above. Not until June 19, 2009 ? throughout his failure to pay the purchase price as agreed in 2007, the negotiation and execution of the note and mortgage in October 2008, and the final negotiations for a settlement $10,000 below the newly-obtained appraisal value in 2009 ? was there another written communication from the Respondent to Ms. Rounds that ?you are free to consult with independent counsel, if you wish.?
Attorney Broaddus testified repeatedly and forcefully throughout his lengthy examinations that he kept Ms. Rounds fully informed and appraised of her rights under their several agreements. He said that she was a knowledgeable and sophisticated businessperson who represented herself ably and well. He asserted that the July 8, 2007 consent was sufficient disclosure, that it applied to the entire travel of his relationship with his client and that he was required to do nothing more.
The panel also heard from Attorney Pamela S. Holmes, who represented Ms. Rounds in a malpractice action against Attorney Broaddus in 2013. Attorney Holmes had no personal knowledge of any of the events prior to her representation of Ms. Rounds. All of her contact with Ms. Rounds occurred well after her client?s interaction with the Respondent concluded. In addition, Attorney Holmes? credibility was impeached by contradictory and inaccurate statements in her original complaint. The panel bases its decision on the written record created during Attorney Broaddus? representation of Ms. Rounds and its evaluation of his testimony.
Maine Bar Rule 3.4(b) provides that a lawyer ?shall not commence or continue representation of a client if the representation would involve ? a substantial risk that the lawyer?s representation ? would be materially and adversely affected ? by the lawyer?s own interests.? The panel finds that the Respondent breached this rule. The rule does not require that there be actual material and adverse impact on the representation, only that a substantial risk of material and adverse impact existed. From April 2006 through August 2008, Attorney Broaddus represented Ms. Rounds in the Gibson litigation. Gibson held a recorded and perfected mechanic?s lien against the entire Baldwin property ? the back lot which Attorney Broaddus and Mr. Foye acquired prior to the litigation and the front lot which they acquired with full knowledge of the lawsuit ? which admittedly not disclosed to Gibson?s lawyers or to the court. The lawsuit was settled by payment of $20,000 from the Respondent?s and Mr. Foye?s funds. Attorney Broaddus testified that the settlement was made and the funds advanced with the knowledge and permission of Ms. Rounds, although there is no documentation to that effect. The fact that the $20,000 was recouped from Ms. Rounds eleven months later in the financial compromise between her and them does not erase the substantial risk.
Maine Bar Rule 3.4(f) provides that a lawyer ?shall not ? enter into any business transaction with a client, unless ? [t]he transaction and terms ? are fair and reasonable to the client and ? the client is advised and given a reasonable opportunity to seek independent professional advice of counsel of the client?s choice on the transaction.? The panel finds that the Respondent breached this rule. Attorney Broaddus complied fully with the spirit and letter of Rule 3.4(f) in July 2007 when he prepared and sent ? and Ms. Rounds signed ? the ?consent? set forth above in connection with the purchase of the front lot. A reduction of $10,000 from the appraised value of the property is consistent with the unfinished nature of the cottage on the front lot in 2007.
While a close call, the panel does not find that the additional price reduction of $10,000 from the appraised value (determine retrospectively) was unfair or unreasonable to Attorney Broaddus? client. Given the deteriorated condition of the property, the proportion of the reduction to the overall price, and Attorney Broaddus? testimony that the figure was mutually agreeable, he is entitled to the benefit of the doubt.
However, the nature and scope of the business transaction changed in March 2008 once the balance was not paid as promised, the parties were confronted in 2009 with the newly-discovered position of the Town that the property could not be subdivided into back and front lots, and the final negotiations culminating in the agreement of July 2009. Contrary to the Respondent?s assertions that the July 8, 2007 consent was sufficient, he was required to have a better tuned ear to the movements of his representation. Attorney Broaddus testified that Ms. Rounds was advised orally of her right to consult other counsel from time to time. Given that he properly obtained her consent in writing in July 2007, he was required to revisit that consent in writing as their business relationship waned and waxed and waned again.
It is well settled in Maine law that the ?doctrine of merger by deed provides that once a ? deed is accepted it becomes the final statement of the agreement between the parties and nullifies all provisions of the purchase-and-sale agreement.? Baillargeron v. Estate of Daigle, 2010 ME 127 ¶18 (but if there was a mutual mistake of the parties in the legal description, the deed may be reformed); Bryan v. Breyer, 665 A.2d 1020, 1022 (Me. 1995) (same). Attorney Broaddus? assertions throughout the hearing that he never really accepted the conveyances from Ms. Rounds because he doubted her ?good title,? are not supported by existing law.
Maine Bar Rule 3.7(c) generally prohibits a lawyer from acquiring a proprietary interest in the subject matter of litigation that the lawyer is conducting for a client. In this case, Attorney Broaddus started his representation of Ms. Rounds after he purchased an interest in the back lot but purchased the balance of the property which was subject to the Gibson lien while he represented Ms. Rounds in the litigation regarding that lien. The Respondent testified that he was not speculating in the property because of the litigation (or vice versa), which the panel regards as too fine a distinction.
The allegations regarding Maine Bar Rule 3.2(f) were not pressed.
The panel concludes that Attorney Broaddus failed to comply with his ethical duties to his client. That being said, the panel is constrained by the evidence presented as it considers the extent of those lapses. Ms. Rounds did not testify. We have only the first-hand testimony of Attorney Broaddus regarding her statements ? other than those presented in her various e-mails, which are contradictory and occasionally equivocal ? and nothing to contradict his assertions that Ms. Rounds was fully informed and expressed and understanding and acceptance of his professional and business dealings with her.
Attorney Broaddus appears to have learned from his experience. While the panel is disappointed that he has not accepted full responsibility for his lapses, it is clear that he has sworn off all business dealings with any client and all representation of those with whom he has business dealings. The problems presented in this case are unlikely to be repeated. The panel is also aware that Attorney Broaddus and Ms. Rounds settled all claims between them.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. Since the evidence supports a finding that Attorney Broaddus did violate the Maine Bar Rules but without any evidence of substantial harm to the client or the public, and that he is unlikely to commit any future professional lapses, the panel concludes that a dismissal with warning is appropriate under all the circumstances. Pursuant to Maine Bar Rule 7.1(d)(4), the petition is dismissed with a warning to Attorney Broaddus to remain cognizant of his professional responsibilities hereafter.
September 22, 2014
Peter C. Fessenden, Esq., Acting Chair
A. J. Hungerford, Esq.
Marjorie Medd, Public Member
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Board of Overseers of the Bar
Date: September 24, 2014
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Reinstatement Not Recommended
Disposition/Conduct: Reinstatement Petition
Recommendations and Findings of the Board of Overseers of the Bar
Pursuant to Maine Bar Rule 7.3(j), Edwin R. Jonas III (Bar No. 3553) of Lakeside, Montana [hereinafter Petitioner], seeks reinstatement to the Maine Bar. Petitioner filed with the Maine Supreme Judicial Court a Petition for Reinstatement dated September 18, 2013, which was subsequently opposed by Bar Counsel under the provisions of Maine Bar Rule 7.3(j)(5).
On March 6, 2014, a hearing before a panel of the Board of Overseers of the Bar?s Grievance Commission was held in Portland, Maine. The resulting Report of Findings dated March 21, 2014, issued by this Grievance Commission hearing panel, recommended reinstatement, finding that Petitioner met the criteria for reinstatement under the above-mentioned Rule. Bar Counsel timely objected to that decision, leading the Board of Overseers of the Bar to create a special panel to review the evidence adduced at hearing and make a recommendation to the Board as to whether the Board should recommend that the Court approve the Petitioner?s reinstatement to the Bar.1
Petitioner had a very high burden of proof for reinstatement as set forth in the Maine Bar Rules. Under Rule 7.3(j)(5) governing reinstatement, the Petitioner must show by clear and convincing evidence that he has, inter alia, the moral qualifications and competency required for admission to practice law in the state of Maine. The Petitioner must also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered in determining whether Petitioner has met that burden include evidence that:
(A) The Petitioner has fully complied with the terms of all prior disciplinary orders;
(B) The Petitioner has neither engaged nor attempted to engage in the unauthorized practice of law;
(C) The Petitioner recognizes the wrongfulness and seriousness of the misconduct;
(D) The Petitioner has not engaged in any other professional misconduct since resignation, suspension or disbarment; (E) The Petitioner has the requisite honesty and integrity to practice law;
(F) The Petitioner has met continuing legal education requirements of Rule 12(a)(1) for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 22 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (1) no more than one half of the credits are earned through in-office courses, self-study, or a combination thereof; and (2) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility.
In reaching its recommendation, the review panel examined the evidence submitted at hearing and reviewed the hearing transcript. In response to Bar Counsel's objections to the Grievance Commission's Report of Findings and Recommendations, the review panel requested and reviewed briefs submitted by the parties. The Board acknowledges the prodigious amount of work performed by the hearing panel and gives deference to its role as fact finder. Nevertheless, the Board concludes that Petitioner has not met his burden and the Board cannot recommend his reinstatement. See, e.g., Bailey v. Board of Bar Examiners, 2014 ME 58 (Law Court found that Petitioner seeking admission to Bar had not met his burden, despite two testimonial hearings at which two different fact finders had opportunity to evaluate witnesses? demeanor and credibility).
There are myriad reasons for this recommendation:
(1) Conditional reinstatement. The hearing panel recommended reinstatement provided that Petitioner pay all outstanding costs still due with respect to bar disciplinary proceedings in New Jersey and Florida, as well as provide a full response to financial disclosure questions. The hearing panel also recommended conditioning reinstatement on Petitioner providing tax returns for review by Bar Counsel.2 Under the Rules, the Grievance Commission does not have express authority to recommend a conditional reinstatement, and furthermore, the Petitioner did not comply with the conditions named by the hearing panel.
(2) Incomplete answers to Board questionnaire. Under Rule 7.3(j)(5), Petitioner was to fully complete the Board?s reinstatement questionnaire. He did not provide a full response about his income, tax returns, and a listing of all cases and copies of all decisions that he is involved in, as requested by the questionnaire. Rather, Bar Counsel had to obtain and disclose the very revealing decisions to the hearing panel.
(3) Judgment of over $1,000,000. In 2006, the New Jersey Superior Court ordered Petitioner to pay his ex-wife over $1,000,000 in an admittedly highly contentious post-divorce litigation.3 Although Petitioner has a right to dispute that judgment, it is a final judgment which is owed full faith and credit. Petitioner has not made any payments on that judgment. Rather, Petitioner initiated substantial litigation in Montana to avoid the enforcement of the judgment against him.4 None to date have been successful. Those decisions, too, deserve full faith and credit. Indeed, one Montana court chastised Petitioner for filing six appeals of this New Jersey judgment after his disciplinary suspension.5
(4) Burden to prove by clear and convincing evidence that Petitioner recognizes the wrongfulness and seriousness of his conduct. The Petitioner?s actions, as evidenced in the disciplinary decisions against him and in his testimony before the hearing panel, are indicative of just the opposite. For example, Petitioner contends that the Special Master in New Jersey did not find that he violated a rule regarding candor to a tribunal, when, in fact, the judge found that he had committed a fraud upon the court when he removed his children from the jurisdiction.6 Other examples include, but are not limited to the following:
The hearing panel found that Petitioner did not seek legal retribution against a judge, despite significant evidence to the contrary. Petitioner testified against the judge hearing his divorce before the New Jersey Legislature forcing the judge to recuse himself. He also filed a 42 U.S.C. §1983 action against the Montana judge7 with whose decision he did not agree, stating, ?I'm about what's right and wrong here, and what he did was wrong.?8 Petitioner admitted filing legal ethics complaints against two New Jersey judges and moved to disqualify one of those judges.9
Petitioner has been called a vexatious litigant by the Montana Supreme Court,10 and continues to challenge the final decisions against him and the judges who issued those decisions, at hearing essentially internalizing the matters as things having ?been done to him.?11
Petitioner failed to demonstrate candor in the reinstatement hearing when he testified that a warrant of arrest had not been issued against him in New Jersey, despite numerous court references to the contrary,12 and despite his request that his 2006 disciplinary hearing in New Jersey be moved to Pennsylvania or that he be allowed to appear by telephone.13 As Bar Counsel points out, the only plausible explanation for those requests is that Petitioner did not want to come back to New Jersey with a warrant pending. Petitioner did express remorse for his actions, but only after he was specifically prompted by the hearing panel chair as follows: "Do you express remorse or regret. . . ?,? Petitioner: "Yes."14
(5) Actions that led to discipline. The Board cannot overlook Petitioner?s actions that led to his disciplinary suspension. He removed his children from the jurisdiction in violation of a court order by taking them to the Cayman Islands,15 and transferred property to his sister and friend in violation of a court order.16 He then rationalized the conduct by saying that his children wanted to go with him to the Cayman Islands and that he placed the property in a trust for his children, though no trust could ever be found.17 Finally, at the reinstatement hearing and elsewhere, he repeatedly accused the judge who determined that he violated those orders of being retaliatory.18
In conclusion, the hearing panel failed to make requisite findings that Petitioner recognizes the wrongfulness and seriousness of his misconduct. The hearing panel also failed to make requisite findings that Petitioner possesses the moral character to practice law in the State of Maine and made no findings as to Petitioner?s honesty and integrity. The evidence establishes that reinstating Petitioner would be detrimental to the integrity and standing of the Bar, the administration of justice, and the public interest.
September 24, 2014
Gregory T. Caswell, Board Chair
Footnotes
1 To avoid confusion, the special panel created by the Board will be referred to herein as the "review panel" and the Grievance Commission hearing panel will be referred to as the "hearing panel."
2 The decision is somewhat ambiguous, as the hearing panel both "conclude[s] and recommend[s]" that the petition be granted upon the conditions provided, but it also provides that Petitioner's personal and corporate tax records for the past 18 years "should be produced for Bar Counsel's review and any final action on the petition should await Bar Counsel's determination whether those records afford any new grounds to believe the Petitioner may be unfit to practice law in Maine." Petitioner objected to both of these conditions.
3 Board Exhibit #20.
4 See Board Exhibits #14-19.
5 See Board Exhibit #15 pp. 108-109 (Montana Twentieth Judicial District Court Order and Rationale dated July 14, 2011). The review panel concludes that the hearing panel did not give sufficient full faith and credit to the numerous decisions finding against Petitioner, and did not give due consideration to the type of litigant that Petitioner has proven to be over many years.
6 See Board Exhibit #10, p. 41 (Supreme Court of New Jersey Disciplinary Review Board Decision dated September 2, 2005).
7 See Board Exhibit #27, p. 167 (United States District Court, D. Montana Order dated June 12, 2013, Edwin R. Jonas III and Blacktail Mountain Ranch Co., LLC v. Ronald F. Waterman, Esq. Gough, Shanahan, Johnson & Waterman and Honorable Charles B. McNeil).
8 See Board v. Jonas Grievance Hearing Transcript p. 101, lines 6-18.9 See Transcript p. 40, lines 19-25.
10 See Board Exhibit #18, p. 140 (Montana Supreme Court Decision dated July 23, 2013).
11 See, e.g., Bailey v. Board of Bar Examiners, 2014 ME 58 ¶ 51.
12 Board Exhibit #20, p. 2 ¶¶5.
13 See Board v. Jonas Grievance Hearing Transcript pp. 57-60.
14 See Transcript p. 72, lines 19-25.
15 See Transcript p. 43, lines 10-12; 13-14: 20.
16 See Transcript p. 71, lines 4-25
17 Id. at fn 14 and 15.
18 See Transcript p. 43, lines 10-12; 13-14: 20.
Board of Overseers of the Bar v. Richard L. Currier, Esq.
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Docket No.: 13-238
Issued by: Grievance Commission
Date: October 15, 2014
Respondent: Richard L. Currier, Esq.
Bar Number: 002245
Order: Dismissal with Warning
Disposition/Conduct: Conflict of Interest; Duties to Former Client; Conduct Prejudice to the Administration of Justice
REPORT OF A PANEL OF THE GRIEVANCE COMMISSION
On August 22, 2014 in Kennebec County Superior Court, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e) (2), concerning an alleged misconduct by Respondent Richard L. Currier, Esq. The disciplinary proceeding had been commenced on March 13, 2014 by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board).
The Board in its Petition alleged that Attorney Currier had violated M. R. of Prof. Conduct 1.9 (a), Duties to Former Clients, which reads:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
At the hearing, the Board was represented by Alan P. Kelley, Esq., Assistant Bar Counsel. The Respondent was represented by Malcolm L. Lyons, Esq.
The Parties' Exhibits were admitted without objection. The following witnesses testified at the hearing:
Mark Crouch, Jr.
Richard L. Currier, Esq.
Judith Walton-Phair
Kirk Phair
James M. Dunleavy, Esq.
This matter began in 2003 when attorney Richard Currier (Currier) represented complainant Mark Crouch when Crouch was indicted and convicted of gross sexual assault against his pregnant girlfriend. Then, in 2013 Currier represented Kirk Phair (Phair) in his Motion to Modify his 2009 divorce judgment with Judy Walton-Phair (Walton-Phair). At this time Walton-Phair had custody of their two minor children. Also at this time Walton-Phair was engaged to marry Crouch.
Crouch discovered that his attorney from his 2003 gross sexual assault conviction was now representing Phair and seeking to modify his fiance?s divorce judgment. Crouch complained to Currier about a "conflict of interest" and asked him to withdraw from representing Phair in his Motion to Modify. Currier refused to do so. Crouch complained to the Board of Overseers of the Bar, leading to this disciplinary proceeding.
Crouch 's criminal history is serious and violent. In 2003 Currier represented Crouch after he was indicted for several crimes, based on his pregnant girlfriend's allegation that Crouch severely beat her; choked her; and sexually assaulted her. On December 19, 2003, after a four day trial, Crouch was convicted of Gross Sexual Assault and Assault.
The Court ordered that a confidential pre-sentence investigation be completed and a sentencing hearing was held June 8, 2004. Crouch received a sentence of20 years to the Department of Corrections, all but 10 years suspended and 6 years of probation. Among the conditions of probation were that Crouch undergo evaluation, counseling and treatment as a "sex offender" and for "certified batterer's intervention." Crouch is a registered sex offender.
Currier continued to represent Crouch in an unsuccessful application to the Law Court for leave to appeal the sentence imposed upon him. Currier did not file an appeal on Crouch?s behalf of the underlying conviction.
Shortly after his release from prison in 2012, Crouch met and started dating Walton-Phair. They had known each other from childhood. In September, 2012 Crouch was again involved in a violent episode, which resulted in him being shot. Walton-Phair was indirectly involved. On June 21, after a contested hearing, Crouch was found to have violated probation and sentenced to 5 years imprisonment.
Before this second imprisonment, in May, 2013, Crouch and Walton-Phair became engaged. Walton-Phair phoned Phair to inform him of her engagement to Crouch.
At this time Phair engaged Currier as his attorney to draft a motion to modify his divorce decree with Walton-Phair. Phair testified that his main reason for filing this motion was his difficulty with obtaining his court ordered right to visit with his two young children. However, Phair was also concerned about his wife's history of involvement with abusive men, including Crouch, and his children's exposure to such men.
Currier drafted for Phair the Motion to Modify. As to the "changed circumstances" that necessitated Phair's return to court, the motion stated:
1. Plaintiff has repeatedly interfered with my right of contact.
2. Plaintiff has repeatedly exposed the children to men who are abusive and who is [sic] a registered sex offender.
The motion sought the following changes in the divorce decree:
Award primary residence to me and allow Plaintiff contact, limit contact with sex offenders, criminals and abusers, recalculate child support and award all income tax deductions to me.
Crouch is the "registered sex offender" referenced in Phair's Motion to Modify. The underlying conviction that required Crouch to register as a sex offender was the Gross Sexual Assault conviction that Currier represented him at trial and sentencing in 2003.
At the time Phair filed this Motion to Modify he was aware that Crouch and Walton-Phair were engaged to be married.
After the Motion to Modify was filed Crouch contacted Currier and advised him that he and Walton-Phair were engaged to be married and that he considered Currier's representation of Phair in the Motion to Modify to be adverse to his interests and a "conflict of interest." When Currier declined to cease his representation of Phair, Crouch complained to the Board of Overseers in a letter dated July 8, 2013. His hand written complaint in part stated:
My [criminal] charges have nothing to do with children. So there is no stipulation not to be around children. Judy's [Walton-Phair] ex-husband Kirk Phair is taking her to court for full custody of the children and has hired Richard Currier to help him. Mr. Currier is using my case, that he defended me, against her. I called Mr. Currier and told him that was not rite cause he's the one who told me to go [?] and now he's using it against my girlfriend/fienaccy. Isn 't that a conflict of interest? How can he do that?
In his July 26, 2013 response to Crouch 's complaint, Currier stated to the Board:
Mr. Crouch did call my office and speak with me about this matter. He insisted that I was in a "conflict of interest" and should withdraw from the case. I advised him that my review of the Bar Rules suggests that there is no conflict, that he is not a party, that we have not accepted any case against a former client and, in fact, he may not even be called to testify in the case. I do not perceive that there is a violation of the Rules of Professional Conduct in this instance.
My review of the Rules of Professional Conduct lead me to believe that there has been no violation in this case. This does not involve a matter which is substantially related to the previous matter for which we provided legal services to Mr. Crouch. Further, no confidence or secrets of a former client have been used to the disadvantage of the former client. Finally, there is no evidence of misconduct by counsel in this matter. All information provided has been developed through public records. This pending family matter does not involve Mr. Crouch, except in his capacity as "fiancee" to Judy Walton-Phair.
In its Disciplinary Petition, the Board concluded its allegations as follows:
28. As a result of Currier 's prior representation of Crouch in 2003-2004, he obtained substantial confidential information relating to Crouch's history and background; the nature of his prior relationships with women; any propensities for violence or abuse that he might have; his addictions and substance abuse history; as well as other information that would be relevant in his current (Phair) client's claim that Judy Walton-Phair is exposing her children to "abusive men" and a "registered sex offender".
29. The interests of Crouch, as the fiancee of Judy Walton-Phair, are directly adverse to those of Kirk. A. Phair in his Motion to Modify.
Eventually, Currier transferred Phair's case to another lawyer in his firm and James M. Dunleavy, Esq. became Phair 's attorney. Currier testified that his reason for having Dunleavy represent Phair was not because he feared he might be in violation of the Maine Rules of Professional Conduct, but was instead due to the involvement of children and possibly DHHS in Phair's case.
At the hearing on Phair's Motion to Modify, Dunleavy questioned Walton-Phair on Crouch and his relationship with her. After hearing her answers, the Judge requested a conference of counsel and suggested that the parties reach an agreement. Walton-Phair testified at the Board's hearing that she felt that she was forced to choose between her children and Crouch.
The Board in its Petition alleged that Attorney Currier had violated M. R. of Prof. Conduct 1.9(a), Duties to Former Clients, which reads:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person 's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
The Rule 1.9(a) phrase "substantially related matter" is defined by Rule 1.9(d) which reads:
(d) Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [new] client's position in the subsequent matter.
The issue before this Panel is whether Currier's representation of Phair in his 2013 effort to modify his divorce decree with Walton-Phair is: "a substantially related matter in which the person?s interests are materially adverse to the interests of the former client...."
On its face it might appear that it is not. Currier's 2003 defense of Crouch was for criminal sexual assault. In 2013 Currier represented Phair in a family matter against his former wife Walton-Phair. Crouch is not an opposing party. He has no legal relation to Walton-Phair or to her children. While Crouch and Walton-Phair are engaged to marry, engagements do not always survive.
However, Phair submitted a Motion to Modify, as advised and drafted by Currier, that made Crouch's criminal conviction for gross sexual assault a key part of its litigation strategy. Phair knew Walton-Phair was engaged to marry Crouch. His Motion to Modify specifically asked the court to bar Walton-Phair from associating with "sex offenders, criminals and abusers."
In effect, Phair's Motion to Modify could have forced Walton-Phair to choose between her children and Crouch, the man she was engaged to marry. This would be a powerful legal strategy. At the hearing on the Motion to Modify, Dunleavy called Walton-Phair as his witness and proceeded to question her on her relationship with Crouch. The testimony was damaging and the Court suggested the parties consider an agreement. As a result Walton-Phair capitulated.
There is no doubt Crouch's sexual assault conviction was more than tangentially related to Phair's Motion to Modify.
Nonetheless, Currier argues that he has not violated Rule 1 .9 (a). He had no plans to use confidential information. Crouch 's conviction for sexual assault and the fact that he is a registered sex offender were already public knowledge.
But the test of Rule 1.9 (a) is not what information the attorney plans to use. Pursuant to Rule 1.9 (d), the matter is "substantially related" when there is a "substantial risk" that past confidences might be used. Rule 1.9 (d) reads as follows:"
(d) Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [new] client 's position in the subsequent matter.
Emphasis added.
The Panel agrees with the Board's position that Currier did indeed know confidential information concerning Crouch that was not public. In its Disciplinary Petition the Board described this information as follows:
28. As a result of Currier 's prior representation of Crouch in 2003-2004, he obtained substantial confidential information relating to Crouch's history and background; the nature of his prior relationships with women; any propensities for violence or abuse that he might have; his addictions and substance abuse history; as well as other information that would be relevant in his current (Phair) client's claim that Judy Walton-Phair is exposing her children to "abusive men" and a "registered sex offender".
The Panel finds there was a substantial risk that confidential information known to Currier could have been used to assist Phair's Motion to Modify. The possibility alone that Currier might1 call Crouch as a witness increased the pressure on Walton-Phair to settle.
This Panel unanimously concludes that when Currier accepted Phair as a client, he violated Rule 1 .9 (a), Duties to Former Clients and Rule 8.4 (a), Misconduct.
Specifically, the Panel finds that Currier?s 2013 representation of Phair in his Motion to Modify was "substantially related" to his 2003 defense of Crouch for Gross Sexual Assault. There was a "substantial risk" that Currier could have used confidential information gleaned from his 2003 representation of Crouch to "materially advance" Phair's Motion to Modify. See Rule 1.9 (d).
The Panel further concludes that the proper sanction for Currier?s violations is Dismissal with a Warning. In reaching this conclusion the Panel considered the following factors set forth in M. Bar R. 7.1(e)(3)(B), namely, whether (1) the misconduct was minor, (2) there was little or no injury to the client, and (3) there is little likelihood of repetition by the attorney.
1. The misconduct was minor.
Currier?s violation was based on a misreading of Rule 1.9. Currier testified that he did review Rule 1 .9 and decided it did not apply to taking Phair as a client. Currier believed that he would not violate Rule 1 .9 (a) because any information he might use concerning Crouch was already public knowledge (e.g., Crouch?s convictions and listing on the sex registry). Currier failed to consider the restriction of Rule 1.9 (d), which barred him from representing Phair when there was "a substantial risk" that the confidential information he possessed about Crouch could have assisted Phair's Motion to Modify.
2. There is little or no injury to Walton-Phair.
Currier did indeed draft Phair's Motion to Modify and asked the Court to limit her association with Crouch. However, this was a strategy initiated by Phair, who informed Currier that Walton-Phair had exposed their children to abusive men. If Phair had engaged a different attorney, it is reasonable to assume this legal strategy would also have been pursued.
3. There is little likelihood of repetition by Currier of this error.
At his hearing on this matter Currier argued forcefully for his interpretation of Rule 1 .9, but there was no suggestion that he would not abide by the Panel's decision if it ruled against him.
Accordingly, the Board's Complaint against Richard L. Currier, Esq. is hereby dismissed, with the following warning to Attorney Currier:
Rule 1.9(a), as defined by Rule 1.9(d), sets forth your duty to your former clients. Unless your former client grants you informed permission in writing, you may not accept a new client if there is a substantial risk that confidential information learned from representing your former client would materially advance your new client 's case. This prohibition applies even if your former client will not be an actual party in any matter your new client might pursue.
Grievance Commission Panel D
James A. McKenna III, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emile Van Eeghen, Public Member
1Currier stated to the Board in his written response to Crouch 's complaint that Crouch "may not even be a witness."
Board of Overseers of the Bar v. Michael T. Pearson
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Docket No.: 13-397
Issued by: Board of Overseers of the Bar
Date: November 6, 2014
Respondent: Michael T. Pearson
Bar Number: 007425
Order: Reprimand
Disposition/Conduct: Diligence; Prejudicial Conduct; Misconduct; Unauthorized Practice of Law
With due notice, on November 6, 2014 Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), concerning misconduct by the Respondent, Michael T. Pearson (Pearson). This disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 30, 2014. Pearson failed to file any Answer to that pleading, causing the facts set forth and the misconduct alleged in that Petition to be admitted by him pursuant to M. Bar R. 7.1(e)(1).
At the hearing, Pearson was pro se and the Board was represented by Bar Counsel J. Scott Davis. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Pearson of Dover, New Hampshire was admitted to the Maine Bar in March 1992. While living in Ohio, he was administratively suspended in Maine in late 1995 until being reinstated in February 2005. His primary law practice is located in New Hampshire. He is currently registered in the Board?s records as an administratively suspended attorney in Maine and thereby prohibited from practicing law in Maine. He was so suspended by the Board on November 13, 2013 due to his failure to properly register and/or comply with related administrative requirements with the Board under the Maine Bar Rules for fiscal (and registration) year 2013.
Prior to his 2013 suspension, Pearson had been registered as an active, non-resident Maine attorney. As such, he was and remains subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. By the time of his misconduct in the complaint matter, Pearson was subject to the administrative suspension.
This disciplinary matter was commenced through Bar Counsel?s receipt of information reporting that on December 18, 2013 Pearson had engaged in the unauthorized practice of law in Maine. That action occurred in a contested family matter pending in the Portland District Court, specifically captioned Jeff O?Brien v. Cyrena Gilpatrick Docket No. PORDC-FM-2013-201. As a result of his engaging in that court litigation while suspended from practice in Maine, Pearson violated M. Bar R. 6(a)(1) and M. R. Prof. Conduct 5.5(a)(b) and 8.4(a)(d).
In his initial discussion with the Board?s administrative staff, Pearson claimed a prior lack of awareness of being so suspended in Maine. In his January 28, 2014 response letter to Bar Counsel, he admitted that on December 18, 2013 he appeared in the Portland District Court in a client?s family matter, and later filed pleadings or related documents in that action on December 27, 2013. He reiterated that same admission of his misconduct to the Grievance Commission Panel at the November 6, 2014 hearing.
By his failure to answer the Board?s formal charges, Pearson has further constructively admitted that because he had knowingly failed to properly register in Maine for 2013, he is presumed to know he would be suspended in Maine pursuant to the Maine Bar Rules. He has also admitted that given his longstanding bar membership in Maine (since 1992), he knew or should have known the registration/renewal calendar cycle and related due dates spanning late July into August of each year. In addition, to the extent that a change in his mailing address may have been relevant to his being so suspended, Pearson has admitted he knew that under the Maine Bar Rules he was required to so notify the Board of his new address, but failed to do so at the proper and required time. His conduct violated Maine Bar Rule 6(a) as well as M. R. Prof. Conduct 8.4(a)(d).
Based on the facts and admissions set forth above, Pearson agrees and admits that he engaged in violations of Maine Bar Rule 6(a)(1) and Maine Rules of Professional Conduct, Rules 1.3; 5.5(a)(b); and 8.4(a)(d).
The Maine Rules of Professional Conduct require attorneys to uphold their responsibilities to the public, clients and the courts. Due to Pearson?s actions, a court, opposing counsel, members of the public, colleagues and unsuspecting clients were misled to believe he was properly licensed to practice law in Maine. Moreover, due to his misrepresentation, a District Court judge understood and assumed status information that Pearson knew or should have known was inaccurate regarding his proper licensure and ability to practice law in Maine.
The Panel notes that Pearson has taken responsibility for his misconduct. He has no prior attorney disciplinary or sanction record in Maine. At the disciplinary hearing, Pearson expressed his remorse for his serious violations of the Maine Bar Rules and the Maine Rules of Professional Conduct.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional duties. Since the evidence supports a finding and Pearson agrees that he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Pearson?s waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Michael T. Pearson which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1(e)(3)(C)(4).
Dated: November 6, 2014
For the Parties
J. Scott Davis
Bar Counsel
Michael T. Pearson
Respondent, pro se
Peter C. Fessenden, Esq., Panel Chair
Thomas H. Kelley, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Scott D. Giese
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Docket No.: BAR-13-17
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 12, 2014
Respondent: Scott D. Giese
Bar Number: 004294
Order: Suspension
Disposition/Conduct: Diligence; Communication; Unreasonable/Excessive fee; Conduct that reflects adversely on the Lawyer's Honesty, Trustworthiness or Fitness; Conduct prejudicial to the Administration of Justice
EXTENDED
ORDER of SUSPENSION
M. Bar R. 7.2
ORDER of SUSPENSION
M. Bar R. 7.2
The Board of Overseers of the Bar (Board) initiated the above attorney disciplinary action on March 28, 2014 through its filing of an Expedited Petition for Temporary Suspension. By Order of April 4, 2014 this Court suspended Scott D. Giese from practicing law. Concurrent with that suspension, the Court ordered Giese?s law practice into Limited Receivership under the Board.
In preparation for final hearing of this disciplinary matter, the Court conducted a status conference to set the hearing for trial or for negotiated resolution. During the conference, Mr. Giese informed the Court that he did not oppose the Board?s request for a sanction order. Accordingly, the parties were given a deadline of September 17, 2014 to resolve the disciplinary case with a negotiated settlement. When no proposed order was filed with the Court, this matter was then set for contested hearing on November 10, 2014. The Court?s Executive Clerk notified both parties by U.S. mail. Additional notice of the hearing was relayed by electronic mail between the parties and the Clerk. No mail was returned to the Clerk?s office.
At that final hearing, the Board was represented by Deputy Bar Counsel Aria Eee. Mr. Giese did not attend but according to his communications with Attorney Eee, Giese reported his consent to the proposed sanction order incorporating a long-term suspension. The Court accepted a copy of Mr. Giese?s electronic communication as proof of such consent.
Scott D. Giese was admitted to the Maine bar in 2008. Prior to his January and suspension, Giese maintained a solo practice in Biddeford, Maine. He is not licensed in any other jurisdiction. The Court notes that subsequent to the January 6 2014 disciplinary hearing, four additional complaints against Giese were filed with the Board. Like the concerns regarding his previous misconduct, the later complaints detailed neglect and lack of communication by Giese. All total, the Board has received at least ten complaints against Mr. Giese. The Court notes that Giese did not respond to most of those complaint matters.
Following a review of the pleadings, the Petition for Temporary Suspension, the Affidavit of Assistant Bar Counsel (impounded) and the communications between the parties, the Court finds that Scott D. Giese engaged in multiple violations of the Maine Rules of Professional Conduct. Those violations spanned at least four (4) separate counts of misconduct as detailed below.
(Debra A. Sanders)
On January 2, 2014, former client, Debra A. Sanders (Sanders) filed a grievance complaint against Giese. In her complaint, Sanders alleged that Giese neglected her legal matter, failed to adequately communicate and failed to protect her interests. Even after the filing of her bar complaint, Sanders reengaged Giese in an attempt to have him finish the work he started for her. That engagement failed and Sanders made supplemental complaint filings against Giese. The Court finds that Giese?s failure to keep Sanders informed about the status of her family matter, failure to file the promised pleadings and his improper retention of her file constituted violations of the Maine Rules of Professional Conduct (M. R. Prof. Conduct).
As is evident from her communications to Giese, Ms. Sanders was dependent on Giese and she relied on him to properly resolve her legal matters. Giese?s failures with regard to the Sanders representation constituted violations of M. R. Prof. Conduct 1.2 [scope of representation]; 1.3 [diligence]; 1.4 [communication]; 1.15(b)(2)(iv); [safekeeping/return of client property] 1.16(d) [terminating representation]; and 8.4(a)(c)(d) [misrepresentation; prejudicial conduct].
(Deidre S. Studley)
On January 2, 2014, former employee, Deidre Studley (Studley) filed a grievance complaint against Giese. Studley?s complaint reported Giese?s misconduct with clients, practice mismanagement, and his failure to timely pay her wages. Within her complaint, Studley also detailed Giese?s personal conflict which occurred during the representation of a family law client. Giese filed a response to Studley?s complaint, largely denying her allegations. He did agree that he owed Studley some wage payments.
The Court finds that Giese violated M. R. Prof. Conduct 1.3 [diligence]; 1.4 [communication] and 8.4(d)[prejudicial conduct]. The Court further finds that his personal conflict with a client constituted a violation of M. R. Prof. Conduct 1.7(a)(2) [conflict].
(Susan J. and Joseph V. Macchia)
On January 10, 2014, former clients Susan and Joseph Macchia (the Macchias) filed a grievance complaint against Giese. The substance of that complaint regarded the Macchias? 2009 retention of Giese to pursue a civil action against their general contractor. Despite their initial belief that Giese was adequately pursuing their legal matter, the Macchias later discovered that Giese had not attended either to the filing or the service of the civil action. His misrepresentations to that effect were violative of the conduct rules and the Attorney?s Oath. Moreover, Giese failed to timely deliver the Macchias? file after his suspension and even upon their receipt of the file, it did not contain the original documents, photos and or compact discs. The Court finds that Giese?s actions in representing the Macchias constituted violations of M. R. Prof. Conduct 1.1 [competence]; 1.3 [diligence]; 1.4 [communication]; 1.15(b)(2)(iii)(iv); [safekeeping/return of client property] 1.16(d) [termination of representation]; and 8.4(a)(c)(d) [deceit; prejudicial conduct].
(Scott B. Buzzell)
Former client Scott B. Buzzell (Buzzell) filed a grievance complaint, a Petition for Fee Arbitration and a Lawyer?s Fund for Client Protection against Mr. Giese in March 2014. Within his complaint Buzzell alleged that Giese neglected his criminal matter, charged an excessive fee and failed to communicate. His actions in that regard were violative of M. R. Prof. Conduct 1.3[diligence]; 1.4(a)[communication]; 1.5(a)[excessive fee] and 8.4(d) [prejudicial conduct]. Despite the requirement to do so, Giese failed to answer Buzzell?s grievance complaint, in violation of M. R. Prof. Conduct 8.1(b).
Just prior to the temporary suspension, Mr. Giese had resumed active status following his initial two month suspension spanning from mid-January to Mid-March 2014. In that first disciplinary matter, Giese assented to a suspension based upon client neglect, prejudicial conduct and contact with a represented person. The Court notes that in the months after his April 2014 temporary suspension, six additional clients filed similar complaints of neglect, poor communication and excessive fees by Mr. Giese. Those latter complaints were filed after the Board submitted its Expedited Petition for Suspension. The Board notified those clients of Giese?s suspension and the closure of his office.
Additionally, nine (9) former clients have filed claims with the Lawyers? Fund for Client Protection (LFCP). Thus far, the Fund Trustees have awarded approximately $10,000 in claims while three (3) claims remain pending. The Board has relayed to the Court Mr. Giese?s reports of his inability to pay any fee awards or LFCP reimbursements. In that regard, even though the Fee Arbitration Commission has issued decisions in favor of his various former clients, Giese has failed to pay (or attempt to pay) those awards. The Court is aware that Mr. Giese has reported a lack of employment and an impermanent living arrangement. The Board has made repeated referrals to the Maine Assistance Program (MAP) to link Giese to that important resource.
Based upon the multitude of client complaints, the Court once again finds that Giese?s multiple violations of the Maine Rules of Professional Conduct are very serious. His failures denote an inability to manage his practice and properly interact/communicate with clients. He has demonstrated poor personal and professional judgment. Prior to his January suspension, Giese had practiced law for five years. It is clear to the Court that in building his solo practice, Giese failed to have adequate measures in place to attend to client needs, manage office operations, monitor legal matters and interact effectively and appropriately with clients. While Giese has reportedly experienced personal distress, his violations of the professional conduct rules threaten lasting injury to his former clients and to the public. Despite his non-appearance at this hearing, the Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. See Maine Bar Rule 2(a). Without a doubt, Giese?s mishandling of client funds and neglect of multiple legal matters exacted harm to former clients, members of the public and the court?s administration of justice. As a result, Giese should be sanctioned by a long term suspension.
Based upon the Court?s findings and conclusions, the Court imposes upon Mr. Giese a four year (6) month suspension from practice. In determining a sanction, the Court recognizes that a suspension of more than five years would constitute disbarment. With this suspension the Court also ORDERS the following:
Date: 11/12/2014
Joseph J. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Matthew E. Clark
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Docket No.: BAR-14-15
Issued by: Single Justice, Maine Supreme Judicial Court
Date: November 18, 2014
Respondent: Matthew E. Clark
Bar Number: 010030
Order: Suspension
Disposition/Conduct: Competence; Diligence; Communication; Excessive Fees; Misrepresentation and Prejudicial Conduct.
ORDER of SUSPENSION
M. Bar R. 7.2
M. Bar R. 7.2
The Board of Overseers of the Bar initiated this attorney disciplinary action on July 25, 2014 by the filing of an Information pursuant to M. Bar R. 7.1(e)(1). Mr. Clark filed an Answer to the Information on August 20, 2014, generally denying the Board?s allegations of professional misconduct.
Following subsequent discussions, the parties notified the Court that Mr. Clark was no longer contesting the Information. The Court scheduled final hearing for November 18, 2014. Notice of the hearing was also given to Frederick Black, complainant and former client of Mr. Clark.
At the hearing, Mr. Clark was pro se and the Board was represented by Deputy Bar Counsel Aria Eee. While Mr. Black did not attend, he did review the proposed Order the Board provided to him in advance of the hearing.
Matthew E. Clark was admitted to the Maine bar in 2006. From 2009 until his suspension in 2014, Mr. Clark practiced at a Waterville law firm. Prior to his January 2014 three-month suspension (also related to client neglect), Clark had not otherwise been disciplined for attorney misconduct. Since that suspension, Clark has either not worked or restricted his work to work not requiring a license to practice law.
Following a review of the pleadings and the parties? proposal, the Court finds and Clark agrees that he engaged in several violations of the Maine Rules of Professional Conduct.
On February 3, 2014 Frederick G. Black filed a grievance complaint against Mr. Clark. That complaint related to his company, MSR Recycling and its need for appellate representation during a building permit dispute with the Town of Madison. Black?s complaint outlined his retention of Clark in January 2013, for prosecution of a Superior Court appeal matter. By October, 2013 however, Black became frustrated with Clark?s lack of contact and information concerning that appeal. He then discharged Clark from the representation.
In his 2014 complaint, Black detailed Clark?s failure to communicate, excessive fees and neglect of the appellate matter. Moreover, despite Clark?s assurances that he had filed MSR?s brief, he actually had not done so. Black did not learn of Clark?s neglect until successor counsel obtained his file.
Clark agrees that he failed to adequately communicate with Mr. Black, that he was untruthful and that he failed to pursue Black?s appellate rights. Due to Clark?s failures, Black was barred from filing an appeal regarding his loss of the building permit. The Court finds and Clark agrees that his failure to file the brief exacted serious harm to MSR Recycling?s legal interests. The Court also finds that Clark?s billings to Black for work he did not perform were improper and excessive.
Based upon all of the above-outlined findings, the Court concludes that Clark committed violations of M. R. Prof. Conduct 1.1[competence]; 1.3 [diligence]; 1.4 [communication]; 1.5(a) [excessive fee]; and 8.4(a) (c)(d) [misrepresentation and prejudicial conduct].
As the Court concluded during Mr. Clark?s initial suspension matter, Clark?s multiple violations of the Maine Rules of Professional Conduct were serious and warranted the Court?s imposition of a meaningful sanction. The Court notes, however, that Clark?s misconduct toward Black occurred contemporaneously with his earlier misconduct toward a different client. The parties agree that significant for the Court?s consideration is the fact that Clark?s misconduct occurred during a time when he was experiencing a very debilitating depression. That fact certainly does not excuse Clark?s behavior but the parties agree that it is a mitigating factor for the Court?s consideration.
The Court is mindful that the primary purpose of attorney discipline proceedings is not punishment but rather protection of the public. Clark has not practiced law since January 2014 and he does not intend to return to the practice of law. He informed the Court that with the assistance of MAP and others, he participated in intensive treatment for his depression and has experienced some relief from that serious condition. Clark expressed remorse and regret for the manner in which he treated Mr. Black. He agrees that such treatment was unfair, improper and unprofessional.
The Court has also considered as a mitigating factor the fact that Clark does not intend to request a return to the practice of law. As such, there is no purpose served in further suspensions of his license. By the terms of this Court?s January 2014 Order, Clark was suspended and then directed to remain on inactive status. Before he may return to practicing law in Maine, Mr. Clark will be required to petition the Court for such reinstatement. See M. Bar R. 7.3(j)(5)(6).
Accordingly, effective November 18, 2014, the Court retroactively suspends Matthew E. Clark for the three (3) month period, January - April 2014, that he previously served pursuant to this Court?s January 27, 2014 Order, nunc pro tunc. The Court also orders that Clark remain upon the list of registered, inactive attorneys. The Court further orders the following conditions in this matter:
On or before December 1, 2014, Mr. Clark shall provide to any remaining clients notice of his suspension, consistent with M. Bar R. 7.3(i)(1).
Mr. Clark may not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients.
If Mr. Clark intends to resume the practice of law, the parties have agreed and the Court hereby orders that Clark agree to submit his practice to monitoring by an attorney proposed by the parties or otherwise approved by Bar Counsel. Prior to any return to practice, the parties shall submit a proposed Order for Monitoring to the Court. Clark shall not be permitted to resume practicing law until the Court has reinstated him and issued the aforementioned Monitoring Order.
Prior to his petitioning for such reinstatement, Clark shall contract with the Maine Assistance Program (MAP) for appropriate services and/or supports. Attorney Nugent or his successor at MAP shall notify the Court and Bar Counsel if Clark fails to make contact or otherwise follow the MAP recommendations.
Finally, in the event a grievance complaint is received by Bar Counsel after November 19, 2014, Bar Counsel may elect to file a new disciplinary matter directly before the Court pursuant to the terms of this Order and Maine Bar Rule 7.2(b).
Date: November 18, 2014
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Pamela S. Holmes, Esq.
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Docket No.: 13-145
Issued by: Board of Overseers of the Bar
Date: December 15, 2014
Respondent: Pamela S. Holmes, Esq.
Bar Number: 008973
Order: Dismissal with Warning
Disposition/Conduct: Knowingly disobeying an obligation under the rules of a tribunal
REPORT OF A PANEL OF THE GRIEVANCE COMMISSION
This matter was the subject of a hearing before the Grievance Panel on November 24, 2014. The office of Bar Counsel was represented by Aria Eee, and the respondent was represented by Peter DeTroy.
The Complainant, who is the Judge of Probate for York County, and the Respondent have a historical and a troubled relationship. From February, 2002 to July, 2003, Respondent worked as an attorney in the Complainant?s law firm, at that time, Nadeau and McGarry. Subsequently, the Respondent left the firm and became a partner of the Complainant?s former law partner, McGarry, for some seven years. This resulted in the initiation of litigation between the parties in Superior Court. Subsequently, Complainant filed a number of complaints against Respondent before the Grievance Commission, and Complainant, in his private law practice, commenced a civil action on behalf of one of his clients against a number of parties, including a claim naming the Respondent personally as a party Defendant. That action was dismissed as against Respondent.
That the Complainant harbors personal bias against the Respondent is not in dispute (?The personal bias I harbor against Attorney Holmes and against certain others is not unprecedented among judges?? Board Exhibit 11, page 2)
It is the position of Bar Counsel that Respondent violated three (3) of the Rules of Professional Conduct; namely, 3.4(c), 4.4, and 8.4:
Rule 3.4. Fairness to opposing party and counsel
A lawyer shall not:
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
Rule 4.4. Respect for rights of third persons; inadvertent disclosures
(b) A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection as trial preparation material.
(1) shall not read the writing or, if he or she has begun to do so, shall stop reading the writing;
(2) shall notify the sender of the receipt of the writing; and
(3) shall promptly return, destroy or sequester the specified information and any copies.
The recipient may not use or disclose the information in the writing until the claim is resolved, formally or informally. The sending or receiving lawyer may promptly present the writing to a tribunal under seal for a determination of the claim.
***
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;
The immediate facts giving rise to this grievance commenced shortly after the Complainant was elected in November of 2012 as Probate Judge of York County. Under the prior Probate judge, Respondent and several other attorneys in her office had been practicing in the York Probate Court, both as privately retained attorneys and accepting appointment by the court, in cases pertaining to protective proceedings.
Shortly after his election, but prior to Complainant?s taking office (in January of 2013), Complainant sent an e-mail to the Register of Probate, indicating that he did not want Respondent or her associated attorneys to be considered for court appointments in such cases, as he doubted their integrity. The e-mail was a public record as broadly defined in the Freedom of Access Law, 1 M.R.S.A. 402(3), and does not appear to be within any of the statutory exceptions set forth in that statute 1. The Respondent, in conversation with the Register, learned of the existence of this e-mail and requested a copy. After consulting with the County Manager, and through him, the attorney for the County, Respondent was forwarded a copy of the email. Subsequently, hearing from other sources that there was another e-mail from the Complainant that discussed her firm, and cognizant of the history with the Complainant, Respondent filed a request ?under the Freedom of Information Act? (intending to refer to Maine?s Freedom of Access statute) for production of the other e-mail. The request was forwarded to the County Manager and to the County?s attorney, and it was ultimately brought to the attention of the Complainant, who, by this time had been sworn in as Probate Judge. The Complainant issued an order in a pending case (Board Exhibit 7) requiring that the November email be sealed, that the Respondent must destroy all copies of it and certify her compliance within 7 days of the order.
This created a dilemma for the Respondent, who was faced with unattractive alternatives of complying with this order and destroying a public record, without any assurance that a copy of the document would be preserved as part of a record on appeal, or disobeying an order of the court. See M.R. Prof. Conduct 3.4(a).
Respondent took steps to effectively seal the e-mail and ensure that it was unavailable within and outside her office, and made no further use of the email, but it is undisputed that she failed to comply with the order to destroy it and certify that she had done so.
Complicating the issues faced by Respondent was the pendency of a series of cases her office had in the Probate Court. Some of the billings for the appointed counsel cases had been approved only at reduced level, and a review by Respondent or her associates of other cases entailing appointed counsel from other offices, indicated that the fees of other law offices were not being similarly reduced. One of her associated attorneys had requested that several of her cases be transferred to another Probate Judge; and in several cases the Complainant declined to transfer the cases, and in others, rather than transfer the cases, Complainant treated the request as a request by counsel to withdraw and he appointed replacement counsel.
Respondent sought the advice of another experienced and trusted attorney in York County and also that of Attorney Peter DeTroy. Attorney DeTroy suggested that Respondent file a complaint with the Committee on Judicial Responsibility and Disability against the Complainant, but Respondent, having already been sued by, and grieved against by the Complainant, hoping that the problem would simply go away, and also concerned about the likelihood that the progress of her clients? cases could be held up, declined to file that Complaint.
There was some discussion of an appeal, but this entailed both a significant risk that an appeal of a non-final judgment would be found by the Law Court not to be within any of the established exceptions to the final judgment rule and thus that the appeal would not be entertained; and there was also the certainty of increasing the cost to the clients by inflicting upon them the expense of an appeal, simply because of whom they chose to employ as counsel, or whom the prior Probate Judge had appointed as counsel; and there was also the absolute consequence that an appeal (if not dismissed by the Law Court as interlocutory) would impose a delay of at least five or six months upon the progress of the clients? cases.
In response to these orders Respondent filed written objections to the Complainant?s orders and attached, as an exhibit, copies of the e-mail she had been ordered to destroy. There is no evidence that the Complainant has ordered the Respondent?s objections ? to which were attached copies of the offending e-mail ? to be sealed.
Nonetheless, the Complainant filed this grievance asserting that the Respondent violated the Maine Rules of Professional Conduct by failing to comply with his court order to destroy the November e-mail.
The panel is mindful that the Respondent did not in fact comply with the court?s order, which required the destruction of a copy of a public record that had been lawfully obtained by the Respondent.
Because this e-mail was a public record under the Freedom of Access Law, of course, it was a document that could have been obtained by anyone. Even if the Respondent had obeyed the court order, there was nothing to prevent her ? or anyone ? from turning around and requesting and obtaining the document anew, under the provisions of 1 M.R.S.A. 408-A.
However, the Respondent reasonably perceived that she was faced with serious consequences ? not merely to herself but also to the other lawyers in her office, and most importantly to her clients, by complying with the order, thereby risking the absence of a record for an appeal; and, in the alternative, filing an interlocutory appeal , without any certainty that the Law court would entertain it, and thereby certainly inflicting a serious delay in the clients? then-pending litigation (Rule 3.2, failing to expedite litigation) and imposing substantial cost to the clients.
Rule 4.4 The Panel can quickly dispose of Rule 4.4, in that the rule addresses an entirely different set of issues, relating to a lawyer having ??reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection?? Here, the document is a public record and hence cannot be said to be within the ambit of Rule 4.4.
Rule 3.4(c) It is clear from the evidence that the Respondent did in fact disobey an express order of the court. It is also clear that the very same rule guards against willful destruction of evidence by prohibiting a lawyer from ??unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.? Every attorney has had the experience of having a judge sustain an objection to a piece of his or her proffered evidence and persisting in offering the evidence on some other ground - often in opposition to the court?s prior ruling, and sometimes occasioning the ire of the judge2. Nonetheless, the Rule should not be construed as an invitation to disobey a court order.
Rule 8.4 The allegation of conduct that is prejudicial to the administration of justice, is always and necessarily a matter of degree and judgment. Under the circumstances of this case, we cannot find a violation of Rule 8.4.
The grounds for the Commission to issue a dismissal with a warning are as follows:
Me. Bar R. 7.1(E)(3)(B):
(B) Dismissal With A Warning. If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred; that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney, the panel may dismiss the complaint with a warning ?
Here, where the document which Respondent failed to destroy is one, the production of which could have been compelled anew under the Freedom of Access Law, even had it been destroyed in compliance with the court?s order, the commission finds that the misconduct can be said to be minor.
Although we recognize that the failure of counsel to comply with a court order can never be characterized as inflicting no injury upon the legal system, the provisions of the rule do not require a finding of no injury; rather the language of the rule refers to little or no injury; in addition, it cannot be described as any tangible injury to a client, the public, the legal system or the profession. The document which was subject of the destruction order was a public one that is available to all citizens.
Finally, there is no showing that there is any likelihood of repetition here. The only likelihood of repetition could arise if the Complainant once again orders the destruction by Respondent of a public record, which the panel deems - and hopes ? to be unlikely.
Having thus concluded, we proceed to dismiss, but include this warning: The compliance by counsel with a direct order of a court is a serious matter that should not in the future be overlooked.
December 15, 2014.
BY:
Robert S. Hark, Esq., Regular Panel B Member
Sallie Crittenden, Panel B Lay Member
Maurice A. Libner, Esq., Chairman Panel B
1At the time of the creation of the document, the Complainant had been elected but not yet sworn in as Probate Judge; hence this was not a communication between a probate judge and the Register. Had this not been the case, it is possible that the exception in 1 M.R.S.A. 402(3)(B) for ??Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding?? might have been applicable.
2This is a function of the lawyer?s obligation to be competent (Rule 1.1) and exercise diligence (Rule 1.3) on behalf of a client.
Board of Overseers of the Bar v. Richard Salewski
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Docket No.: BAR-14-17
Issued by: Single Justice, Maine Supreme Judicial Court
Date: December 2, 2014
Respondent: Richard Salewski
Bar Number: 007185
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
Order for Appointment of Proxy M. Bar R. 7.3(f)(1)
Upon the November 25, 2014 Petition for Appointment of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Attorneys Hylie West and Jennifer Villeneuve are appointed as the Co-Receivers of Richard Salewski?s law practice. As such Attorneys West and Villeneuve shall have the sole authority to:
1. Secure the professional files, client funds and file property of the Salewski law office; 2. Obtain signatory authority over all Salewski law office bank accounts (IOLTA and operating/office accounts); 3. Obtain access to Mr. Salewski?s computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail; 4. Inventory the open and closed client files; 5. Give priority attention to client matters which are open and time sensitive. Notify all courts and relevant Registries that Attorneys West and Villeneuve are serving as Mr. Salewski?s Co-Receivers until further order of this Court. 6. Notify clients or former clients that Attorneys West and Villeneuve are serving as Co-Receivers to the Salewski law practice and provide opportunity for clients to consult with the Receivers or retrieve their property. 7. The Receivers shall access and utilize Mr. Salewski?s operating and IOLTA accounts to prudently and appropriately manage and/or (if necessary in the Receiver?s discretion) wind down the law practice. The Receivers may pay expenses, as they deem appropriate given available funds or anticipated receivables to the firm. The Receivers may also hire temporary office staff and take other action as necessary and appropriate to manage and or wind down the Salewski law practice.
As a service to the bar, the Receivers acknowledge that they shall serve in their capacities on a pro bono basis, although if there are sufficient assets (including receivables) from Mr. Salewski or his law practice, the Receivers may be reimbursed from those assets. The Receivers shall submit a quarterly written report to the Court and the Board containing a record of time worked.
Likewise, the Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Salewski and or his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Salewski, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorneys West and Villeneuve shall act as Receivers until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Attorneys West and Villeneuve so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, either Attorney West or Attorney Villeneuve may be engaged by any former client of Mr. Salewski provided that the Proxy informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receivers employment by any client.
The Receivers are subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client?s retention of either Receiver as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
The Receivers shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within ninety (90) days of this Order, the Receivers shall file a status report with the Court, with a copy to the Board, c/o Deputy Bar Counsel Aria Eee, Esq.
Dated: December 2, 2014
Andrew M. Mead, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jennifer Murphy
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Docket No.: GCF #14-090
Issued by: Grievance Commission
Date: December 16, 2014
Respondent: Jennifer Murphy
Bar Number: 004839
Order: Reprimand
Disposition/Conduct: Failure to file "Notice Affidavit" after suspension; Failure to respond to Bar Counsel
M. Bar R. 7.1(e)(2)(E)
On December 16, 2014 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), on the issue of sanctions arising from misconduct by the respondent Jennifer Murphy. This disciplinary proceeding was commenced by a petition pursuant to M. Bar R. 7(1)(e) filed by Bar Counsel on September 18, 2014, alleging violations of M. Bar R. 7.3(i)(2)(A) and -(B), and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and -(d).
Attorney Murphy was served in hand by the Kennebec County Sheriff?s Office on September 29, 2014. She filed no answer to the petition. Pursuant to M. Bar R. 7.1(e)(1), failure to file an answer means that the facts set forth and the misconduct alleged in the petition are admitted. Based on the operation of the rule and the unopposed allegations of Bar Counsel, the panel finds as follows: (a) Attorney Murphy was admitted to the practice of law in Maine in 2003. (b) Effective November 13, 2013, she was administratively suspended from practicing law by the Board of Overseers for failure to comply with the annual registration statement and continuing legal education filing requirements of M. Bar. R. 6(a) and 12(a). (c) Attorney Murphy failed to file the required ?notification affidavit? attesting to her compliance with her obligation to inform clients and parties in interest of her suspension. (d) On May 13, 2014, Attorney Murphy promised to respond to the bar grievance initiated by Bar Counsel in a telephone conversation with Karen Mondor, Bar Counsel staff, but failed to do so. (e) The pending disciplinary petition was filed on September 18, 2014. (f) Attorney Murphy was served in hand with the Disciplinary Petition and summons by Kennebec County Deputy Sheriff Cook on September 29, 2014. (g) Attorney Murphy failed to file a written response to Bar Counsel as required by M. R. Prof. Conduct 8.1(b). (h) On December 11, 2014, Attorney Murphy was informed of the hearing on December 16 in a telephone conversation with Marilyn DeMichele, Bar Counsel staff.
At the hearing on December 16, the Board was represented by Bar Counsel J. Scott Davis, Esq.. Attorney Murphy did not appear.
Bar Counsel asks that the panel forward this matter to the Maine Supreme Judicial Court for further proceedings before a single justice or, as a fallback, issue a public reprimand.
Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional responsibilities. Among the factors to be considered are: the duties violated; whether the attorney acted intentionally, knowingly or negligently; any actual or potential injury caused by the misconduct; and the existence of any aggravating or mitigating circumstances. M. Bar R. 7.1(e)(3)(C).
Annual registration is a simple duty with which an attorney can comply simply. Irrespective of its simplicity, annual registration is important. It is the mechanism by which the public is informed of the persons qualified and licensed to practice law in Maine. It represents a reaffirmation by those persons of their commitment to their duties and responsibilities as attorneys.
In furtherance of the critical duty of competence, each attorney is required to complete minimum annual requirements for continuing legal education, and to certify his or her compliance with those requirements to the Board of Overseers as part of the registration process.
Attorney Murphy failed to register in 2013 or to complete the required legal education requirements in the prior year to qualify for her continued active membership in the bar. She was suspended from practice in November 2013.
An attorney who is suspended from practice for any reason is required to give immediate notice of the suspension to his or her clients in the form prescribed by rule. S/He is required to certify to the Board of Overseers, by affidavit, that that proper notice has been given. Such notification ? certified by the affidavit ? informs those most likely to need to know that an individual is no longer qualified and licensed to act as an attorney. Failure to file the required ?notification affidavit? is a violation of M. R. Prof. Conduct 8.1(b), 8.4(a) and M. Bar R. 7.3(i).
The Board of Overseers of the Bar and Bar Counsel are responsible to the public and to the Maine Supreme Judicial Court to ensure that attorneys comply with their professional obligations. Persons holding themselves out as attorneys have the duty to cooperate with and respond to the Board and Bar Counsel. The duties of cooperation and response were assumed voluntarily by each attorney as a condition of his or her admission to the bar. In addition, those duties make practical sense because the system would break down quickly if lawyers were permitted to play ?catch me if you can.? Failure to respond to Bar Counsel is a violation of M. R. Prof. Conduct 8.1(b).
Despite the seemingly technical nature of Attorney Murphy?s misconduct, it is not minor, and erodes the bedrock of Maine?s professional system. In the absence of any communication from her, we can infer only that her actions are intentional. That inference is buttressed by the fact that her violations are continuing. We have no evidence of actual harm. While we hope that none occurs, the possibility of serious harm is ever-present, although evidence of the likelihood of such harm was not offered. Bar Counsel stated that he did not know if Attorney Murphy was continuing to practice law.
We have been presented with no mitigating circumstances. Attorney Murphy received calls from Bar Counsel staff on two occasions to remind her of the duties of registration, education and cooperation. It is astonishing that she has made no apparent effort to comply, or even to respond. Her spurning of Bar Counsel?s courtesies and her willful disregard of this grievance proceeding are aggravating circumstances.
Attorney Murphy is already suspended from the practice of law. A further hearing before a single justice would burden an already-busy Court for no meaningful purpose. Sanctions are readily available were she to practice law in violation of her suspension. The panel concludes that a public reprimand is the appropriate sanction for the violations alleged and established, which is hereby issued to Attorney Jennifer Murphy.
Date: December 16, 2014
Peter C. Fessenden, Esq., Panel Chair
Justin E. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Philip S. Cohen, Esq.
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Docket No.: GCF# 13-382
Issued by: Grievance Commission
Date: January 6, 2015
Respondent: Philip S. Cohen, Esq.
Bar Number: 007930
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Report Finding of Probable Cause for Filing of Information with the Court
Pursuant to a Disciplinary Petition dated September 17, 2014, and proper notice being provided, a disciplinary hearing open to the public was conducted pursuant to M. Bar R. 7.1(e) (2), on December 19, 2014 at the Maine District Court in Waterville, Maine. This Disciplinary Petition alleged that Attorney Cohen engaged in conduct unworthy of an attorney, and violated specific portions of the Maine Rules of Professional Conduct including M. R. Prof. Conduct 3.4(c) and 8.4(a)(b)(d).
The disciplinary hearing was held before Panel D of the Grievance Commission consisting of Chair James A. McKenna III, Esq., Mary A. Denison, Esq., and public member Emilie van Eeghen. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Cohen, the Respondent was present and was represented by Walter F. McKee, Esq.
Pursuant to M. Bar Rule 7.1 (e) (3) (C), based upon the Petition, exhibits admitted, and testimony presented at the hearing, the Panel finds that there is probable cause for the Respondent?s suspension or disbarment and hereby directs Bar Counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 7.2(b).
DATED: 01/06/2015
James A. McKenna III, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Paul E. Peck, Esq.
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Docket No.: BAR-14-9
Issued by: Supreme Judicial Court
Date: January 15, 2015
Respondent: Paul E. Peck, Esq.
Bar Number: 003527
Order: Decision and Order
Disposition/Conduct: Order vacating 4/10/2014 Decision and Order issued by Grievance Commission
Board of Overseers of the Bar v. James M. Cameron
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Docket No.: BAR-11-2
Issued by: Maine Supreme Judicial Court
Date: February 5, 2015
Respondent: James M. Cameron
Bar Number: 006893
Order: Resignation
Disposition/Conduct: Resignation
James Cameron was administratively suspended from the practice of law in Maine by the Board of Overseers of the Bar on October 19, 2010. As a result of his federal convictions for multiple counts of child pornography, by Orders dated August 29, 2011 and September 12, 2014 he was further suspended by the Court pursuant to M. Bar R. 7.3(d)(1).
On December 9, 2014 Mr. Cameron submitted a resignation letter with supporting Affidavit to the Board of Overseers of the Bar. Upon its consideration of Mr. Cameron's resignation filings, the Board recommended that the Court accept Mr. Cameron's resignation from the Maine bar.
As a result, upon review of Mr. Cameron's resignation filings and the Board's recommendation, the Court finds good cause exists to grant the requested resignation. Accordingly, it is hereby ORDERED:
James M. Cameron's resignation from the Maine bar is accepted, pursuant to M. Bar R. 7.3(g)(3), effective immediately. As required by M. Bar R. 7.3(g)(3), Mr. Cameron's supporting Affidavit of December 9,2014 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Mr. Cameron seek reinstatement to the Maine bar, however, that Affidavit shall then be made public without further order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 7.3(g)(3).
Dated: February 5, 2015
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Ray R. Pallas, Esq.
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Docket No.: BAR-15-1
Issued by: Maine Supreme Judicial Court
Date: February 5, 2015
Respondent: Ray R. Pallas, Esq.
Bar Number: 001594
Order: Receiver Appointment
Disposition/Conduct: Appointment of Receiver
Upon the Petition for Appointment of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), the Court issues the following Order.
As of this date, Molly B. Sinclair, Esq. is appointed the Receiver of Attorney Ray R. Pallas's law practice. Attorney Sinclair shall:
As Receiver, Attorney Sinclair shall submit written reports to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. Attorney Pallas's Estate shall be the first choice for source of payment for those expenses/disbursements. If insufficient assets are available from Attorney Pallas's Estate, the Receiver may contact the Board or apply to the Court to locate an alternate payment source for the expenses.
Attorney Sinclair shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7.3(f).
Attorney Sinclair shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney Sinclair may be engaged by any former client of Attorney Pallas provided that she informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client.
The Receiver is subject to all Maine Rules of Professional Conduct, including M. R. Prof. Conduct 1.7, 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of Attorney Sinclair as successor counsel is not a per se conflict of interest solely by reason of her appointment as Receiver.
Attorney Sinclair shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-six (126) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Deputy Bar Counsel Aria Eee, Esq.
Dated:February 5, 2015
Ellen A. Gorman, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Albert L. Speziali, Esq.
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Docket No.: BAR-14-3
Issued by: Maine Supreme Judicial Court
Date: May 22, 2014
Respondent: Albert L. Speziali, Esq
Bar Number: 003051
Order: Reciprocal Discipline
Disposition/Conduct: Dismissed without Prejudice
This matter was initiated based upon the State of Connecticut's Statewide Grievance Committee's February 26, 2014 referral to Maine Bar Counsel of the "Stipulation and Order" of December 9, 2013 in the Connecticut Superior Court matter of Disciplinary Counsel vs. Albert Speziali (KNL CV 08- 4008831 S).
Speziali was admitted to the Maine Bar in 1985 but has never practiced in Maine and remains registered here on an inactive nonresident basis.
That 2013 Connecticut Order references imposition of Speziali's suspension from practice in Connecticut, retroactive to the period of September 30, 2008 to April 28, 2009 for his violation of Rule 1.15 of the Connecticut Rules of Professional Conduct.
This Court has received and reviewed Speziali's sworn to and notarized letter/affidavit of May 16, 2014. From that review, the following relevant facts are noted:
As a result of its review of this matter, the Court approves the parties' agreed upon proposed recommendation that based upon the background facts in this matter, particularly concerning Speziali's lengthy earlier removal from practice to properly address his disability such that he has now returned to a Court-supervised active practice in Connecticut, no present purpose is served by the imposition of any current discipline in Maine. Accordingly, this matter is hereby ordered dismissed without prejudice.
DATED: May 22, 2014
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jonathan Reitman, Esq.
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Docket No.: BAR-14-16
Issued by: Maine Supreme Judicial Court
Date: October 14, 2014
Respondent: Jonathan Reitman, Esq
Bar Number: 000624
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
Upon the September 19, 2014 request for Appointment of Receiver filed by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), this Court Orders the following:
As of this date, Sebastian Dennen, Esq. is appointed as the Receiver of Attorney Jonathan Reitman's law practice. As such Attorney Dennen shall have the sole authority to:
As a service to the bar, Attorney Dennen acknowledges that he shall serve as Receiver on a pro bono basis, although if there are sufficient assets from the Estate or from Attorney Reitman's law practice (including receivables), Attorney Dennen may be compensated from those assets. Attorney Dennen shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked in the event the Court orders payment to him.
Likewise, Attorney Dennen shall submit an itemized list of any wind-down disbursements made to effect the terms of this Order. Attorney Reitman's law practice and or his Estate shall be the first choice for source of payment for those disbursements.
Attorney Dennen shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 7 .3(f).
Additionally, Attorney Dennen so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 7.3(f).
Furthermore, Attorney Dennen may be engaged by any former client of Attorney Reitman's so long as Attorney Dennen informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client.
Attorney Dennen 1S subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client's retention of Attorney Dennen as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Dennen shall be protected from liability for professional services rendered as the appointed Receiver in accordance with this Order.
Finally, within ninety (90) days of this Order, Attorney Dennen shall file a status report with the Court, with a copy to Deputy Bar Counsel, Aria Eee, Esq.
Dated: October 14, 2014
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Merritt T. Heminway, Esq.
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Docket No.: GCF#14-291
Issued by: Grievance Commission
Date: February 18, 2015
Respondent: Merritt T. Heminway, Esq.
Bar Number: 009870
Order: Reprimand
Disposition/Conduct: Competence, Diligence, Communication
On January 29, 2015, with due notice and pursuant to Maine Bar Rule 7.1 (e)(2)(E), Panel C of the Grievance Commission conducted a public disciplinary hearing concerning alleged misconduct by Respondent Merritt T. Heminway, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Stipulated Disciplinary Petition on December 12,2014.
Attorney Heminway was present and represented by James M. Bowie, Esq. The Board was represented by Bar Counsel J. Scott Davis. The complainant in this matter, Okita Otolembo, and his current attorney, James Wagner, were each present at the stipulated hearing. Bar Counsel had provided Attorney Wagner with an advance copy of this proposed order.
Having reviewed the stipulated findings as presented by counsel, the Panel makes the following disposition:
Respondent Merritt T. Heminway, Esq., of Portland, Maine has been an attorney duly admitted to the Maine Bar since October 2005, engaging in the practice of law in Maine. As such, he is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct).
With assistance from Attorney Wagner, Mr. Otolembo complained to the Board concerning the manner in which Attorney Heminway handled his immigration matter before the Dallas Immigration Court. The facts surrounding that grievance complaint are summarized as follows:
Attorney Heminway admits and the Panel so finds that he failed to properly communicate with Mr. Otolembo, that he failed to request a continuance of the March 14, 2012 hearing date in a timely fashion, and that he failed to follow through with the preparation and filing of a motion to re-open the immigration proceeding as he promised to Mr. Otolembo.
Attorney Heminway further agrees and admits that his conduct violated the following provisions of the Maine Rules of Professional Conduct: Rule 1.1 (competence); l.3 (diligence); and Rule 1.4(a) (communication). He took responsibility for his misconduct, and expressed remorse by apologizing to Mr. Otolembo at the disciplinary hearing.
The Panel further notes that the purpose of bar disciplinary proceedings under the Maine Bar Rules is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to discharge their professional duties properly. See M. Bar R. 2(a). Bar Counsel confirmed that Attorney Heminway has no prior disciplinary or sanction record on file with the Board. Since the evidence supports a finding and Attorney Heminway agrees he violated referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves that purpose.
The Panel accepts the agreement of the parties, including Attorney Heminway's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this complaint is a Public Reprimand. Pursuant to M. Bar R. 7.1(e)(3(C),(4) the Panel hereby issues that Reprimand to Merritt T. Heminway, Esq.
Peter C. Fessenden, Esq., Panel Chair
Robert S. Hark, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR 13-20
Issued by: Maine Supreme Judicial Court
Date: December 19, 2014
Respondent: William B. Cote
Bar Number: 002892
Order: Receiver Discharge Order
Disposition/Conduct: Discharge of Receiver
THIS MATTER having been heard by the undersigned Justice of the Court, upon the motion of the Receiver herein for an order discharging the Andrucki & Associates firm as Receiver of the law practice of William B. Cote, the Court ORDERS as follows:
Accordingly, it is hereby ORDERED:
Joseph M. Jabar, Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Charles Perrault
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Docket No.: BAR#13-15
Issued by: Maine Supreme Judicial Court
Date: March 5, 2015
Respondent: Charles Perrault
Bar Number: 003330
Order: Order Staying Suspension
Disposition/Conduct: Certification that Suspension is no Longer in Effect
Charles Perrault has moved for an Order of the Maine Supreme Judicial Court confirming that he has satisfactorily completed his three-month suspension. Bar Counsel agrees to the issuance of such an order.
It is hereby DECLARED that the suspension imposed by the Court's order of November 21, 2013, is no longer in force. Mr. Perrault is otherwise in good standing to practice before the courts of the State of Maine.
Dated March 5, 2015
For, and at the direction of, the Court
Matthew Pollack
Executive Clerk
Board of Overseers of the Bar v. Stephen E.F. Langsdorf, Esq.
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Docket No.: GCF#14-192
Issued by: Grievance Commission
Date: April 6, 2015
Respondent: Stephen E.F. Langsdorf, Esq.
Bar Number: 003500
Order: Dismissal with Warning
Disposition/Conduct: Improper contact with Represented Person, Conduct prejudicial to the administration of justice
On April 6, 2015, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E) and Board of Overseers of the Bar Regulation No. 51, concerning alleged misconduct by the Respondent Stephen E.F. Langsdorf, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar on February 11, 2015.
At the hearing, Attorney Langsdorf was present and represented by Attorney Phillip E. Johnson, and the Board was represented by Assistant Bar Counsel Alan P. Kelley. Prior to the disciplinary proceeding, the parties submitted a proposed Stipulated Report for the Grievance Commission Panel's review and consideration. The complainant, Ethyl Potvin, was present at the hearing and had earlier been provided by Assistant Bar Counsel Kelley with a copy of the proposed report.
Having reviewed the proposed report as presented by counsel, the Panel makes the following disposition:
Respondent Stephen E.F. Langsdorf, Esq. of Augusta, Maine has been at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. He was admitted to practice in Maine in 1987, and has been associated with the law firm of Preti Flaherty since that time.
Attorney Langsdorf represented Kris and Jonathan Pound in a business dispute with the complainant, Ethyl A. Potvin. The Pounds and Ms. Potvin were co-owners of an insurance agency in Lewiston, Maine. The business dispute revolved around management issues and the authority of the individual owners to make business decisions on behalf of the agency. Ms. Potvin was represented by her own attorney in connection with that dispute.
During the course of his representation of the Pounds, but prior to litigation that ensued, Attorney Langsdorf attended a meeting of the shareholders and officers of another organization known as the Weber Insurance Group (WIG). WIG was an organization set up to pool the interests of independently owned insurance agencies such as the agency co-owned by the Pounds and Ms. Potvin. Kris Pound, Jonathan Pound and Ethyl Potvin were all shareholders in WIG. At the time, the Pounds were having a shareholder dispute with WIG, and they asked Attorney Langsdorf to attend the WIG meeting to speak on their behalf. Ethyl Potvin was also in attendance at the meeting in her capacity as treasurer and shareholder of WIG.
During the course of the WIG meeting, Attorney Langsdorf addressed the Chair of the WIG Board and answered questions posed by the Chair and other shareholders and officers in attendance. The meeting involved discussion of the dispute between the Pounds and Ms. Potvin, and in talking about the dispute, Attorney Langsdorf addressed some comments to Ms. Potvin who had not brought her own attorney to the meeting. Attorney Langsdorf was aware that Ms. Potvin was represented by counsel at the time with respect to her dispute with the Pounds over their jointly owned insurance agency.
After the WIG meeting, the Pounds commenced litigation against Ms. Potvin. The lawsuit was contentious because it involved co-owners of a business who had significant differences between them, but a settlement agreement was eventually reached during the course of trial. Pursuant to the terms of the settlement, the parties agreed to enlist the services of an independent neutral to resolve future disputes that might arise between them concerning the management of the insurance agency.
The neutral prepared a retention agreement that he circulated to counsel as a PDF attachment to an e-mail. In the interests of his clients, Attorney Langsdorf concluded that some changes should be made to the retention agreement before it was signed by the parties. He proposed those changes through an e-mail to opposing counsel with an attached copy of the neutral's retention letter on which Attorney Langsdorf?s proposed changes were made in red line to clearly identify them. Attorney Langsdorf?s legal assistant had made the redline changes. In order to make them, the legal assistant converted the PDF document to a Word document so that it could be edited. In the conversion process, the image of the neutral's signature was carried over into the Word document.
The parties remained in disagreement over the terms of the retention agreement. Ms. Potvin went ahead and signed the agreement as originally proposed by the neutral. Attorney Langsdorf?s clients preferred the revised agreement that contained Attorney Langsdorf?s changes. Accordingly, Attorney Langsdorf had his clients sign the revised agreement and he forwarded it to opposing counsel with a cover letter identifying it as a revised retention agreement and stating that changes had been made to make the agreement consistent with the settlement agreement reached by the parties. Unrecognized by Attorney Langsdorf at the time, the copy of the revised agreement signed by the Pounds still contained the image of the neutral's signature that had been carried over in the earlier PDF to Word conversion process. The neutral had not yet approved the changes, but within 20 minutes of sending the revised agreement to opposing counsel, Attorney Langsdorf sent an e-mail to the neutral asking if the changes were acceptable to him. The neutral responded that he did not object to any of the changes so long as all parties agreed with them.
Attorney Langsdorf states that he never intended to mislead anyone and there is no evidence that he had such an intention. Nevertheless, inadvertently forwarding the retention agreement with the image of the neutral's signature without an express clarification that the neutral had not signed off on the revised document could have caused other involved parties, including Ms. Potvin, to believe that the neutral had already approved the revised agreement.
On April 8, 2014, Ms. Potvin filed a grievance complaint against Attorney Langsdorf alleging that he had engaged in misconduct during the course of his representation of the Pounds. She complained that he had initiated improper direct communications with her outside the presence of her legal counsel during the WIG meeting, and that he also acted inappropriately in revising the neutral's retention agreement using a version that contained an image of the neutral's signature.
The Maine Rules of Professional Conduct require attorneys to uphold certain responsibilities to opposing parties and third parties. Specifically, Rule 4.2(a) states that, in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. The Panel understands that the WIG meeting attended by Attorney Langsdorf presented unique circumstances. The purpose of the meeting was to discuss the Pounds' relationship to WIG, and Ms. Potvin attended the meeting because she was a shareholder and officer of WIG. Nevertheless, during the course of the meeting, the conversation extended into issues that were the subject of the dispute between the Pounds and Ms. Potvin, concerning which Ms. Potvin was represented by counsel, and Mr. Langsdorf directed some comments to Ms. Potvin that were relevant to the dispute. Mr. Langsdorf now recognizes and admits that he should have been more cautious in his communications and that he should have steered a path clear of any communications with Ms. Potvin relevant to the dispute between her and his clients. Attorney Langsdorf agrees his conduct was in violation of M. R. Prof. Conduct 4.2(a) (Communication with Person Represented by Counsel) and expressed remorse to Ms. Potvin at the hearing for not having drawn a strict boundary governing those communications with her.
With respect to the neutral retention agreement, the Panel accepts Attorney Langsdorf?s representation that he had no intention to mislead anyone with regard to the neutral's signature or the neutral's approval of changes to the retention agreement. Nevertheless, the document was e-mailed from his office with an image of the neutral's signature without an explicit statement that the neutral had not yet approved the revised document. This action, despite the inadvertence involved, violated M. R. Prof. Conduct, 8.4(d) (Conduct Prejudicial to the Administration of Justice). Attorney Langsdorf recognizes that he should have taken greater care to ensure that the signature of the neutral was not misrepresentative in any way.
The Panel finds that the misconduct of Attorney Langsdorf was minor and that there was no harm to any client, the public, the legal system or the profession. The Panel further finds that Attorney Langsdorf has accepted full responsibility for his actions and that there is little likelihood of repetition. Under all the circumstances, a dismissal with a warning is appropriate.
Therefore, the Panel accepts the agreement of the parties, including Attorney Langsdorf?s separately executed waiver of any objection to this Report and waiver of appeal, and concludes that the appropriate disposition of this case is a Dismissal with a Warning. 1
Date: April 6, 2015
Mary A. Denison, Esq., Panel Chair
Gretchen L. Jones, Esq., Panel Member
Emilie van Eeghen, Public Member
1 A dismissal with a warning is not discipline. See M. Bar R. 7.1(e)(3)(B).
Board of Overseers of the Bar v. Brian D. Condon, Jr., Esq.
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Docket No.: GCF#14-233
Issued by: Grievance Commission
Date: April 10, 2015
Respondent: Brian D. Condon, Jr., Esq.
Bar Number: 008588
Order: Reprimand
Disposition/Conduct: Fees, Meritorious Claims and Contentions, Candor Toward the Tribunal, Respect for Rights of Third Persons, Misrepresentation, conduct prejudicial to the administration of justice
On April 10, 2015, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1 (e)(2)(E) , concerning misconduct by the Respondent, Brian D. Condon, Jr., Esq. The Board of Overseers of the Bar (Board) initiated this disciplinary proceeding by its filing of a December 10, 2014 Disciplinary Petition. Attorney Condon timely answered that Petition. Prior to the scheduled hearing date, the parties notified the Board Clerk that they had reached agreement as to a proposed resolution of this matter.
At the April 10, 2015 hearing, Attorney Condon appeared pro se and the Board was represented by Bar Counsel J. Scott Davis. Complainant Jayne Colby was also in attendance at the hearing. Prior to that date, the parties submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Bar Counsel had also provided Ms. Colby with a copy of the proposed Report, in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Brian D. Condon has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law, subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Condon was admitted to the bar in 1997 and maintains a solo practice in Winthrop, Maine.
On May 13, 2014, Jayne S. Colby, a retired Massachusetts attorney, filed a complaint against Attorney Condon. That complaint primarily concerned Attorney Condon's March 2014 small claims filing for legal fees, years after representing Ms. Colby in a real estate insurance matter. The parties agree and the Panel so finds that there was no fee agreement delineating Attorney Condon's 2006/2007 representation of Ms. Colby.
Following its review of the Disciplinary Petition, Attorney Condon's Answer and the parties' agreement, the Panel finds that Attorney Condon filed the small claims matter months after the statute of limitations on such action had run. As a result, Attorney Condon's March 2014 law suit was filed without a non-frivolous basis to do so, in violation of M. R. Prof. Conduct 3.1(a); 4.4(a) and 8.4(d). Specifically, the Panel finds that Attorney Condon knew or should have known prior to the mediation (in the small claims action) that his suit was barred by the statute of limitations. Although Attorney Condon previously explained his belief to Bar Counsel that he had a defense to the statute of limitations problem, (due to the timing of some of his bills) he now acknowledges and accepts the finding that the law suit he initiated against Ms. Colby was in fact, filed beyond the statute of limitations. The Panel notes that Attorney Condon decided at the parties' April 2014 mediation and discussions therein, to move to dismiss the small claims action against Ms. Colby.
Following its review of this complaint matter, the Panel further finds that Attorney Condon's delayed and unspecific billing for the prior representation was improper since there was no agreement with Ms. Colby to fee amounts, hourly rates or the method of billing. Attorney Condon's pursuit of 10% interest on the $945.00 amount reportedly owed but disputed by Ms. Colby was likewise improper, as Ms. Colby did not agree to it and no court ordered any charges of interest. Moreover, Attorney Condon did not file all of the billing slips with his small claims action as was required; yet did so when he produced bills for the grievance complaint response, in apparent violation of M. R. Prof. Conduct 3.3(a)(3). As a whole, Attorney Condon's billing practices constituted violations of M. R. Prof. Conduct 1.5(a)(b) and 8.4(d). With regard to his charges of legal fees which pre-dated the effective date of the M. R. Prof. Conduct, Attorney Condon also violated then applicable M. Bar R. 3.3(a). Ultimately, due to her disagreement with his billing and work performed, Ms. Colby did not make any payment to Attorney Condon.
As referenced above, according to the District Court's docket record, Attorney Condon filed a motion to dismiss the small claims action in May 2014. The District Court granted that Motion and dismissed the action with prejudice. In his appearance before the Grievance Commission, Attorney Condon apologized to Ms. Colby and acknowledged his regret for his conduct relating to the action he filed against her.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Condon's actions, Ms. Colby was subjected to an unmeritorious and burdensome legal action. While Attorney Condon may have believed he was correct to pursue his former client for fees reportedly owed to him, he did not properly document that debt or properly pursue it years later. Accordingly, the Panel finds Attorney Condon violated M. R. Prof. Conduct 1.5(a)(b) [Fees]; 3.1 [Meritorious Claims and Contentions]; 3.3 [Candor Toward the Tribunal]; and 4.4 [Respect for Rights of Third Persons]; and 8.4(c)(d) [misrepresentation; conduct prejudicial to the administration of justice]. The Panel notes that Attorney Condon has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Condon acknowledged the impropriety of his actions and expressed remorse to Ms. Colby and to the Panel for his violations of the Maine Rules of Professional Conduct.
It is well established that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). In this instance, since the evidence supports a finding and Attorney Condon agrees that he in fact did violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Within the issuance of this decision is the Panel's consideration of Attorney Condon's disciplinary history, including his earlier suspension(s) from practice in 2007 as well as a public reprimand in 2008. The Panel notes that generally, when a lawyer has been sanctioned for the same or similar misconduct and engages in further acts of misconduct that cause injury to a client, the public, the legal system, or the profession, the appropriate sanction is suspension. ABA Standards for Imposing Lawyer Sanction ?8.2 (1986). See Board of Overseers v. Bruce S. Billings, BAR-90-16 (1991). In this case however, the Panel has determined that Attorney Condon did not engage in any misconduct that was similar to his prior reprimand or suspension matters. Furthermore, in mitigation, Attorney Condon has accepted responsibility for his misconduct in this current matter.
Therefore, the Panel accepts the agreement of the parties, including Attorney Condon's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Brian D. Condon which is now hereby issued and imposed upon him pursuant to M. Bar R. 7.1 (e)(3)(C), (4).
Date: April 10, 2015
Thomas H. Kelley, Esq., Panel Chair
A.J. Hungerford, Esq., Panel Member
John C. Alfano, Public Member
Board of Overseers of the Bar v. Jeffrey Pickering, Esq.
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Docket No.: GCF#14-143
Issued by: Grievance Commission
Date: May 8, 2015
Respondent: Jeffrey Pickering, Esq.
Bar Number: 001644
Order: Dismissal
Disposition/Conduct: None
On April 24, 2015, at the Penobscot Judicial Center in Bangor, Maine, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, Jeffrey Pickering, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar through Bar counsel on October 8, 2014, alleging violations of M. R. Prof. Conduct 1.1, 1.3, 1.4(a) and 8.4(a)(d).
At the disciplinary hearing, the Board was represented by Bar Counsel J. Scott Davis, Esq. and Respondent was present and represented by Kari A. Wells-Puckett, Esq. Joint exhibits #1 through #11 and #13 were admitted without objection. The Panel heard testimony from the following witnesses:
Jeffrey Pickering, Esq.
Herbert M. Adams, IV
Assistant District Attorney Carrie Linthicum
Having heard the testimony and reviewed the evidence submitted, the Panel hereby makes the following findings:
On October 21, 2011, Mr. Adams, who has a lengthy criminal record, was charged by a six-count indictment in Aroostook County Superior Court Docket No. CARSC-CR-11-443 with criminal threatening (Class C), two counts of assault (Class D), possession of revoked, mutilated, fictitious or fraudulent license/ ID card (Class E), disorderly conduct, offensive words, gestures (Class E) and unlawful sexual touching (Class D). Mr. Pickering was appointed as Mr. Adams? legal counsel on March 30, 2012. (He was also appointed to represent Mr. Adams on another criminal matter which is not the subject of this proceeding.) As a result of plea negotiations, after a jury was selected, on February 8, 2013, Mr. Adams pleaded guilty to the two misdemeanor assault charges, but the felony and all other charges were dismissed. Mr. Adams was sentenced on February 26, 2013. One of the victims presented a compelling oral statement to the court and Mr. Adams was sentenced to two consecutive 9 month sentences and fined $300.
Mr. Adams filed a Grievance Complaint as to the professional conduct of Mr. Pickering on March 4, 2014. Mr. Adams alleged that Mr. Pickering was ineffective, ignored the facts and evidence of the case, would not take appointments at his office and would not return documents. (Exhibit 1) Mr. Adams made other allegations in subsequent filings with the Board. (Exhibits #3, #6 and #8) The Panel found several discrepancies between Mr. Adams? testimony, his submissions to the Board and the transcripts of the plea (Exhibit #10) and sentencing (Exhibit #11). These discrepancies include the number of times he met with Mr. Pickering, his presence at the selection of his jury and the fact that he entered a guilty plea in the Aroostook County Superior Court.
While the Panel heard testimony regarding office practices that could be strengthened (such as file organization, office coverage, phone issues and itemized bills for time spent on non-court appointed cases), the Panel is convinced from the testimony, including the testimony of Carrie Linthicum, the prosecutor in Mr. Adams' case, that Mr. Pickering provided competent representation to Mr. Adams and that he acted with reasonable diligence and promptness in that representation. Therefore, the Panel finds no violation of M. R. Prof. Conduct 1.1 and 1.3.
The Board further contends that the fact that Mr. Pickering did not give Mr. Adams a paper copy of the discovery produced in the case is a violation of M. R. Prof. Conduct 1.4(a). Although it may be a good practice in most cases, the Board did not cite a rule or any authority at the hearing which requires or even recommends that attorneys provide criminal defendants with actual paper copies of the discovery turned over by the prosecution. Mr. Pickering cited a good example of when providing such copies could be harmful to the criminal defendant. There was no evidence that Mr. Adams requested copies of the discovery prior to his sentencing. Nevertheless, it is clear to the Panel that Mr. Pickering reviewed the discovery with his client to prepare his theories and strengthen his ability to negotiate for a plea bargain during their conferences in Mr. Pickering?s office and at the Caribou courthouse. Mr. Pickering would not have known of the absence of a knife when Mr. Adams was arrested without that review. He would not have known about Mr. Madore's wife's apology without that review. He would not have known the details set forth in the Alford plea had it not been for that review and those conversations. (Exhibit #10, p.7; Exhibit #11, pp. 8 - 15) Mr. Pickering's system of communicating with his client, while not perfect, resulted in Mr. Adams being present at the many court dates scheduled during the pendency of the case. It resulted in Mr. Pickering having the necessary information from his client to be able to negotiate a very favorable plea deal with the prosecutor. Although the sentence imposed was harsher than usual for the charges, the Panel is satisfied that Mr. Pickering's communication with his client was not in violation of M.R. Prof. Conduct. 1.4(a). Likewise, Mr. Pickering?s conduct did not violate M.R. Prof. Conduct. 8.4(a)(d).
Based upon the evidence and arguments submitted, the Panel unanimously concludes that the Board has not proven by a preponderance of the evidence that Mr. Pickering has engaged in misconduct subject to sanction under the Maine Bar Rules or the Maine Rules of Professional Conduct. Accordingly, pursuant to M. Bar R. 7.1(e)(3)(A), the Disciplinary Petition is dismissed.
Dated: May 8, 2015
M. Ray Bradford, Jr., Esq., Panel Chair
Sarah McPartland-Good, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. William B. Cote
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Docket No.: BAR#13-20
Issued by: Maine Supreme Judicial Court
Date: May 21, 2015
Respondent: William B. Cote
Bar Number: 002892
Order: Order and Decision
Disposition/Conduct: Suspension still in effect
On April 15, 2015 the Court noticed the parties for a status conference to be held on May 4, 2015 regarding the disability suspension of William B. Cote.
Appearing on May 4, 2015 on behalf of the Board of Overseers of the Bar were Aria Eee, Deputy Bar Counsel and Paul Chaiken, Special Counsel. Despite notice to Mr. Cote at his home address, he did not attend the conference.
Following the May 4 conference, this Court Orders the following, pursuant to M. Bar R. 7.3(e):
William B. Cote remains suspended from the practice of law until further Order of the Court. Consistent with the provisions of M. Bar. R. 7.3(e)(4) and 7.3(j), Mr. Cote may file a Petition for Reinstatement and related Questionnaire with the Executive Clerk and the Board of Overseers; however he is not permitted to return to practice unless and until the Court grants such a petition.
Dated: May 21, 2015
Justice Joseph M. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Kevin M. Joyce, Esq.
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Docket No.: GCF#14-310
Issued by: Grievance Commission
Date: June 2, 2015
Respondent: Kevin M. Joyce, Esq.
Bar Number: 008119
Order: Reprimand
Disposition/Conduct: Diligence, Termination of Representation, Conduct Prejudicial to the Administration of Justice
Board of Overseers of the Bar v. Alice A. Neal, Esq.
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Docket No.: GCF#14-362
Issued by: Grievance Commission
Date: June 2, 2015
Respondent: Alice A. Neal, Esq.
Bar Number: 004161
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Fees, Return of Client Property
M. Bar R. 7.1(e)(2)(E); 7.1(e)(3)(C)
On June 2, 2015, with due notice and pursuant to Maine Bar Rule 7.1 (e)(2)(E), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Alice A. Neal, Esq. This disciplinary proceeding was commenced on February 27, 2015 by the Board's filing of a Stipulated Disciplinary Petition.
At the June 2, 2015 hearing, Attorney Neal was pro se and the Board was represented by Aria Eee, Deputy Bar Counsel. Lauren K. Wayne, who is the Complainant in this proceeding, did not attend the stipulated hearing, although Bar Counsel did provide her with an advanced copy of this proposed order. Ms. Wayne has had the opportunity to remark on the proposal and her comments have been considered by the Grievance Commission Panel.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Alice A. Neal, Esq., of Portland, Maine was at all times relevant hereto an attorney duly admitted to the practice of law in Maine. As such she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Neal was admitted to the Maine Bar in 2007 and at the time of the relevant events, Neal was a solo practitioner with a varied civil law practice; she is now employed in a different capacity and has virtually no pending cases.
In May 2012, Ms. Wayne and her spouse retained Attorney Neal for a second parent adoption matter. Following such retention, Wayne paid $1000.00 for the case to be filed and completed. Although Neal intended to perform the necessary legal services by October 2013, she had accomplished minimal work on the adoption matter. During that time period, the clients were led to believe that Neal had filed the adoption petition and were simply awaiting a final hearing. Starting in early 2014, however, the clients became concerned and began requesting updates regarding the status of their adoption matter. Despite their multiple attempts to reach Attorney Neal, they were unsuccessful and she proved essentially unresponsive to their contacts. As such Neal's conduct was violative of M. R. Prof. Conduct 1.3
In July 2014, Wayne filed a complaint with the Board detailing her concerns about Neal's apparent neglect of the adoption and lack of client communication.
Attorney Neal agrees that she did not provide adequate representation to Ms. Wayne and her spouse. By way of explanation, Neal has recounted to Bar Counsel the various personal challenges she faced during that time period and while in the process of winding down her solo practice. She agrees that her actions were in violation of multiple professional conduct rules, primarily including 1.3[diligence]; 1.4[communication] 1.5(a) [fees] and 1.15(f) [return of client property]. Attorney Neal has since refunded the advanced fee and returned the original documents so that her former clients can proceed with their adoption matter.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to their clients and as officers of the court. Due to Attorney Neal's actions, Ms. Wayne and her spouse experienced unfair delays in their important legal matter. They were distressed by Attorney Neal's lack of communication and failure to return their documents and legal fees. Attorney Neal has accepted responsibility for her poor treatment of these clients and acknowledged the upset and distress it has caused them.
The Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence supports a finding and Attorney Neal agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Neal's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 7.1(e) (3) (C), (4), the Panel hereby issues that Reprimand to Alice A. Neal, Esq.
Date: June 2, 2015
James A. McKenna III, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. In Re Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: June 25, 2015
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Reinstatement Denied
Disposition/Conduct: Petition for Reinstatement Denied
JUDGMENT
Edwin R. Jonas III has filed a petition for reinstatement to the Maine bar pursuant to M. Bar R. 7.3(j). I conducted a de novo hearing in the matter on April 27 and 28, 2015. See M. Bar R. 7.3(j)(6). Jonas personally appeared at the hearing, and was represented by James M. Bowie, Esq. Deputy Bar Counsel Aria Eee, Esq., represented the Board of Overseers of the Bar. The following witnesses testified at the hearing: Jonas, Frederick Popovitch, Edward Murphy, Roderick Hannah, and Philip Defelice.
I have considered the testimony of witnesses presented during the de novo hearing in April, the documents admitted in evidence at that hearing, the findings and conclusions made by various courts in prior proceedings in which Jonas was a party, and the parties' arguments. To ensure that the basis for my findings is clear, in various places throughout this decision, I have included citations to the record evidence and Jonass litigation history on which I relied in making those findings.1 Some of the cases were specifically provided by the parties at hearing, and others were found in electronic databases that are publicly available.
Based on the evidence presented at the de novo hearing, I make the following factual findings by clear and convincing evidence. See M. Bar R. 7.3(j)(5). Jonas graduated from law school in 1974. That same year, he was admitted to the bar of Pennsylvania, and was then admitted to the bar of New Jersey in 1975. He engaged in private practice in Pennsylvania, and then in New Jersey.
In 1987, Jonas took and passed the Maine bar exam and was admitted to the Maine bar. Shortly thereafter, he and his wife separated. A contentious and protracted series of divorce proceedings followed, spanning multiple decades and several jurisdictions. It is Jonass conduct during these proceedings that ultimately led to his professional disciplinary troubles. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005), affd, 889 A.2d 1055 (N.J. 2006); Pl. Ex. 10.
A. New Jersey
Jonas and his wife, Linda, divorced in 1990. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005). At the time, they had three minor children. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Bd. Ex. 21.
Post-judgment litigation between Jonas and Linda continued through the first half of the 1990s. Linda moved several times to enforce the divorce judgment. Jonas v. Jonas, No. FM-04-259-89, Docket (N.J. Family Ct.). Jonas, in turn, filed numerous motions to reduce his spousal support obligation, to reconsider, to stay enforcement, for a change of venue, to compel Linda to undergo an evaluation by a vocation/rehabilitation expert, and the like, resulting in three separate appeals to the New Jersey Appellate Division between 1990 and 1995. Jonas v. Jonas, No. FM-04-259-89, Docket (N.J. Family Ct.); Jonas v. Jonas, No. A-3734-95-T5/A-1950-96-T5 (N.J. Super. Ct. App. Div. Dec. 19, 1997); Pl. Ex. 23. The New Jersey Supreme Court also denied Jonass petition for certiorari in 1992. Jonas v. Jonas, 614 A.2d 618 (N.J. 1992). By 1995, custody of the children had been awarded to Jonas, and Linda had been ordered to pay him child support. As Jonas explained during the hearing, her obligation to pay him, however, was offset by his obligation to pay her spousal support.
In 1995, a series of decisions that Jonas had made was discovered, changing the course of his life. Apparently tired of being required to pay what he considered to be an unfair amount of spousal support, Jonas took action to undermine the divorce judgment, avoid his support obligations, misrepresent his financial status, and interfere with Lindas contact with the children. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005); Jonas v. Jonas, No. A-3734-95-T5/A-1950-96-T5 (N.J. Super. Ct. App. Div. Dec. 19, 1997).
On August 10, 1995, while the parties were in court to dispute their most recent competing motions concerning child support and spousal support obligations, Linda moved for an order to show cause with the New Jersey Superior Court. In that document, Linda asserted that Jonas was secretly liquidating assets and hiding those proceeds in accounts in the Cayman Islands, and that he planned to move with the children to the Cayman Islands. Jonas v. Jonas, No. A-3734-95-T5/A-1950-96-T5 (N.J. Super. Ct. App. Div. Dec. 19, 1997). Jonas denied Lindas claims, characterizing them as "absolutely outrageous, frivolous, hysterical, and ridiculous." In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005); Jonas v. Jonas, No. A-3734-95-T5/A-1950-96-T5 (N.J. Super. Ct. App. Div. Dec. 19, 1997).
The court (Page, J.), apparently having accepted Jonass representations that he had no plan to liquidate assets or remove the children from the United States, denied Lindas request that custody of the children be immediately granted to her; denied her request that their passports be surrendered; denied her request that Jonas be required to post a bond; and set the matter for a hearing to be held on September 21, 1995. To maintain the status quo until that hearing could be conducted, the court did issue an order on August 10, 1995, requiring that the children could not be removed from a five-state area consisting of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia, and prohibiting Jonas from transferring any assets valued at over $15,000. In re Jonas, No. DRB 05 170 (N.J. Disciplinary Review Bd. Sept. 2, 2005); Jonas v. Jonas, No. A-3734-95-T5/A-1950-96-T5 (N.J. Super. Ct. App. Div. Dec. 19, 1997).
Shortly thereafter, Jonas filed a motion to vacate that order. In response, Linda filed affidavits indicating, inter alia, that, contrary to Jonass assertions, he was negotiating to sell an income-producing asset. The court ordered that Lindas counsel hold the childrens passports until further order.
Jonass response was to seek Judge Pages recusal and a change of venue. The court denied both motions, and the previously-scheduled hearing was held over three days during September of 1995. Jonas failed to appear at the hearing, despite having been given notice of the hearing. Jonass attorney, Frederick Popovitch, represented to the court that he did not know where Jonas was. Jonas v. Jonas, No. A-3734-95-T5/A-1950-96-T5 (N.J. Super. Ct. App. Div. Dec. 19, 1997). When Attorney Popovitch testified in April of 2015, he stated that unbeknownst to [him], [Jonas] had been planning to flee with the two younger boys.
The evidence presented in hearings through 1995 demonstrated that Lindas concerns regarding Jonass management of his assets and accounts were well founded:
Lindas concerns regarding Jonass plan to take the children to the Cayman Islands were also well founded:
During the April 2015 hearing, Jonas testified that the New Jersey Superior Court Judge Page had dealt with him so unfairly that he could only assume that the court was corrupt and conspiring with Linda and her attorney, or demonstrating personal animus against him. A review of Judge Pages 1995 and 1996 orders, however, demonstrates that the courts actions were reasonable and rational. To the extent that the remedies imposed became more severe, they did so only as Jonass conduct became increasingly egregious:
At the hearing in April, Jonas attempted to explain his actions in 1995, 1996, and 1997 by asserting that he believed the court was either biased against him or actually corrupt, and that he was suffering from depression and anxiety. If Jonas had not compounded the lack of judgment and integrity he demonstrated from 1995 until 1997 through his actions over the next twenty-plus years, I would have little trouble accepting Jonass explanation and his acknowledgement of responsibility and remorse. As the following recitation shows, however, Jonas continued with his single-minded and grossly erroneous belief that he did not have to comply with court orders. His admission that he is persistent and bull headed, although not inaccurate, does not justify his subsequent behavior.
By 2006, Jonass divorce proceedings in New Jersey were again in full swing. Linda again moved to enforce the prior judgments with regard to child support, spousal support, and other expenses; Jonas once again requested an accounting of the trust assets and appointment of an independent receiver, and again alleged that Lindas actions throughout the matrimonial proceedings had been fraudulent. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008); Pl Ex. 27. When Jonas failed to attend an April 2006 hearing on those motions, the fugitive disentitlement doctrine, which bars a litigant from seeking relief in a court whose jurisdiction he has otherwise evaded, became an issue. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008); see Matsumoto v. Matsumoto, 792 A.2d 1222, 1227-37 (N.J. 2002); Pl. Ex. 27. At Jonass request, the court agreed to continue the hearing to allow counsel an opportunity to research the issue, but required Jonas to personally appear at the next hearing date. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008); Pl. Ex. 27.
Jonas did not appear at that next hearing date and, as a result, on May 4, 2006, the New Jersey trial court issued a judgment in which it granted the relief requested by Linda and, based on the fugitive disentitlement doctrine, dismissed without prejudice Jonass various requests for relief. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008); Jonas v. Jonas, No. FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 23, 2006); Jonas v. Jonas, FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 4, 2006); Bd. Ex. 7, 10. The court stated that if Jonas posted a sufficient bond to cover his outstanding judgments and personally appeared before the court, all outstanding warrants would be vacated and Jonas could be heard on the substance of his requests. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008); Jonas v. Jonas, FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 4, 2006). In orders issued later that month, the court awarded Linda $243,000 for unpaid spousal support from 1999 to 2005; $18,000 for unpaid child support for 1999; $4759.50 for Jonass share of medical insurance and expenses; $103,991.05 for attorney fees and costs Linda incurred from 1999 to 2005 attempting to enforce the prior New Jersey orders in New Jersey and elsewhere; $147,205.35 in interest; ongoing spousal support of $3000 per month; and counsel fees and costs of $7552.50 for defending the 2006 proceedings. Jonas v. Jonas, No. FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 23, 2006); Jonas v. Jonas, No. FM-04-259-89, Order for Counsel Fees (N.J. Super. Ct. Chancery Div. May 23, 2006); Bd. Ex. 10A. In total, Jonas was ordered to pay Linda over $695,000. Jonas v. Jonas, No. FM 04 259-89 (N.J. Super. Ct. Chancery Div. May 23, 2006); Jonas v. Jonas, No. FM-04-259-89, Order for Counsel Fees (N.J. Super. Ct. Chancery Div. May 23, 2006); see Jonas v. Jonas, No. DV-09-388, 2011 Mont. Dist. LEXIS 104 (Dist. Ct. July 14, 2011).
In ruling on Jonass appeal from those orders, the Appellate Division held that the trial courts application of the fugitive disentitlement doctrine was reasoned and tempered given Jonass obstinate refusal to comply or properly respond to court orders, and stated, His defiance is especially egregious in light of the fact that he was an attorney-at-law of this State and was suspended in this State and others for his willful evasion of court orders. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008). The Appellate Division applied the fugitive disentitlement doctrine to Jonass appeal, and dismissed the appeal on that basis. Jonas v. Jonas, No. A 5241-05T1, 2008 N.J. Super. Unpub. LEXIS 1006 (N.J. Super. Ct. App. Div. Jan. 30, 2008). The New Jersey Supreme Court denied Jonass petition for a writ of certiorari. Jonas v. Jonas, 950 A.2d 905 (N.J. 2008).
Rather than satisfy the 2006 judgments, however, Jonas filed two back to back identical post-judgment motions in the trial court seeking relief from those 2006 judgments and, as on prior occasions, an accounting and appointment of an independent receiver. Jonas v. Jonas, No. A-1118-10T2, 2011 N.J. Super Unpub. LEXIS 3111 (N.J. Super. Ct. App. Div. Dec. 29, 2011), cert. denied, 40 A.3d 733 (N.J. 2012); Jonas v. Jonas, No. FM-04-259-89 (N.J. Super. Ct. Chancery Div. Sept. 17, 2010); Jonas v. Jonas, No. FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 15, 2009); Bd. Ex. 7A, 7B, 12. Jonass only contention in the motions was that, because his attorney could not find any warrant for his arrest, he was not a fugitive. Jonas v. Jonas, No. A-1118-10T2, 2011 N.J. Super Unpub. LEXIS 3111 (N.J. Super. Ct. App. Div. Dec. 29, 2011). Those attempts were, predictably, unsuccessful, as were his subsequent appeals from the denials of his motions. Jonas v. Jonas, No. A-1118-10T2, 2011 N.J. Super. Unpub. LEXIS 3111 (N.J. Super. Ct. App. Div. Dec. 29, 2011), cert. denied, 40 A.3d 733 (N.J. 2012); Jonas v. Jonas, No. FM-04-259-89 (N.J. Super. Ct. Chancery Div. Sept. 17, 2010); Jonas v. Jonas, No. FM-04-259-89 (N.J. Super. Ct. Chancery Div. May 15, 2009).
B. Florida
Meanwhile, in 1991, Jonas was admitted to the Florida bar. Fla. Bar v. Jonas, No. SC06-695, Report of Referee (Fla. Jan. 23, 2007); Bd. Ex. 4A. Sometime between 1995 and 1997, Jonas moved to Florida. Linda then instituted proceedings in Florida to domesticate the New Jersey judgments so that those judgments could be enforced in that state. See Jonas v. Jonas, 155 So. 3d 1289 (Fla. Dist. Ct. App. 2015) (vacating and correcting Jonas v. Jonas, 39 Fla. L. Weekly D 2545 (Fla. Dist. Ct. App. 2014)). In response, Jonas launched multipleand nearly identicalcollateral attacks on the New Jersey judgments in which he filed various claims against Linda, all essentially asserting that Linda had squandered or mismanaged the trust assets, seeking an accounting of the trust, and challenging the enforceability of the New Jersey judgments on the ground that they were obtained through Lindas fraud. See Jonas v. Jonas, 155 So. 3d 1289 (Fla. Dist. Ct. App. 2015). He also sued her attorney, Gold, making the same claims. See Jonas v. Gold, 58 So. 3d 396 (Fla. Dist. Ct. App. 2011); Jonas v. Fid. Natl Title Ins. Co., 44 So. 3d 596 (Ct. Dist. Ct. App. 2010).
As any individual with any training in the law should have anticipated, Jonass efforts in Florida were unsuccessful. The Florida courts recognized that Jonass remedy for attacking the New Jersey judgments was in New Jersey itself. See Jonas v. Jonas, 155 So. 3d 1289 (Fla. Dist. Ct. App. 2015).
The Florida court allowed Linda to domesticate the New Jersey judgments and awarded Linda additional attorney fees. See Jonas v. Jonas, 155 So. 3d 1289 (Fla. Dist. Ct. App. 2015); Jonas v. Jonas, No. CD 97-5825 FB (Fla. Cir. Ct. Sept. 19, 2002); Jonas v. Jonas, No. CD 97-5825 FB (Fla. Cir. Ct. Sept. 19, 2002); Bd. Ex. 6. On Jonass appeals, the Florida Court of Appeal affirmed. See Jonas v. Gold, 58 So. 3d 396 (Fla. Dist. Ct. App. 2011); Jonas v. Fid. Natl Title Ins. Co., 44 So. 3d 596 (Ct. Dist. Ct. App. 2010), rehearing denied, Jonas v. Fid. Natl, No. 4D09-1988, 2010 Fla. App. LEXIS 16832 (Fla. Dist. Ct. App. 2010); Jonas v. Jonas, 773 So. 2d 1163 (Fla. Dist. Ct. App. 2000).
The Florida litigation was finally dismissed in 2013 based upon priority and comity given that Jonas had moved to Montana in the meantime, where enforcement proceedings were also instituted; Jonass appeal of that decision was likewise affirmed. See Jonas v. Jonas, 155 So. 3d 1289 (Fla. Dist. Ct. App. 2015). ([H]aving been told by two states that he must pursue his claims in New Jersey, [Jonas] should do so.).
C. Tax Court
In 2007, Jonass litigation history was expanded to include a dispute with the Internal Revenue Service based on the IRSs claim of a deficiency in Jonass tax payments for 2002 and 2003. Jonas v. Commr of Internal Revenue, 97 T.C.M. (CCH) 1206 (2009); Bd. Ex. 25. The result of that dispute was a 2009 judgment by the United States Tax Court disapproving Jonass attempt in both years to deduct from his income $36,000 in spousal support payments he never actually made.3 Jonas v. Commr of Internal Revenue, 97 T.C.M. (CCH) 1206 (2009). On Jonass appeal, the United States Court of Appeals for the Ninth Circuit affirmed the Tax Court. Jonas v. Commr of Internal Revenue, 457 F. Appx 655 (9th Cir. 2011).
D. Montana
Jonas apparently moved to Montana at some point prior to 2009. See Jonas v. Jonas, No. DV 09-388, 2010 Mont. Dist. LEXIS 415 (Dist. Ct. Jan. 25, 2010); Bd. Ex. 18. In December of that year, Linda filed a notice of the New Jersey judgments in the Montana court, once again seeking to enforce the New Jersey courts still unpaid 2006 judgments. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, No. DV-09-388, 2011 Mont. Dist. LEXIS 104 (Dist. Ct. July 14, 2011); Jonas v. Jonas, No. DV 09-388, 2010 Mont. Dist. LEXIS 415 (Dist. Ct. Jan. 25, 2010). By that time, Jonas had established a business raising cattleBlacktail Mountain Ranch Co., LLC, (BMR)and Linda sought judicial dissolution of BMR and foreclosure on Jonass interest in BMR to satisfy the New Jersey judgments. See Jonas v. Jonas, No. DA 10-0137, 2010 Mont. LEXIS 397 (Mont. Nov. 9, 2010); Bd. Ex. 13. In 2010, the Montana court issued a writ of execution against Jonas for $1,091,391.21 for the 2006 New Jersey judgments, plus spousal support and interest since then. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, No. DA 10-0137, 2010 Mont. LEXIS 397 (Mont. Nov. 9, 2010). The court appointed a receiver, judicially dissolved BMR, and directed that proceeds from the sale of BMRs assets would be used to satisfy the 2006 New Jersey judgments, with any remainder given to Jonas. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, No. DA 10-0137, 2010 Mont. LEXIS 397 (Mont. Nov. 9, 2010).
Between 2009 and 2011, Jonas mounted a series of challenges to Montanas enforcement of the New Jersey judgments through various post-judgment motions and appeals. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, No. DV-09-388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012); Jonas v. Jonas, 365 Mont. 558 (Mont. 2012); Jonas v. Jonas, No. DV 09-388, 2011 Mont. Dist. LEXIS 104 (Dist. Ct. July 14, 2011); Jonas v. Jonas, No. DA 10-0137, 2010 Mont. LEXIS 397 (Mont. Nov. 9, 2010); Bd. Ex. 14, 19, 20. In each, he requested essentially the same relief on essentially the same groundsthe denial of his due process rights, misapplication of res judicata principles, and the inapplicability of full faith and credit to the New Jersey judgments. Jonas v. Jonas, No. DV-09-388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012); Jonas v. Jonas, 365 Mont. 558 (Mont. 2012); Jonas v. Jonas, No. DV-09-388, 2011 Mont. Dist. LEXIS 104 (Dist. Ct. July 14, 2011); Jonas v. Jonas, No. DA 10-0137, 2010 Mont. LEXIS 397 (Mont. Nov. 9, 2010). In each, Jonas was unsuccessful. Jonas v. Jonas, No. DV-09-388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012); Jonas v. Jonas, 365 Mont. 558 (Mont. 2012); Jonas v. Jonas, No. DV 09-388, 2011 Mont. Dist. LEXIS 104 (Dist. Ct. July 14, 2011); Jonas v. Jonas, No. DA 10-0137, 2010 Mont. LEXIS 397 (Mont. Nov. 9, 2010).
When, by 2012, Jonas had failed to satisfy any of the prior Montana orders requiring his fulfillment of the unsatisfied New Jersey orders, Linda instituted contempt proceedings in Montana. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, No. DV 09-388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012). Jonas countered by advancing, for the first time, the argument that because he was not the sole owner of BMR, the dissolution and foreclosure proceedings as to BMR were improper. Jonas v. Jonas, No. DV 09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, No. DV 09 388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012). In holding that Jonas had waived that argument by failing to raise it in the prior appeals, the Montana court noted that this was Jonass third motion to reconsider its enforcement of the New Jersey judgments, and that each motion was denied and those denials affirmed on appeal. Jonas v. Jonas, 308 P.3d 33 (Mont. 2013); Jonas v. Jonas, No. DV-09-388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012); Bd. Ex. 15. The court also noted that Jonas had already been cautioned against further protracted litigation, that he had failed to heed that warning, and that Jonas and his counsel have multiplied the proceedings unreasonably and vexatiously, for which the court awarded Linda another round of attorney fees and costs. Jonas v. Jonas, No. DV-09-388, 2012 Mont. Dist. LEXIS 58 (Dist. Ct. Aug. 27, 2012). In a further appeal, the Montana Supreme Court again affirmed the Montana trial court and awarded Linda additional attorney fees. Jonas v. Jonas, 308 P.3d 33 (Mont. 2013). Jonass petition for a rehearing was denied, as was his petition for a writ of certiorari filed with the United States Supreme Court. Jonas v. Jonas, No. DV 09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Jonas v. Jonas, 308 P.3d 33 (Mont. 2013), cert. denied, 134 S. Ct. 1036 (2014); Jonas v. Jonas, No. DA 12 0620 (Mont. Sept. 10, 2013); Bd. Ex. 16.
By decision dated July 3, 2014, the Montana trial court ruled on the sixteen post-judgment motions that had been filed in the meantime; the court denied each of Jonass requests for relief, but granted Lindas requests for attorney fees and costs in defending Jonass motions. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). The court also granted Lindas motion to declare Jonas a vexatious litigant, specifically finding that Jonas had willfully abused his litigation skills in his unrelenting advancement of harassing, frivolous, duplicative, single-minded, expensive, burdensome, voluminous, irrelevant, retaliatory, and impertinent arguments that represented yet another of Jonass attempts to defy New Jerseys judgments, and that Jonas had no objective good faith expectation of prevailing in any of those matters. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). In doing so, the court issued a thirty-page decision, to which it attached forty-five pages entitled Supplemental Findings Regarding Mr. Jonass History of Litigation. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). The court directed that Jonas could not submit any filings without the courts permission and the posting of a sufficient bond to cover litigation fees and costs. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). The Montana Supreme Court dismissed Jonass appeal of the judgment and assessed fees against Jonas in December of 2014. Jonas v. Jonas, No. DA 14-0485 (Mont. Dec. 9, 2014); Bd. Ex. 17.
E. Bankruptcy Court
On February 19, 2010, just one day after the Montana courts appointment of a receiver in connection with the sale of BMRs assets, Jonas instituted a Chapter 11 bankruptcy in Montana, which was later converted to a Chapter 7 bankruptcy based on Jonass failure to provide required information to the bankruptcy trustee. In re Jonas, No. 10-60248-7, 2010 Bankr. LEXIS 2722 (D. Mont. Aug. 12, 2010); see In re Jonas, No. 10-60248-11, 2012 Bankr. LEXIS 3247 (D. Mont. July 17, 2012); In re Jonas, No. 10-60248-7, 2011 Bankr. LEXIS 2544 (D. Mont. June 30, 2011); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Bd. Ex. 26. Linda filed a proof of her priority claim for the $1,091,391.21 judgment as a domestic support obligation. In re Jonas, No. 10-60248-7, 2010 Bankr. LEXIS 2722 (D. Mont. Aug. 12, 2010); see In re Jonas, No. 10-60248-11, 2012 Bankr. LEXIS 3247 (D. Mont. July 17, 2012); In re Jonas, No. 10-60248-11, 2011 Bankr. LEXIS 3798 (D. Mont. Sept. 29, 2011).
Jonas once again attempted to obfuscate those proceedings by filing an adversary proceeding against Linda within the bankruptcy matter, seekingin five countsto void Lindas judgment lien on the bankruptcy estate and disallow her claims entirely based on his assertions of fraud, and requesting damages from Linda for her filing of the proof of claim and for abuse of the legal process. In re Jonas, No. 10-60248-7, 2010 Bankr. LEXIS 2722 (D. Mont. Aug. 12, 2010).
In 2010, the United States Bankruptcy Court for the District of Montana dismissed Jonass adversary claims against Linda based on the Rooker Feldman4 doctrine, In re Jonas, No. 10-60248-7, 2010 Bankr. LEXIS 2722 (D. Mont. Aug. 12, 2010), and also held Jonas in contempt for failing to make timely disclosures, In re Jonas, No. 10-60248-7, 2010 Bankr. LEXIS 3215 (D. Mont. Sept. 16, 2010). Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014).
In 2011, the Bankruptcy Court agreed to allow Jonas to convert the case back to a Chapter 11 proceeding, but imposed certain conditions, specifically, if Jonas failed to file a timely plan and disclosure statement, the bankruptcy would be dismissed with prejudice, and Jonas and any entity in which Jonas had an ownership interest would be prohibited from seeking bankruptcy relief for at least two years. In re Jonas, No. 10-60248-11, 2012 Bankr. LEXIS 3247 (D. Mont. July 17, 2012); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). In 2012, the Bankruptcy Court dismissed the matter based on Jonass failure to file a timely plan and disclosure statement and prohibited Jonas or any Jonas entity from seeking bankruptcy for at least two years. In re Jonas, No. 10-60248-11, 2012 Bankr. LEXIS 3247 (D. Mont. July 17, 2012); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). In doing so, the Bankruptcy Court noted that Jonass strategy in the bankruptcy proceeding had been to delay the sale of the bankruptcy estates interest in BMR. In re Jonas, No. 10 60248 11, 2012 Bankr. LEXIS 3247 (D. Mont. July 17, 2012); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014).
On Jonass appeal, the United States District Court for the District of Montana affirmed the Bankruptcy Courts decision, including its prohibition on Jonas being able to seek bankruptcy relief for a period of two years. See Jonas v. Jonas, 599 Fed. Appx 803 (9th Cir. 2015); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). Jonass further appeal to the United States Court of Appeals for the Ninth Circuit was also unsuccessful. Jonas v. Jonas, 599 Fed Appx 803 (9th Cir. 2015); see Jonas v. Jonas, No. DV 09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014).
F. Federal Suits
In January of 2013, Jonas (and Jonas, purporting to represent BMR) filed a complaint in the United States District Court for the District of Montana against his former attorney there, his former attorneys law firm, and Hon. Charles B. McNeil, the Montana trial court judge who presided over Lindas action to domesticate the New Jersey judgments in Montana. See Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014); Jonas v. Waterman, No. CV 13 16 M DLC-JCL, 2013 U.S. Dist. LEXIS 82896 (D. Mont. June 12, 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Bd. Ex. 22. Jonas alleged claims for legal malpractice and violation of his constitutional rights pursuant to 42 U.S.C. 1983. See Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 82896 (D. Mont. June 12, 2013). The suit against Judge McNeil was dismissed based on his immunity from suit. See Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 82896 (D. Mont. June 12, 2013); Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 82881 (D. Mont. Mar. 25, 2013); Jonas v. Jonas, No. DV 09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). BMR was also dismissed from those proceedings based on Jonass refusal to obtain counsel for BMR, and his attempt to instead represent BMR on a pro se basis.5 See Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 82896 (D. Mont. June 12, 2013); Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 42541 (D. Mont. Mar. 25, 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). His remaining claims were decided in favor of the defendants in a summary judgment. See Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014); Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 169818 (D. Mont. Dec. 2, 2013); Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 170534 (D. Mont. Aug. 21, 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014).
Also in January of 2013, Jonas filed suit in the United States District Court for the District of Montana against a Montana newspaper, editor, and reporter for publishing what he alleged were three defamatory articles about him during his campaign for election as a justice of the peace. See Jonas v. Lake Cnty. Leader, 953 F. Supp. 2d 1117 (D. Mont. 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Bd. Ex. 23. Some of those claims were dismissed in June of 2013 for Jonass failure to allege statements that were capable of bearing a defamatory meaning, the remaining claims were decided against Jonas in April of 2014, and Jonas then attempted to appeal that decision. Jonas v. Lake Cnty. Leader, 953 F. Supp. 2d 1117 (D. Mont. 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). That appeal appears to be ongoing.
In May of 2013, Jonas filed a suit in the United States District Court for the District of New Jersey against Linda, Gold, and two law firms for their acts in assisting Linda in obtaining the 2006 judgments in New Jersey and enforcing them in Montana. Jonas v. Gold, 2014 U.S. Dist. LEXIS 65486 (D. N.J. May 13, 2014); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). He alleged seven causes of action, including fraud, embezzlement, malpractice, and violation of his constitutional rights pursuant to 42 U.S.C. § 1983; in that suit, Jonas also attempted to have the New Jersey federal court restrain the Montana courts from allowing the sale of BMRs property. Jonas v. Gold, No. 13-2949, 2014 U.S. Dist. LEXIS 138472 (D. N.J. Sept. 30, 2014); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). Those claims were dismissed or decided against Jonas in September of 2014 pursuant to the Rooker Feldman doctrine, and on grounds that Jonass complaint failed to state a claim on which relief could be granted and his state law and constitutional claims were time-barred. Jonas v. Gold, 2014 WL 4854484 (D. N.J. Sept. 30, 2014); Jonas v. Gold, No. 13-2949 (D. N.J. Sept. 39, 2014); see Jonas v. Gold, 2014 U.S. Dist. LEXIS 65486 (D. N.J. May 13, 2014); Bd. Ex. 28. Jonas then continued to challenge the matter in a pro se appealin which he purported to represent both himself and BMRbefore the United States Court of Appeals for the Third Circuit. Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014); Bd. Ex. 27.
Also in May of 2013, Jonas filed suit in the United States District Court for the District of Montana against Linda, Lindas attorney in Montana, that attorneys law firm, the receiver appointed by the Montana state court to oversee the liquidation of BMR, and the agents retained by the receiver to assist with the liquidation of BMRs assets; he alleged causes of action for malpractice, fraud, conversion, and violation of section 1983. Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2013 U.S. Dist. LEXIS 186016 (D. Mont. Aug. 21, 2013); Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). The claims against the receiver and the receivers agents were dismissed based on their judicial immunity as appointed judicial officers. Jonas v. Jonas, No. CV 13-90-M-DWM, 2014 U.S. Dist. LEXIS 32923 (D. Mont. Mar. 12, 2014); see Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2013 U.S. Dist. LEXIS 186016 (D. Mont. Aug. 21, 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). The court dismissed Jonass remaining claims based on the Rooker-Feldman doctrine and principles of res judicata. Jonas v. Jonas, No. CV 13-90-M-DWM, 2014 U.S. Dist. LEXIS 32923 (D. Mont. Mar. 12, 2014); see Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2013 U.S. Dist. LEXIS 186016 (D. Mont. Aug. 21, 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014).
Acting sua sponte, the court further ordered Jonas and BMR to show cause why they should not be sanctioned pursuant to Fed. R. Civ. P. 11 for making frivolous arguments. Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014); Jonas v. Jonas, No. CV 13-90-M-DWM, 2014 U.S. Dist. LEXIS 32923 (D. Mont. Mar. 12, 2014); Bd. Ex. 24. Jonas responded by challenging the specificity of the courts show cause order. Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). The court therefore determined that Jonas had not shown any good cause for his actions, and issued a sanction in the form of an admonishment. Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014). The court concluded, Referral to disciplinary authorities is an appropriate sanction for violation of Rule 11 identified sua sponte, and therefore ordered that a copy of its admonishment would be forwarded to the state bars of Maine, New Jersey, and Pennsylvania.6 Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014).
G. Disciplinary Proceedings
Pursuant to M. Bar R. 7.3(j)(5), it is Jonass burden, as the petitioning party, to establish, by clear and convincing evidence, the necessary requirements for reinstatement:
[T]he petitioner . . . shall have the burden of presenting clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State. The petitioner shall also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.
Rule 7.3(j)(5) then lists a series of [f]actors to be considered as to the petitioners meeting that burden, namely, that
Although these six factors are indications of whether reinstatement would be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest, M. Bar R. 7.3(j)(5), they are by no means an exhaustive list of considerations relevant to that larger inquiry. I begin by noting that the record recited above is replete with evidence establishing that, by clear and convincing evidence, Jonass reinstatement to the bar of Maine would be detrimental to the integrity and standing of the Bar, the administration of justice, and to the public interest. For over twenty-five years, Jonas has taken exhaustive steps to avoid fulfilling his divorce obligations, has attempted to undermine the judicial system of every jurisdiction in which he litigated, and has refused accountability for the course of the very disputes he continues to press as recently as a few weeks ago. I conclude that Jonas has failed to meet his burden as to factors C and E in particularI am convinced that that he does not appreciate the wrongfulness and seriousness of his misconduct and I am convinced that he does not have the requisite honesty and integrity to practice law.9
When he testified, Jonas acknowledged that he had violated some court orders, and admitted that he had been wrong in doing so. He contended, however, that his actions in taking the children to the Cayman Islands was not premeditated, and that his decision to attempt to liquidate his holdings and flee the jurisdiction of the New Jersey courts was caused by his own temporary depression and anxiety. These, in turn, he explained, had been caused by the unrelenting litigational assaults by Linda; a series of tragedies suffered by clients; and his belief that Linda, her attorney, and Judge Page were involved in a conspiracy against him. Jonass purported acceptance of responsibility and explanations would have been more credible if he had not continued to make the same sorts of choices and take the same sorts of actions during the unrelenting, unremitting barrage of litigation he mounted whenever Linda attempted to enforce the valid court orders. In short, Jonas has not establishedeven by a preponderance of evidencethat he recognizes the wrongfulness of the actions that resulted in his New Jersey suspension.
The historical facts reproduced here represent just a small and simplified sampling of the most significant moments in Jonass litigation history; that history displays a complexity that anyone would be loathe to describe in full. In total, dozens of jurists in the trial, intermediate appellate, and appellate courts of five states and eight federal jurisdictions for more than two decades have considered and rejected Jonass arguments regarding his divorce. In these proceedings, several themes repeat themselves over and over and over again:
That Jonas has, from time to time, found lawyers to make his arguments for him does not insulate his actions. Whether with or without counsel, he has demonstrated a level of contempt for courts and their authority that is breathtaking. In sum, Jonass litigation history, though all relating to his personal affairs, reflects a pattern of conduct that could not possibly meet any definition of integrity. Indeed, a small sampling of the terms that have been used to describe Jonas and his filings and actions in court include the following: vexatious, defiant, subversive, disruptive, guerilla warfare, wasteful, single minded, adamant, obstinate, dogged, retaliatory, duplicative, abusive, especially egregious, unnecessary, unrelenting, specious, deliberate, frivolous, bad faith, improper, ill-advised, retributive, ongoing, expensive, impertinent, delaying, invalid, needless, unsupported, and contemptuous. Jonas has mischaracterized, misrepresented, refused to appear, failed to obey, feigned ignorance, manipulated, and harassed his way through the last twenty-five years, and in every such incident, he has ignored his own conduct, failed to acknowledge any wrongdoing, and expressed no remorse or contrition. In a representative discussion of Jonass litigation efforts, the Montana Supreme Court noted,
Jonas has engaged in a course of drawn-out, vexatious litigation in New Jersey, Florida, and Montana. This, his third appeal in Montana, is just the latest round in a divorce battle stretching back over 20 years. . . . The District Court previously warned [Jonas] that further delay or multiplication of this litigation without good cause would result in the imposition of sanctions. [Jonass] latest, third, appeal appears to have been largely pursued to further delay Lindas efforts to enforce the New Jersey judgment. We accordingly conclude that [Jonass] appeal is vexatious and was filed for the purposes of delay.
Jonas v. Jonas, 308 P.3d 33, 37 (Mont. 2013), cert. denied, 134 S. Ct. 1036 (2014).
Jonas has argued that his personal lifeand in particular, his divorce proceedingsshould not be dispositive as to his ethical obligations as an attorney, and points out that he has never been the subject of any disciplinary action based on his representation of any party other than himself and BMR. That notion is contradicted by legal ethics decisions throughout the United States in which attorneys have been disciplined, refused admission to the bar, or denied reinstatement to the bar based only on their own personal misconduct.10 See, e.g., Fla. Bd. of Bar Examrs re M.A.R., 755 So. 2d 89, 91-93 (Fla. 2000) (denying an attorney admission to the bar based on that attorneys failure to pay child support, history of writing worthless checks, and financial irresponsibility); Grigsby v. Ky. Bar Assn, 181 S.W.3d 40, 43 (Ky. 2006) (suspending at attorney for committing criminal drug offenses); In re Application for Discipline of Peters, 428 N.W.2d 375, 376-82 (Minn. 1988) (sanctioning at attorney by issuing a public reprimand for sexually harassing his employees); In re Duncan, 844 S.W.2d 443, 444-45 (Mo. 1992) (suspending at attorney for his willful failure to pay federal taxes); Disciplinary Counsel v. Character, 950 N.E.2d 177, 191-92 (Ohio 2011) (holding that an attorneys actions in his personal life are within the disciplinary boards scrutiny, as when, for example, a lawyer . . . commits fraud in the conduct of a business [he] is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Indeed, [a]ny act by an attorney that brings the profession or the authority of the courts and administration of the law into disrespect or disregard, such as dishonesty, personal misconduct, questionable moral character, or unprofessional conduct is potential grounds for [exclusion from the bar]. Grigsby, 181 S.W.3d at 42. [T]he public is entitled to rely on an attorneys admission to the practice of law as a certification of the attorneys honesty, high ethical standards, and good moral character. Id. at 42-43. Thus, it is highly relevant to a reinstatement petition whether Jonas is a vexatious litigant, which he is; whether Jonas fully acknowledges his role in his past misdeeds, which he does not; whether Jonas continues to assert the same arguments that have led to his professional downfall, which he does; whether Jonas understands the toll his actions have taken on countless others, including the many courts he has run in circles, which he does not; and whether Jonas is likely to repeat the same conduct in the future, which he is.
Even while it is clear that Jonas is to blame for the course of his legal woes, he has instead elected to view his years of litigation as an indication of the problems with the justice system rather than himself. When an attorney is admitted to the Maine bar, he swears that he will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same and that he will delay no man for lucre or malice. 4 M.R.S. § 806 (2014). Jonas has demonstrated just the opposite. When a person has demonstrated as little respect for the justice system as Jonas has over the last twenty-five years, I cannot conclude that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. M. Bar R. 7.3(j)(5).
Edwin Jonass petition for reinstatement to the Maine bar is hereby DENIED.
Dated: June 22, 2015
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
1 There are far too many Jonas litigations to allow for short citation forms. Thus, prior decisions from all jurisdictions are cited in full with each reference.
2 By then, one of the children was no longer a minor. In re Jonas, No. ORB 05-170 (N.J. Disciplinary Review Bd. Sept. 2, 2005).
3 Since 1995, Jonas has never voluntarily made a spousal support payment.
4"Under the Rooker-Feldman doctrine, a district court is precluded from entertaining an action, that is, the federal court Jacks subject matter jurisdiction, if the relief requested effectively would reverse a state court decision or void its ruling." Jonas v. Gold, 2014 WL 4854484 (D. N.J. Sept. 30, 2014); see Jonas v. Gold, 2014 U.S. Dist. LEXIS 65486 (D. N.J. May 13, 2014).
5 The U.S. District Court concluded that Jonas was precluded from representing BMR, an LLC, on a pro se basis. See Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 82896 (D. Mont. June 12, 2013); Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 42541 (D. Mont. Mar. 25, 2013); Jonas v. Jonas, No. DV-09-388 (Mont. 20th Jud. Dist. Ct. July 3, 2014). That Court also concluded that Jonas could not represent BMR as an attorney because he was not admitted to the bar of that court and did not seek admission on a pro hac vice basis. Jonas v. Waterman, No. CV 13-16-M-DLC-JCL, 2013 U.S. Dist. LEXIS 82896 (D. Mont. June 12, 2013).
6 By that time, Jonas's reinstatement proceedings before the Maine Board of Overseers of the Bar were pending. Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014). Based on the Grievance Commission's recommendation that Jonas be reinstated to the Maine bar, and in response to the Commission's statement that "[a]ccording to [Jonas's] testimony, most of the difficulties and wasted efforts in the Montana litigation were the fault of his local attorney," see supra at Part l(G)(4), the U.S. District Court advised that Jonas's "testimony [was] an incomplete report of the litigation before this Court, as it either fail[ed] to mention or grossly mischaracterize[d] this action and the Court's decision." Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014). Commenting on the Commission's finding that "Ed Jonas' litigation in every jurisdiction has had at least a plausible explanation and a legitimate objective," the U.S. District Court stated, "Jonas'[s) pursuit of this action flatly contradicts that finding." Jonas v. Jonas, No. CV 13-90-M-DWM-JCL, 2014 U.S. Dist. LEXIS 109268 (D. Mont. Aug. 7, 2014).
7 Maine did not initiate any procedures to impose reciprocal discipline as a result of the New Jersey, Pennsylvania, or Florida suspensions, as would have been permitted by M. Bar R. 7.3(h).
8"An attorney who has been suspended for non-disciplinary reasons under Rules 6 or I 0 of the Maine Bar Rules may petition to the Court for reinstatement" and the Court "may enter any appropriate order or orders in connection with such application." M. Bar R. 7.3(j)(4).
9 Jonas also has failed to prove that he has complied with all prior disciplinary orders pursuant to M. Bar R. 7.3(j)(5)(a), namely, by reimbursing the New Jersey disciplinary oversight committee for its administrative and actual expenses incurred in prosecuting the New Jersey bar discipline matter against him. See In re Jonas, No. DRB 05-170 (N.J. Disciplinary Review Bd. Sept. 2, 2005), aff'd, 889 A.2d 1055 (N.J. 2006).
10 It has also been many years since Jonas has represented any clients.
Board of Overseers of the Bar v. E. Anne Carton, Esq.
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Docket No.: GCF#14-316
Issued by: Grievance Commission
Date: July 1, 2015
Respondent: E. Anne Carton, Esq.
Bar Number: 002672
Order: Dismissal with Warning
Disposition/Conduct: Competence, Diligence, Communication, Conflicts of Interest ? Current Clients, Safekeeping Property
M. Bar R. 7.1(e)(2)(3)
On June 15, 2015, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 7.1(e)(2), concerning the Respondent, E. Anne Carton, Esq., of Brunswick, Maine. Panel members included Thomas H. Kelley, Esq., Chair; Vendean Vafiades, Esq.; and Kenneth Roberts, Public Member. The Board of Overseers of the Bar was represented by Deputy Bar Counsel Aria Eee. Respondent was present and was represented by Peter J. DeTroy, III, Esq.
This proceeding was initiated by the filing of a Disciplinary Petition by the Board of Overseers of the Bar, dated February 19, 2015. The Petitioner filed a response through counsel dated March 24, 2015. Those documents are part of the Board?s official record.
The Board submitted Exhibits 1-37 in advance of the hearing, and those exhibits were accepted by the panel at the hearing without objection. The Board also submitted Exhibit 38 at the hearing, which was admitted over the objection of the Respondent for whatever evidentiary value it may have. The Respondent submitted Exhibits 1-54 in advance of the hearing, including supplements A to Exhibits 1, 2, 3, 13, 15, 26, 27, 38, and supplements A and B to Ex. 49, and those exhibits were admitted without objection. The Respondent also offered supplements A and B to Ex. 11 at the hearing, and those exhibits were admitted without objection.
The events that lead to this proceeding began in the summer of 2011 when the Complainant, Darlene Grover, sought the assistance of Attorney Carton in managing the financial affairs of her mother, Lillian Robinson, after Ms. Robinson suffered a traumatic brain injury. Some background history is necessary, however, to the understanding of this dispute.
In 2005 Lillian Robinson retained the services of Attorney Hylie West of Damariscotta, Maine to update her estate plan. In October 2005, Ms. Robinson executed several documents that had been prepared for her by Attorney West, including a Power of Attorney from Lillian Robinson to Attorney Anne Carton, a reserve Power of Attorney to Attorney Stoddard Smith, a Promissory Note and Personal Guaranty from Darlene Grover to Lillian Robinson, a Living Will, an Authorization for Use and Disclosure of Protected Health Information, Nomination of Guardian and Conservator, Last Will and Testament, Third Amendment to Revocable Trust Agreement, a Living Trust, and a Letter of Instruction regarding the use of the Power of Attorney. In addition to granting Attorney Carton a Power of Attorney, Ms. Robinson nominated Ms. Carton as conservator in the event it was necessary to ask the Probate Court to appoint a conservator. The Third Amendment to the Revocable Trust Agreement also designated Anne Carton to serve as trustee of the Lillian Robinson Living Trust in the event of Ms. Robinson?s disability or death. Attorney West noted that the Power of Attorney was an essential element of the estate plan and often enabled families to avoid the expense and complications of a guardianship or conservatorship proceeding. (Testimony of Hylie West; Board. Ex. 3, 3A and B; 4, 4A and 4B; Respondent?s Ex.33-36).
Both Darlene Grover and Lillian Robinson had previously employed the legal services of Anne Carton (for a divorce and a real estate transaction respectively) and had been very satisfied with her services, and that is apparently what prompted Ms. Robinson to grant a Power of Attorney to Attorney Carton. Attorney Carton acknowledged at the hearing that Lillian Robinson had stopped by the office in 2005 and asked her if she would be willing to serve as Lillian?s Power of Attorney (POA) and that she had agreed. Hylie West sent the original POA and copies of the various other estate documents to Attorney Carton in late October 2005, and she sent acknowledgment of receipt of those documents to Attorney West in early March 2006. (B. Ex.4A and 4B). Lillian Robinson?s Letter of Instruction directed Attorney Carton and her backup Stoddard Smith to use the POA in the event of her disability but only after consulting with her physicians. (B. Ex. 3 and 3A).1
In late June 2011, Lillian Robinson suffered a traumatic brain injury, and within a few days of that event Darlene Grover sought Attorney Carton?s legal assistance, particularly in dealing with her mother?s finances. The exact date of the initial contact is not clear but must have occurred before July 7, 2011, when guardian/conservator documents were sent by Attorney Carton to Stan Grover. (B Ex.5). At the time of initial contact, Attorney Carton testified that she did not remember that Lillian Robinson had granted her a Power of Attorney to be used in the event of Ms. Robinson?s incapacity. Thus, she advised Ms. Grover to seek an emergency guardianship and conservatorship of her mother, and Ms. Grover authorized Attorney Carton to represent her for that purpose. (Testimony of Darlene Grover and testimony of Anne Carton).
Attorney Carton drafted the necessary documents, including notices to Darlene Grover?s brothers, Stanley Grover and Terry Grover. A letter of July 7, 2011, to Stanley Grover stated that the probate documents would be filed the following week, but that the filing was delayed at the request of Darlene Grover, who was apparently having reservations about proceeding. (B. Ex 6). By the end of July 2011, Ms. Grover authorized Attorney Carton to proceed, and on August 1, 2011, Ms. Carton sent the Joined Petitions for Appointment of Guardian and Conservator along with related documents to the Cumberland County Probate Court. Those documents included a certification by a physician dated July 21, 2011, that Lillian Robinson was incapacitated. On August 16, 2011 Probate Judge Mazziotti issued an ex parte order appointing Darlene Grover Temporary Guardian and Temporary Conservator of Lillian Robinson for a period of three months. (B. Ex. 5-10; R. Ex. 1-8).
At the time of her accident, Lillian Robinson was 85 years old and Darlene Grover lived with her mother and provided her with care and assistance. Although Darlene and her brother Stanley had very poor relations with one another, Stanley expressed satisfaction with Darlene?s care of her mother and initially expressed the view that she would make an appropriate guardian for their mother. On the other hand, Stanley Grover repeatedly expressed doubts about Darlene?s ability to manage Lillian?s financial affairs. Further, he later expressed opposition to the appointment of Darlene as guardian, through his attorney, because he thought Darlene might restrict his contact with his mother. (R. Ex. 2, 9, and 16). Although there is no direct statement from Terry Grover in the record, a mediation report from the fall of 2011 indicates that Terry was satisfied with Darlene?s care of their mother but wanted to ensure that he had access to and information about the mother. (R. Ex. 17).
Although Darlene Grover had attended at least one of the 2005 meetings with Attorney Hylie West when he was drafting estate papers for Lillian Robinson, when she first contacted Anne Carton in late June or early July 2011, she did not remember that her mother had given Anne Carton a Power of Attorney. Ms. Grover insisted, however, that she recalled that fact within a short time of the initial contact and had asked Anne Carton about the POA by early to mid-July 2011, i.e. before the probate action was filed. Ms. Grover testified further that Attorney Carton at first stated that she did not have a POA and that it took some persuasion over a few days before Attorney Carton agreed to search her records. Attorney Carton, on the other hand, testified that Darlene Grover did not raise the issue of the POA with her until mid-August 2011 and that she did not realize until August 17 or 18, after her assistant had searched files in storage, that she had a Power of Attorney for Lillian Robinson. (Testimony of Darlene Grover and testimony of Anne Carton).
The Panel accepts as credible Darlene Grover?s testimony that Anne Carton was dubious about having a POA when the issue was first raised and that Ms. Grover had to persuade her to search for that document. The panel does not find Ms. Grover?s recollection of the timing of this discussion to be reliable, however. Thus the panel concludes that the discussion(s) about the POA most likely occurred in mid-August 2011.
When asked why she had not realized that she had a POA for Lillian Robinson when Ms. Grover first contacted her, Attorney Carton stated that she kept a record of POAs in her file but because another attorney had prepared the estate documents, Lillian Robinson was not in her POA client database. Attorney Carton also stated that she relied completely on her legal assistant to let her know whether a prospective new client or new client matter raised a conflict issue. Ms. Carton also stated that she had served as a trustee for a few individuals and she did not know how many POAs were in her files. (Testimony of Anne Carton).
Attorney Carton testified that upon learning that she had a Durable Power of Attorney for Lillian Robinson, she had a discussion with Darlene Grover about the POA and the other documents and in particular about the authority of a conservator compared to that of an agent under a POA. That meeting apparently occurred on August 23, 2011. Attorney Carton did not draft a file memorandum about that discussion. Further, Attorney Carton took no immediate steps to advise the Probate Court or Darlene Grover?s brothers in writing of her discovery of the POA or to raise a concern about a possible conflict of interest. (Testimony of Anne Carton; B. Ex. 2).
The conflict of interest inquiry regarding Attorney Carton?s role as attorney for Darlene Grover and her authority as agent for Lillian Robinson apparently came up at a conference in the Probate Court on September 21, 2011. It is not clear who raised the issue or how it was presented because there was no written record of the proceeding and apparently no formal order of the Court. Darlene Grover testified that her brother Terry raised the issue. Attorney Carton has never specifically acknowledged any conflict and cited as her reason for withdrawing as Darlene Grover?s attorney the fact that Darlene and her brothers were not in agreement about who should manage their mother?s finances.2 In any event, Attorney Carton stated that she and Judge Mazziotti agreed that ?I should cease representing Darlene, but continue to be involved on behalf of her mother.? (B. Ex. 2 at 2; Response of Anne Carton to Disciplinary Petition; testimony of Darlene Grover; testimony of Anne Carton).
Shortly after the September 21st conference, Attorney Carton referred Darlene Grover to Attorney Jennifer Davis of Topsham, and Jennifer Davis advised Anne Carton by letter of October 2, 2011, that she was representing Ms. Grover and that she understood that her fees would be paid by Ms. Carton in her capacity as agent by POA for Lillian Robinson. (B. Ex. 11).
During the fall of 2011, there was considerable conflict between Darlene Grover and her brothers. The primary causes of the discord involved Terry and Stanley Grover?s desire to have assurances of access to their mother if Darlene were to continue as guardian and the brothers? concern that Darlene was not the right person to serve as conservator. Efforts to mediate these differences continued through the fall of 2011 and into the winter of 2012, although it appears that no final formal agreement was reached by the siblings. (R. Ex. 11-26A).
On November 16, 2011, the Probate Court extended the appointment of Darlene Grover as temporary guardian and conservator without objection until December 21, 2011, at which time a conference with the Court was scheduled. Attorney Carton moved to withdraw as counsel for Darlene Grover on November 21, 2011. On December 21, 2011, Attorney Davis entered her appearance for Darlene Grover, and Judge Mazziotti granted Anne Carton?s Motion to Withdraw. After the conference on December 21st the Judge issued a scheduling order and an interim order that: 1) continued the appointment of Darlene Grover as temporary guardian for Lillian Robinson with provisions for Attorney Davis to facilitate family members? contact with Ms. Robinson; 2) discontinued Darlene Grover?s appointment as temporary conservator; 3) directed Attorney Carton to ?continue to manage the finances of Lillian under the authority of a General Durable Power of Attorney given by Lillian to Ms. Carton for that purpose?; and 4) directed Attorney Carton to ?provide all parties with any financial information reasonably requested.? (R. Ex. 22; also 18 and 21). In September 2012, the Probate Court found that Lillian Robinson was incapacitated and appointed Darlene Grover as permanent guardian. (R. Ex. 29). In December 2012, Judge Mazziotti dismissed the petition for a conservator, finding that it was unnecessary because Lillian Robinson?s finances were adequately protected by Anne Carton in her capacity as attorney in fact and trustee. (R. Ex. 39).
Attorney Carton served as agent or attorney in fact for Lillian Robinson pursuant to the POA from the fall of 2011 until September 2013, and during that time she also served as Trustee of the Lillian Robinson Living Trust. During that two-year period there was considerable friction between Darlene Grover and Anne Carton over the management of Lillian Robinson?s finances. In September 2013, Anne Carton resigned as agent and trustee for Lillian Robinson and turned those duties over to Attorney Stoddard Smith, who had been designated by Lillian Robinson as the person to take over those roles in the event Ms. Carton was unable or unwilling to continue. (See generally R. 27-49B).
On July 16, 2014, the Board of Overseers of the Bar received a complaint from Darlene Grover, dated July 12, 2014, about the conduct of Attorney Anne Carton in the course of representing Ms. Grover and assisting Lillian Robinson. Ms. Grover faulted Attorney Carton for: 1) not promptly recognizing that she had a Power of Attorney for Ms. Robinson and thus causing unnecessary expenses for a conservatorship and contributing to friction among the Grover siblings; 2) failing to recognize she had a conflict of interest; and 3) failing to manage Lillian Robinson?s financial affairs properly while serving as Trustee and as attorney in fact for Lillian. Attorney Carton responded with a detailed explanation and defense of her conduct. (B. Ex. 1 and 2).
After investigating Ms. Grover?s complaint, Bar Counsel determined there were sufficient grounds to believe that Attorney Carton had violated provisions of the Maine Rules of Professional Conduct and thus filed a Disciplinary Petition on February 19, 2015. The Petition alleged the following violations: Rules 1.3 [diligence] and 1.15 [safekeeping of client?s property] for failing to recognize promptly that Attorney Carton had a Power of Attorney for Lillian Robinson; Rules 1.1 [competence], 1.7 [conflicts of interest ? current clients], and 1.9 [duties to former clients] for filing an apparently unnecessary conservatorship, taking action adverse to Lillian Robinson without disclosing the potential conflict or obtaining consent; Rules 1.1 [competence], 1.5(a) [excessive fees], and 8.4(d) [conduct prejudicial to the administration of justice] by causing unnecessary legal expenses and contributing to discord among Ms. Robinson?s adult children; Rule 1.7 [conflict of interest] and 1.16 [termination of representation] by failing to withdraw promptly as attorney for Darlene Grover after realizing she had a POA; Rules 1.3 [diligence], 1.4 [communication], and 8.4(d) [conduct prejudicial to the administration of justice] for not responding promptly to requests for payments of support for Lillian Robinson in her capacity as attorney in fact and trustee; and Rules 1.5(a) [fees]; 1.7(a)(2) [personal conflict], 1.15 [safekeeping property], and 8.4(a) and (d) [misconduct and conduct prejudicial to the administration of justice].
Attorney Carton, through counsel, offered several key points in response to the Petition and in defense of her conduct, including: she had not discovered the POA for Lillian Robinson until after she had filed the petition to have Darlene Grover appointed guardian and conservator and after the Probate Court had issued a temporary appointment, and thus the Board was incorrect in alleging she knew of the POA when she filed the petition; she had no fiduciary duty to Lillian Robinson until after she had knowledge of her disability; she had no conflict of interest because she was not aware there was any friction among family members at the time she filed the guardian and conservator petition; the existence of the POA did not render the probate petition unnecessary; conversations with Ms. Robinson?s health care providers and Darlene Grover lead her to believe that Lillian wanted her daughter to be appointed guardian; the friction among family members pre-dated her representation of Darlene Grover; and she handled Ms. Robinson?s finances appropriately and had legitimate concerns about Darlene Grover?s use of her mother?s funds.
At the conclusion of the hearing in this matter Deputy Bar Counsel Eee stated that the Board did not intend to press its claims pertaining to Attorney Carton?s handling of her financial management duties as trustee and attorney in fact for Lillian Robinson and thus was withdrawing the claims of violations of the Rules of Professional Conduct as they pertained to those financial management duties. The Panel concurs with this decision. While there was friction and disagreement between Darlene Grover and Anne Carton about the appropriate handling of Lillian Robinson?s funds, there was no evidence of misconduct on Attorney Carton?s part. Although Ms. Grover provided numerous bank statements, Ms. Carton repeatedly requested that Darlene Grover prepare a budget setting forth regular expenses, which appears to have been a very prudent request, and Ms. Grover?s failure to do so contributed substantially to the tension between the two.
The Panel has two areas of concern about Attorney Carton?s conduct that raise questions under the Rules of Professional Conduct. One is her failure to determine that she held a Power of Attorney for Lillian Robinson when Darlene Grover contacted her in late June or early July of 2011 and sought assistance in taking care of Ms. Robinson?s finances. The other is whether Attorney Carton, upon realizing that she did hold a POA for Ms. Robinson, took sufficiently prompt steps to identify the conflict issues, to notify the appropriate parties of those issues, and to withdraw promptly from representation of Ms. Grover.
Failure to Identify and Exercise Her Fiduciary Obligation to Lillian Robinson
Lillian Robinson had a Durable Power of Attorney and other estate documents prepared by Hylie West in anticipation of the type of situation that arose in late June 2011, when she became incapacitated and unable to manage her own financial affairs. If Attorney Carton had determined that she held a POA for Ms. Robinson when Darlene Grover contacted her after her mother?s accident, she could have used her authority under the POA to pay bills and manage bank accounts and otherwise deal with the financial issues that prompted Darlene to seek her assistance. Also, she would have had a copy of Lillian Robinson?s nomination of Darlene Grover as her guardian and herself as conservator as necessitated by the circumstances (R. Ex.33). There would have been no immediate need to rush into Probate Court with a guardian and conservator petition. As Hylie West testified, an essential purpose of the POA and the other estate documents is to avoid the complications and expense of a probate proceeding when the client?s intentions are clearly stated.
The Panel disagrees with Attorney Carton?s assertion that a petition for appointment of a guardian and conservator would have been necessary in any event. Darlene Grover was living with Lillian Robinson and providing her care and assistance, and Darlene?s brothers agreed that was an appropriate placement for their mother. The POA gave Attorney Carton the authority not only to manage Ms. Robinson?s financial affairs but also to arrange for medical care. The POA gave Ms. Carton broad authority to act on Lillian Robinson?s behalf, making it unlikely that a conservator was necessary. Certainly that was the conclusion of Probate Judge Mazziotti, who discontinued the temporary conservator appointment in December 2011, and directed Ms. Carton to use her POA to manage Ms. Robinson?s financial affairs. And in December 2012, the Judge dismissed the petition for a conservator as unnecessary. The Panel also notes that if Attorney Carton had the POA and accompanying estate documents available to her when Ms. Grover first contacted her in 2011, she would have discovered that Lillian Robinson wanted her daughter to serve as guardian if necessary but had nominated Attorney Carton, not Ms. Grover, to be conservator if such an appointment became necessary.
Even if the Panel assumes that a guardianship was necessary in the summer of 2011, it is likely the probate process would have been smoother and less contentious if a petition for appointment of Darlene Grover as conservator had not been joined with the guardianship petition. Darlene?s brothers were particularly concerned about her ability to manage their mother?s finances. Although friction also developed between Darlene and the brothers over their access to their mother, that topic might have been less contentious if it had not been intertwined with financial management considerations.
Attorney Carton notes that, after her injury, Lillian Robinson expressed to Attorney Carton and others, including health care providers, that she wanted her daughter to manage her care and her financial affairs, and Attorney Carton cites that in support of her decision to seek appointment of Ms. Grover as guardian and conservator. The Panel notes, however, that Ms. Robinson?s medical providers had determined that she was incapacitated at the time, and thus it is difficult to evaluate such statements. By contrast, Ms. Robinson had a comprehensive estate plan prepared for her in 2005 at a time when she was competent, and those documents are the most appropriate source of guidance as to her wishes.
Unfortunately Lillian Robinson?s carefully developed estate plan was frustrated by Attorney Carton?s failure to identify that she held a POA for Ms. Robinson, and the Panel concludes that this failure in all likelihood caused unnecessary legal expenses for Ms. Robinson?s estate and aggravated pre-existing tensions among family members. Even Attorney Carton testified that the legal and financial uncertainties in mid-July, 2011, were ?very stressful? for the family. Her summary explanation of her position is that she safeguarded the files by keeping them in storage and she was not under any obligation to act on Lillian Robinson?s behalf until asked to use the POA. The Panel concludes that it is impossible to safeguard documents, even if stored, if you do not have a system in place to identify that those documents even exist and the lack of knowledge of their existence, especially when you have acknowledged in writing that they have been entrusted to you, is not a defense for failure of your obligation to protect the interests of your client.
At least three Rules of Professional Conduct are pertinent. Rule 1.1 requires an attorney to act competently on behalf of clients, and competent representation encompasses having office systems and practices that will flag relevant documents in a file or representation in prior matters that may indicate a potential conflict at the outset of a request for legal assistance. This includes providing adequate supervision to a legal assistant who is assisting an attorney in identifying conflicts.
Rule 1.7, governing conflicts with current clients, also applies. Although Anne Carton had not been Ms. Robinson?s attorney for estate planning purposes, Lillian Robinson had designated Attorney Carton as her fiduciary for estate management purposes after inquiring in person if she would do so. While it is not necessary for an attorney in fact to be an attorney at law, it is likely that Ms. Robinson selected Attorney Carton at least in part for her presumed legal expertise. Attorneys are often called upon to act as fiduciaries, e.g. as trustees, agents, and directors of corporations, and it is imperative that their conflict management systems identify client and matter conflicts with their fiduciary responsibilities. See Rule 1.7(a) (2), which cites an attorney?s duty to ?a third person,? typically a fiduciary obligation. Finally, Rule 1.15 requires attorneys to safeguard the property of clients or third persons that is placed in their possession. While this rule most often involves financial matters, it also applies to documents placed with an attorney for safekeeping.
The Panel concludes, therefore, that Attorney Carton failed to meet her obligations under Maine Rules of Professional Conduct 1.1, 1.7(a) (2), and 1.15 by failing to have sufficient office systems in place to identify her fiduciary obligation to Lillian Robinson when she was contacted by Darlene Grover in late June/early July 2011.
Handling of the Conflict of Interest Once Discovered
If Attorney Carton had determined she held a POA for Lillian Robinson when she was first contacted by Darlene Grover, presumably she would have also realized that her fiduciary obligation to Ms. Robinson would present a conflict of interest if she were to represent Ms. Grover in a petition for appointment of a guardian and conservator. Further, Attorney Carton presumably would have informed Darlene Grover that she (Carton) could manage Lillian Robinson?s finances with the POA and that Darlene Grover should engage separate counsel if she wanted to pursue a probate action. Darlene Grover acknowledges that neither she nor Attorney Carton initially knew that Attorney Carton held a POA. Ms. Grover testified that she told Attorney Carton about the POA in July not long after they first spoke, i.e. before the probate petition had been filed. As the Panel noted above, however, we conclude that Attorney Carton?s recollection of when she first realized she had a POA, i.e. around August 17 or 18, 2011, is more reliable than Ms. Grover?s recollection.
The Panel believes that Attorney Carton had an obligation, once she learned of the POA, to take prompt steps to notify the Court and Darlene Grover of the conflict and to withdraw from representation of Darlene Grover. The obligation to act promptly can be found in Rule 1.3, which requires a lawyer to act ?with reasonable diligence and promptness,? and in Rule 1.4(a)(1), which requires the attorney to promptly inform a client of a circumstance that requires the client?s informed consent. An obligation to act promptly can also be inferred from Rule 1.7 and the other conflicts rules. Attorney Carton acted in a dilatory manner, however, after learning of the POA. There is no evidence that she promptly explained the problem to Darlene Grover and moved for withdrawal. There is no evidence that she informed the Probate Court of the conflict prior to the September 21, 2011, judicial conference. Further, she did not move to formally withdraw as Darlene Grover?s attorney until November 21, 2011.
At the conclusion of the hearing Attorney Carton, through counsel, argued (or at least seemed to argue) that there was no conflict at the time she realized she had the POA, because the petition for guardian and conservator had already been filed and Darlene Grover had been appointed temporary guardian and conservator. The Panel finds this argument unconvincing. Counsel for Attorney Carton suggested to Attorney Hylie West that the Probate Judge?s appointment of a conservator would ?trump? the POA, but Attorney West replied that the instructions of the principal, i.e. Ms. Robinson, would trump a temporary court order. The Maine probate code, 18-A M.R.S §5-908, provides that the appointment of a conservator does not terminate or limit a POA unless the court so orders. Ultimately Judge Mazziotti agreed that the POA ?trumped? the temporary order.
Attorney Carton also argued that her fiduciary obligation did not arise until she chose to exercise her authority under the POA. The Panel also disagrees with this contention. A Maine durable power of attorney is effective when executed by the principal. Lillian Robinson did not want the POA used until she was incapacitated, but she had been medically determined to be incapacitated when Attorney Carton realized she had the POA, and the exercise of that power was appropriate and necessary at that time.
Attorney Carton and Judge Mazziotti discussed the conflicts issue at the September 21 probate conference, and Attorney Carton agreed to withdraw as Ms. Grover?s attorney. Once Attorney Carton withdrew as Darlene Grover?s attorney, her continued participation in the probate proceedings as Ms. Robinson?s fiduciary was potentially adverse to the interests of her former client. There is no specific evidence that Attorney Carton obtained the informed consent of Darlene Grover to continue participating in the probate matter, but the panel is willing to assume that Judge Mazziotti discussed these issues with the parties on September 21st and that Ms. Grover consented to Attorney Carton?s continued involvement in the matter.
The Panel concludes that Attorney Carton failed to recognize the conflict of interest and take steps to deal with the conflict with the promptness that the Rules of Professional Conduct contemplate. The Panel determines there was no evidence presented that Attorney Carton?s conduct caused direct financial harm, compromised the health and safety of her client, or prejudiced the parties.
The Panel is most concerned about the inadequacy of Attorney Carton?s office management and her continuing failure to recognize the need to improve her client database and conflict checking systems. The problems that arose in this case would in all likelihood have been avoided with better systems in place. The Panel strongly recommends that Attorney Carton consults with appropriate parties, e.g. other attorneys and information management consultants, and takes steps to improve her office management.
The Panel also notes that Attorney Carton had represented both Darlene Grover and Lillian Robinson in the past and seemed genuinely concerned about both. There is no evidence that Attorney Carton willfully or intentionally disregarded their interests. Although there was some injury to the client, the Panel concludes that the misconduct is minor, that there is little or no injury to the public, the legal system, and the profession, and that there is little likelihood of repetition by the Respondent. The Panel therefore concludes that the appropriate sanction in this matter is a dismissal with warning pursuant to Maine Bar Rule 7.1(e)(3)(B).
Dated: July 1, 2015
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
Kenneth L. Roberts, Public Member
1Attorney Carton?s acknowledgment of receipt referred to the Letter of Instruction as ?unsigned,? but the copy of the Letter of Instruction submitted by the Board was signed.
2In her Motion to Withdraw as Counsel for Darlene Grover, dated November 21, 2011, Attorney Carton was perhaps alluding to a conflict in citing Maine Rule of Professional Conduct 1.16 (a) (1) (representation will result in a violation of the rules of professional conduct or other laws) along with 1.16(b) (7) (other good cause), but she did not provide any specific details about those grounds.
Board of Overseers of the Bar v. Kirk Y. Griffin
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Docket No.: BAR#15-4
Issued by: Maine Supreme Judicial Court
Date: July 2, 2015
Respondent: Kirk Y. Griffin
Bar Number: 009485
Order: Disbarment
Disposition/Conduct: Reciprocal Order of Disbarment
M. Bar R. 26
This Court has received a certified copy of the February 25, 2015 Judgment of Disbarment and related Summary as issued by the Massachusetts Supreme Judicial Court against Defendant Kirk Y. Griffin. That sanction was issued for his violations of Mass. R. Prof. C. 1.1, 1.3, 1.15(b)(c)(d)(e)(5), l.l5(f)(1) and 8.4(c)(d)(h). Specifically, those violations included Mr. Griffin's trust account improprieties, including on multiple occasions his drawing checks on his IOLTA account that were not supported by sufficient funds, as well as his failure to properly hold trust property separate from his own property in that IOLTA account.
In this reciprocal discipline action filed by the Maine Board of Overseers of the Bar, Mr. Griffin has filed no response to this Court's April 30, 2015 Order and Notice. Pursuant to then applicable M. Bar R. 7.3(h), that Order and Notice were served by the Board by certified mail upon Mr. Griffin on May 21, 2015. That Order provided Mr. Griffin an opportunity to timely show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts.
In addition, on January 13, 2014 an Order of Suspension of Reciprocal Discipline was issued against Mr. Griffin concerning misconduct similar to that described herein. He remains suspended from practice in Maine at the present time.
Upon consideration of the Board's Petition for Reciprocal Discipline and Mr. Griffin's lack of objection to an identical suspension in Maine, it is now hereby ORDERED as follows:
DATED: July 2, 2015
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Margaret P. Shalhoob, Esq.
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Docket No.: GCF#14-194 & 14-302
Issued by: Grievance Commission
Date: July 22, 2015
Respondent: Margaret P. Shalhoob, Esq.
Bar Number: 003676
Order: Findings
Disposition/Conduct: Rejection of Stipulated Sanction
M. Bar R. 13(e)(7)
On July 21, 2015, with due notice and pursuant to Maine Bar Rule 13(e)(7)(D), Panel E of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Margaret P. Shalhoob, Esq. This disciplinary proceeding was commenced on February 11, 2015 by the Board's filing of a Stipulated Disciplinary Petition.
At the July 21, 2015 hearing, Attorney Shalhoob was represented by Robert Meggison, Esq. and the Board was represented by Aria Eee, Deputy Bar Counsel. Attorneys Armanda Day and Jane Clayton, who are the Complainants in this proceeding, did not attend the stipulated hearing. Prior to the disciplinary proceeding, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration. Bar Counsel and Attorney Shalhoob had the opportunity to remark on the proposed Report and their comments have been considered by the Grievance Commission Panel.
Taking all of the proffered evidence and comments presented at the hearing in the light most favorable to the stipulated proposed disposition, the Panel is unable to conclude that a public Reprimand is the appropriate disposition of this matter. Accordingly, pursuant to Maine Bar Rule 25(a), the office of Bar Counsel will prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: July 22, 2015
David S. Abramson, Esq., Chair
Grievance Commission Panel E
Board of Overseers of the Bar v. Suzanne Dwyer-Jones
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Docket No.: BAR#11-20
Issued by: Grievance Commission
Date: July 21, 2015
Respondent: Suzanne Dwyer-Jones
Bar Number: 008638
Order: Reinstatement Recommended
Disposition/Conduct: Reinstatement Recommended
Board of Overseers of the Bar v. Carletta M. Bassano, Esq.
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Docket No.: GCF#14-435
Issued by: Grievance Commission
Date: July 20, 2015
Respondent: Carletta M. Bassano, Esq.
Bar Number: 002307
Order: Reprimand
Disposition/Conduct: Disobeying the obligations or rules of a tribunal, Failure to provide timely discovery to the accused, Failure to properly supervise subordinate attorneys, Conduct prejudicial to the administration of justice
M. Bar R. 13
On July 20, 2015, with due notice and pursuant to Maine Bar Rule 13, Panel A of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Carletta M. Bassano, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Stipulated Disciplinary Petition on April 22, 2015.1
Attorney Bassano was represented by Assistant Attorney General William R. Fisher through preparation of the Stipulated Report of Findings. She was present and represented at the hearing by Assistant Attorney General Ronald W. Lupton. The Board was represented by Bar Counsel J. Scott Davis.
Complainant Brian C. Danielson did not attend the hearing. At least by April 27, 2015, the Board had been notified by the U.S. Postal Service that the last mailing address provided by Danielson was void, i.e. mailings were now "not deliverable" to him. In addition, although Board staff earlier had email correspondence with Danielson, on June 8, 2015 the email address provided by Danielson was no longer in service. Prior to the hearing, the parties submitted a Stipulated Report of Findings and Order for this Panel's review and consideration.
Having reviewed the Stipulated Report of Findings and Order as presented by counsel, the Panel makes the following disposition:
Respondent Carletta M. Bassano, Esq. of Ellsworth, Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. She was admitted to practice in Maine in 1980.
After serving as an Assistant District Attorney (ADA) for Prosecutorial District 7 (Hancock and Washington Counties), she was elected and served as the District Attorney (DA) therein from 2011 through 2014 when she retired.
On or about September 14, 2014, Brian C. Danielson filed a complaint with the Board alleging she had acted improperly while serving as District Attorney for Prosecutorial District 7. As stated in the Stipulated Disciplinary Petition of April 22, 2015 in this matter, Attorney Bassano admits she engaged in misconduct that violated Rules 3.4(c); 3.8(b); 5.1(b)(c)(1); and 8.4(a)(d) of the Maine Rules of Professional Conduct for which she should receive a reprimand.
The misconduct that resulted in those Rules violations is as follows:
During various time periods in 2013 through 2014, three different criminal defendants2 in unrelated prosecutions were handled by DA Bassano's Office. In each of those three matters, a court Order was issued that included a finding of a discovery violation having been committed by the DA's Office, with some form of resulting sanction being imposed against the State. DA Bassano had handled one of those prosecutions herself; the other two matters were handled by an ADA under her supervision.
Upon her election, DA Bassano created and imposed various discovery protocols and monitors in her office designed to improve upon discovery deficiencies she had either observed personally or been made aware of while working as an ADA in that office. Among those protocols was a system designed to ensure that defendants' discovery requests-both automatic and written requests-were properly received and handled in accordance with M. R. Crim. P. 16 by the responsible ADA.
Attorney Bassano agrees, however, that in all three of these discovery sanction cases-including the one she handled herself-those discovery protocols were not properly followed by the responsible ADA. She accepts responsibility-both directly and indirectly as supervisor of her office-for each of the three court-issued sanctions for discovery violations.
Accordingly, Attorney Bassano agrees that she violated M. R. Prof. Conduct 3.4(c) (disobeying the obligations or rules of a tribunal); 3.8(b) (failure to provide timely discovery to the accused); 5.1 (b)(c)(1) (failure to properly supervise subordinate attorneys); and 8.4(a)(d) (conduct prejudicial to the administration of justice).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. Given Attorney Bassano's own discovery violation and those of the ADA's she supervised, the Panel finds-as she agrees-that she violated M. R. Prof. Conduct 3.4(c); 3.8(b); 5.1(b)(c)(1); and 8.4(a)(d).
The Panel notes that Attorney Bassano accepted responsibility for the discovery violations and expressed remorse to the Panel for her violations of the Maine Rules of Professional Conduct. Bar Counsel has confirmed to the Panel that Bassano has no prior disciplinary or sanction record on file with the Board.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated they are unable to properly discharge their professional duties. Since the evidence supports a finding, and Attorney Bassano agrees, she violated the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Bassano's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 13, the Panel hereby issues that Reprimand to Carletta M. Bassano, Esq.
Date: July 20, 2015
M. Ray Bradford, Jr., Esq., Panel Chair
Sarah McPartland-Good, Esq., Panel Member
Milton R. Wright, Public Member
1The parties agree that the reference in paragraph 8 of the Stipulated Disciplinary Petition should be amended to Rule 3.4(c) rather than Rule 3.4(a) and that the reference to Rule 3.8(d) should be deleted.
2State of Maine vs. Daniel E. Brown Jr. ELLDC-CR-2013-00626; State of Maine vs. Robert L. Cousins ELLDC-CR-13-485; State of Maine vs. Jonathan A. Troth HANCD-CR-2013-00405.
Board of Overseers of the Bar v. William B. Entwisle, Esq.
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Docket No.: GCF#14-434
Issued by: Grievance Commission
Date: July 20, 2015
Respondent: William B. Entwisle, Esq.
Bar Number: 003933
Order: Reprimand
Disposition/Conduct: Disobeying the obligations or rules of a tribunal, Failure to provide timely discovery to the accused, Misconduct
M. Bar R. 13
On July 20, 2015 with due notice and pursuant to Maine Bar Rule 13, Panel A of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent William B. Entwisle, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Stipulated Disciplinary Petition on June 11, 2015.
At the hearing, Entwisle was present and represented by Attorney Marvin H. Glazier, and the Board was represented by Bar Counsel J. Scott Davis. Complainant Brian C. Danielson was not in attendance at the hearing. At least by April 27, 2015 the Board had been notified by the U. S. Postal Service that the last mailing address provided by Danielson was void, i.e. mailings were now "not deliverable" to him. In addition, although Board staff had earlier had email correspondence with Danielson, on June 8, 2015 the email address provided by Danielson was no longer in service. Prior to the hearing date, the parties submitted that stipulated proposed sanction Report for this Panel?s review and consideration.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent William B. Entwisle, Esq. of Ellsworth, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine, subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. He was admitted to practice in Maine in 1988 and has been employed as a criminal prosecutor since 2003.
On or about September 14, 2014, Brian C. Danielson filed a complaint with the Board against Entwisle alleging that he acted improperly in his capacity as an Assistant District Attorney (ADA) for Prosecutorial District #7 (comprising Hancock and Washington Counties). As stated in the Stipulated Disciplinary Petition of April 22, 2015 in this matter, ADA Entwisle now admits and agrees he engaged in misconduct that violated Rules 3.4(c); 3.8(b); and 8.4(a) of the Maine Rules of Professional Conduct for which he should receive a reprimand.
The conduct that resulted in those Rules violations by ADA Entwisle is set forth as follows:
Accordingly Entwisle now agrees that his conduct and actions In these two separate criminal prosecutions violated M. R. Prof. Conduct 3.4(c) (disobeying the obligations or rules of a tribunal); 3.8(b) (failure to provide timely discovery to the accused); and 8.4(a) (conduct in violation of any provision of the Maine Rules of Professional Conduct) in each instance.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. Accordingly, based upon ADA Entwisle's improper actions and lack of appropriate professional judgment, the Panel finds - as he agrees - that he violated M. R. Prof. Conduct 3.4(c); 3.8(b); and 8.4(a). The Panel notes that ADA Entwisle has taken responsibility for his behavior. He has acknowledged the wrongfulness of his actions and expressed remorse to the Panel for his violations of those particular portions of the Maine Rules of Professional Conduct. Bar Counsel has confirmed to the Panel that ADA Entwisle has no prior disciplinary or sanction record on file with the Board.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and ADA Entwisle agrees that he did in fact violate the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Entwisle's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 13, the Panel hereby issues that Reprimand to William B. Entwisle, Esq.
Date: July 20, 2015
M. Ray Bradford, Jr., Esq., Panel Chair
Sarah McPartland-Good, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Steven A. Juskewitch, Esq.
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Docket No.: GCF#14-366
Issued by: Grievance Commission
Date: July 20, 2015
Respondent: Steven A. Juskewitch, Esq.
Bar Number: 000272
Order: Reprimand
Disposition/Conduct: Reporting or threatening to report misconduct to an administrative authority solely to obtain an advantage in a civil matter, dealing with an unrepresented person, Conduct prejudicial to the administration of justice
M. Bar R. 13(e)
On July 20, 2015 with due notice and pursuant to Maine Bar Rule 13(e), Panel A of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Steven A. Juskewitch, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Stipulated Disciplinary Petition on March 18, 2015.
At the hearing, Attorney Juskewitch was present and represented by Attorney Malcolm L. Lyons, and the Board was represented by Bar Counsel J. Scott Davis. Complainants Gerard and Lucy Poole were not in attendance at the hearing but had earlier been provided by Bar Counsel Davis with a copy of the proposed Report and Gerard Poole indicated his understanding of the sanction set forth within that proposed Report. Prior to that hearing date, the parties submitted that stipulated proposed sanction Report for this Panel's review and consideration.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Stephen A. Juskewitch, Esq. of Ellsworth, Maine has been at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. He was admitted to practice in Maine in 1976, and is currently a sole practitioner with a law office located in Ellsworth, Maine.
On or about July 21, 2014 Gerard and Lucy Poole filed a grievance complaint against Juskewitch. That complaint was based upon the manner in which he repeatedly improperly contacted Lucy concerning the position(s) she was then asserting regarding her interest in real estate located at 6 Hardie Lane in Stonington, Maine.
The relevant chronological history regarding the Pooles' complaint matter is set forth as follows:
At the time of his actions, Juskewitch became aware that Lucy suffered from significant and incapacitating medical problems, and he now acknowledges he took advantage of her vulnerable state.
As referenced several times by complainants Lucy and Gerard Poole, Juskewitch engaged in repetitive improper conduct and inappropriate action to try to obtain Lucy Poole's signature on documents which would ultimately benefit his client, James Hardie, to the disadvantage of Lucy Poole.
Juskewitch did so without properly informing Lucy that: a). he was not her attorney; b). instead, he was in fact the attorney for James Hardie, whose interests were directly adverse to hers; and c). Hardy would benefit to Lucy's disadvantage if she followed Juskewitch's "advice." Juskewitch admits that his conduct violated M. R. Prof. Conduct 4.3; and 8.4(a)(d).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. Accordingly, based upon Attorney Juskewitch's improper actions and lack of appropriate professional judgment, the Panel finds that he violated M. R. Prof. Conduct 3.1(b); 4.3; and 8.4(a)(d) (conduct prejudicial to the administration of justice). The Panel notes that Attorney Juskewitch has taken responsibility for his behavior. He has acknowledged the wrongfulness of his actions and expressed remorse to the Panel for his violations of those particular portions of the Maine Rules of Professional Conduct. Bar Counsel has confirmed to the Panel that although Juskewitch has no prior disciplinary record on file with the Board, he was publicly sanctioned in 2010 and 2011 with two dismissals with warnings issued upon him after hearings with findings being issued that he engaged in minor professional misconduct in two separate and unrelated matters.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Juskewitch agrees that he did in fact violate the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Juskewitch's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 13(e)(10)(C) the Panel hereby issues that reprimand to Steven A. Juskewitch, Esq.
Date: July 20, 2015
M. Ray Bradford, Jr., Esq., Panel Chair
Sarah McPartland-Good, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Philip S. Cohen, Esq.
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Docket No.: BAR-15-3
Issued by: Maine Supreme Judicial Court
Date: July 27, 2015
Respondent: Philip S. Cohen, Esq.
Bar Number: 007930
Order: Order and Decision
Disposition/Conduct: Suspension
M. Bar R. 13(g)( 4)
This matter arises from a grievance complaint filed by Assistant District Attorney Andrew Matulis against Attorney Philip S. Cohen of Waldoboro, Maine. It is now before the Court as a result of an Information filed by the Board of Overseers of the Bar on March 26, 2015 pursuant to formerly applicable M. Bar R. 7.2(b)(1)1
A hearing was conducted at the Capitol Judicial Center in Augusta on July 27, 2015. At the hearing, the Board of Overseers was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Cohen was present and represented by Attorney Walter F. McKee. The parties stipulated to the facts that led to the grievance filings and to a finding that those facts constitute Cohen's violation of specific portions of the Maine Rules of Professional Conduct. The parties also agreed to the form and terms of the sanction to be imposed by the Court based upon Cohen's admitted violations of Rules 3.4(c) and 8.4(a)(b)(d) of the Maine Rules of Professional Conduct. Prior to that hearing, ADA Matulis was notified by Bar Counsel of the parties' proposed stipulation and sanction, and chose to not attend that hearing.
1. Findings of Fact
2. Conclusions Regarding Violation of the Maine Rules of Professional Conduct
Attorney McKee and Bar Counsel agree and the Court so finds that Attorney Cohen disobeyed obligations under the rules of the tribunal in violation of M. R. Prof. Conduct 3.4(c) as follows:
Attorney McKee and Bar Counsel agree and the Court so finds that Attorney Cohen committed criminal or unlawful acts that reflected adversely upon his honesty, trustworthiness or fitness as a lawyer in other respects in violation of M. R. Prof. Conduct 8.4(b) as follows:
Attorney McKee and Bar Counsel agree and the Court so finds that Attorney Cohen engaged in conduct that was prejudicial to the administration of justice in violation of M. R. Prof. Conduct 8.4(d) as follows:
The respective Rules are set forth as follows:
3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or unlawful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; or
(d) engage in conduct that is prejudicial to the administration of justice.
3. Sanction
Accordingly, the Court imposes upon Attorney Cohen a six (6) months suspension from practice, with all but thirty (30) days of that period being suspended for a period of one (1) year subject to the following conditions:
Dated: July 27, 2015
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1The former Maine Bar Rules were repealed and replaced, effective July 1, 2015. The repeal and replacement involved a major revision and renumbering.
Board of Overseers of the Bar v. Peter Todd Travis, Esq.
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Docket No.: GCF#14-504 & 14-512
Issued by: Grievance Commission
Date: August 18, 2015
Respondent: Peter Todd Travis, Esq.
Bar Number: 005280
Order: Findings
Disposition/Conduct: Rejection of Stipulated Sanction
M. Bar R. 13(e)(7)
On July 23, 2015, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning misconduct by the Respondent, Peter Todd Travis, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by its May 5, 2015 filing of a formal Disciplinary Petition.
Despite notice of the July 23rd disciplinary hearing, Attorney Travis did not appear. The Board was represented by Deputy Bar Counsel Aria Eee. Complainant Erin Maher lives out of state and thus did not attend the hearing. Complainant John Nickols also lives out of state and likewise did not attend; however, Bar Counsel provided both complainants with a copy of the proposed order in advance of the hearing. Prior to that date, Bar Counsel had negotiated with Attorney Travis a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Taking all of the proffered evidence and comments presented at the hearing in the light most favorable to the stipulated proposed disposition, the Panel is unable to conclude that a public Reprimand is the appropriate disposition of this matter. Accordingly, pursuant to Maine Bar Rule 25(a), the office of Bar Counsel will prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13 (e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: August 18, 2015
James A. McKenna III, Esq., Panel Chair
On behalf of Grievance Panel D
Board of Overseers of the Bar v. In Re Suzanne Dwyer-Jones
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Docket No.: BAR-11-20
Issued by: Maine Supreme Judicial Court
Date: August 26, 2015
Respondent: Suzanne Dwyer-Jones
Bar Number: 008638
Order: Reinstatement
Disposition/Conduct: Reinstatement Approved
Maine Bar Rule 29
Upon receipt and review of the Report and Recommendation of Panel C On Petition of Suzanne Dwyer-Jones for Reinstatement dated July 21, 2015, and having received no objection by Petitioner or Bar Counsel, the court adopts in full the findings of Panel C and concludes that Petitioner has met her burden of proving by clear and convincing evidence that her reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest. The court finds, however, that the imposition of the following additional conditions upon her reinstatement are appropriate:
The Petitioner shall be reinstated to the Bar of the State of Maine, subject to the forgoing conditions, which shall be in full force and effect for a period of three years,1 effective September 1, 2015.
Dated: August 26, 2015
Hon. Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
1Bar Counsel may move, within the three-year period, for an extension of one or more of the conditions upon a showing of good cause.
Board of Overseers of the Bar v. Dale L. Lavi, Esq.
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Docket No.: GCF#15-056
Issued by: Grievance Commission
Date: August 20, 2015
Respondent: Dale L. Lavi, Esq.
Bar Number: 008848
Order: Findings
Disposition/Conduct: Probable cause found for further proceedings before the Court
M. Bar R. 13
On July 23, 2015, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Bar Rule 13(e)(7) concerning misconduct by Respondent David L. Lavi, Esq. On June 5, 2015 Bar Counsel J. Scott Davis filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On June 10, 2015 the Board served this Disciplinary Petition on Attorney Lavi along with a Summons requiring him to answer the Petition within twenty days.
This Summons specifically warned Mr. Lavi that failure to file an answer to the Disciplinary Petition within 20 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Mr. Lavi did not answer the Board?s Petition. However, Mr. Lavi did appear at the July 23, 2015 public disciplinary hearing and addressed the Panel. He was not represented by counsel.
Because Mr. Lavi failed to respond to the Board?s Petition, pursuant to M. Bar R. 13(e)(3), the facts set forth and the misconduct alleged in the Board?s Disciplinary Petition are taken as admitted by Mr. Lavi (see M. Bar R. 20(a)). Therefore, the Panel adopts in total the assertions in the Board?s Petition:
At the July 23, 2105 disciplinary hearing both Mr. Lavi and Kenneth and Jill Artkop were present and addressed the Panel. They were not placed under oath. The Panel considered their comments during its deliberations as to the proper resolution of the Artkops? complaint.
The Artkops confirmed Mr. Lavi?s neglect of their bankruptcy action, as described in the Board?s Disciplinary Petition, and described how his neglect had damaged them.
Mr. Lavi confirmed the Board?s repeated efforts to have him respond to the Artkops? complaint and he confirmed his repeated silence. He stated that several months ago he had closed his Camden, Maine office and moved his solo practice to his home in So. Thomaston. At the current time his practice consists almost entirely of criminal defense work, with perhaps 40 active clients. He stated that he was skilled at criminal defense work. Such work fulfilled the reason he had become a lawyer, to help people in need.
This, however, was not the case with his bankruptcy work, and when Mr. Lavi received the Board?s thick mailings describing the Artkops? complaint, he was not emotionally able to even open them. He feared that if he read the Artkops? complaint it would so emotionally consume him that he would not be able to provide good service to his criminal clients. He was frightened.
Mr. Lavi emphasized that he had indeed attempted to mail to the Artkops their bankruptcy file. He could not explain why neither they nor their new attorney ever received it.
The Panel concludes that Mr. Lavi intentionally, knowingly and negligently violated the following provisions of the Maine Rules of Professional Conduct:
Rule 1.1, Competence: he failed to provide the Artkops with competent representation in their effort to declare bankruptcy.
Rule 1.3, Diligence: he eventually ignored the Artkops? case.
Rule 1.4, Communication: he ignored the Artkops repeated attempts to communicate with him.
Rule 1.5, Fees: he collected from the Artkops an unreasonable fee.
Rule 1.15, Safekeeping property, Client trust Accounts, Interest of Trust Accounts: he has failed to return the Artkops? bankruptcy file.
Rule 1.16, Declining or Terminating Representation: he has not formally terminated his representation of the Artkops; he has ignored them.
Rule 8.1, Bar Admission and Disciplinary Matters: he ignored the Board?s disciplinary proceedings until the day of the hearing, when he appeared.
Rule 8.4 Misconduct: in violating the above Rules of Professional Conduct, he has engaged in conduct that is prejudicial to the administration of justice.
After hearing the comments of the Artkops and Mr. Lavi, the Panel closed the hearing and commenced its deliberations. Given Mr. Lavi?s failure to answer the Board?s charges, the only issue before the Panel was the matter of appropriate sanction for his misconduct.
Before reaching its decision the Panel reviewed a February, 2010 Stipulated Report of Findings and Order of Panel C of the Grievance Commission. In that Order, Mr. Lavi agreed to a Public Reprimand for his failure to properly represent a client in consumer debt matters.1
Pursuant to M. Bar R. 13 (e)(10)(E), based on the facts set forth in the Board?s Petition and on the comments made by the Artkops and Mr. Lavi at the hearing, the Panel finds there is probable cause for suspension or disbarment and hereby directs Bar Counsel to file an Information pursuant to M Bar R. 13(g).
In closing, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties.
Date: August 20, 2015
James A. McKenna, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emilie van Eeghen, Public Member
1The agreed upon facts in the 2010 disciplinary action were similar to this instant case:
?Undoubtedly, his [Mr. Lavi?s] failure to timely communicate or meet with Ms. Miller in order to file her bankruptcy and to avoid garnishment of her wages resulted in real harm to Ms. Miller?.?
Board of Overseers of the Bar v. Julie C. Molloy
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Docket No.: BAR-15-5
Issued by: Maine Supreme Judicial Court
Date: September 21, 2015
Respondent: Julie C. Molloy
Bar Number: 008681
Order: Suspension
Disposition/Conduct: Reciprocal Suspension
M. Bar R. 26
On February 24, 2015 the Supreme Judicial Court of the Commonwealth of Massachusetts issued an Order of Term Suspension suspending Julie C. Molloy for her violations of the Massachusetts Rules of Professional Conduct. The Maine Board of Overseers of the Bar promptly initiated a reciprocal discipline action and, as part of that action, we issued a May 15, 2015 Order and Notice that provided Ms. Molloy an opportunity to respond and show cause why we should not impose discipline identical to that imposed upon her in Massachusetts. See M. Bar R. 26(c)(2).
Because Ms. Molloy has failed to file a response to that order; the Board's petition is granted, by default. Therefore, it is ORDERED:
For the Court,
DATED: September 21, 2015
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Wenonah M. Wirick, Esq.
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Docket No.: GCF#14-402
Issued by: Grievance Commission
Date: September 24, 2015
Respondent: Wenonah M. Wirick, Esq.
Bar Number: 009634
Order: Reprimand
Disposition/Conduct: Inadvertent Disclosures, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)(7)(D)
On September 24, 2015, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning misconduct by the Respondent, Wenonah M. Wirick, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 20, 2015.
At the September 24, 2015 hearing, Attorney Wirick was represented by Attorney Peter J. DeTroy and the Board was represented by Aria Eee, Deputy Bar Counsel. Attorney Nancy L. Morin, who is the Complainant in this proceeding, did not attend the stipulated hearing, although Deputy Bar Counsel did provide her with an advanced copy of this proposed order. Attorney Morin then had the opportunity to remark on the proposal prior to its consideration by this Grievance Commission Panel.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Wenonah M. Wirick, Esq. of Bath, ME has been at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Wirick was admitted to the Maine Bar in 2004 and she is currently a partner at Conley & Wirick, P.A.
On or about August 14, 2014, Attorney Nancy Morin filed a complaint with the Board related to a concluded divorce matter involving both attorneys. Attorney Morin represented ?Mr. G? in a divorce action and Attorney Wirick represented his then wife, ?Mrs. G.?
Following the grievance complaint filing by Attorney Morin, Attorney DeTroy filed a response on Attorney Wirick?s behalf. That response provided background information about Wirick?s representation of Mrs. G. in the family law and other related matters.
During that representation, Attorney Wirick was advised by her client of confidential attorney/client information the client had seen which was contained within emails between Attorney Morin and Mr. G. While Attorney Wirick did not personally obtain the information (her client did) she attempted to make use of it at a subsequent hearing before the District Court judge. Attorney Morin objected to that use, the attorneys met in chambers with the judge and she rejected Attorney Wirick?s attempt to utilize the privileged information. While the manner in which Attorney Wirick received the information was unusual, she was aware that information was part of a communication between another member of the bar and that lawyer?s client. While Attorney Wirick believed that she was free to make use of the privileged information, she should have first requested the court?s permission to do so. Of note, the Maine Law Court addressed a similar dispute in its decision, Fiber Materials v. Subilia, 2009 ME 71.
In that regard, Maine Rules of Professional Conduct 4.4(a)(b) [Respect For Rights Of Third Persons; Inadvertent Disclosures] and 8.4(d) [Conduct Prejudicial to the Administration of Justice] required Attorney Wirick to disregard the confidential, privileged information between Mr. G and his attorney. Those Rules further required Attorney Wirick not to make use of the information, unless she requested and was granted permission by the court to do so.
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Attorney Wirick?s behavior in violating MRPC 4.4(b) and 8.4(d) constituted professional misconduct. Due to Attorney Wirick?s above-outlined failure, Mr. G?s confidential and privileged communications with this attorney were improperly utilized in his divorce proceeding. The Panel notes that Attorney Wirick has taken responsibility for her transgression. At the disciplinary hearing, Attorney Wirick expressed her remorse for her violations of the Maine Rules of Professional Conduct. It is expected that when an attorney becomes aware of or receives privileged information related to another lawyer?s client, she should immediately notify opposing counsel and if necessary, seek guidance and permission from the tribunal, consistent with MRPC 4.4(b).
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Wirick agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Wirick?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Wenonah M. Wirick, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C).
Date: September 24, 2015
Thomas H. Kelley, Esq., Panel Chair
Andre James Hungerford, Esq., Panel Member
Kenneth L. Roberts, Public Member
Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: GCF#14-443
Issued by: Grievance Commission
Date: September 10, 2015
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Reprimand
Disposition/Conduct: Competence, Misconduct, Conduct prejudicial to the administration of justice
M. BAR R. 13
On August 14, 2015, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing pursuant to Rule 13(e) of the Maine Bar Rules concerning the Respondent, Donald F. Brown, Esq., of Brewer, Maine. The hearing was open to the public. Panel members included Thomas H. Kelley, Esq., Chair; Vendean Vafiades, Esq.; and Kenneth Roberts, Public Member. The Board of Overseers was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Brown was present and represented by Walter F. McKee, Esq.
This proceeding was initiated by the filing of a Disciplinary Petition by the Board of Overseers of the Bar, dated May 1, 2015. Attorney Brown filed a response through counsel that was received by the Board on June 1, 2015. These documents are part of the Board?s official record.
The Board submitted Board Exhibits 1-30 in advance of the hearing, and counsel for Attorney Brown submitted Respondent?s Exhibits 1-4 in advance of the hearing. The documents submitted by Attorney Brown as his exhibits were included in the Board?s exhibits, albeit under different numbers. The Board and Attorney Brown, through their respective counsel, stipulated to the admission of all documents.
The Board called as its witnesses the Complainant, Karina Richardson; Attorney Jeffrey W. Davidson, who had represented Ms. Richardson in various proceedings; and Respondent Attorney Donald F. Brown. Counsel for Attorney Brown also conducted his own direct examination of Attorney Brown.
The parties concur that most of the facts relevant to this proceeding are not in dispute. For approximately twelve years, until January 2013, Karina Richardson was employed by Washington County in an administrative capacity at the County Jail. The Washington County Sheriff at that time, Donald Smith, suspended Ms. Richardson from her position in December 2012 because he believed that she had misused funds in the inmate benefit bank account. Sheriff Smith requested that the County Commissioners terminate Ms. Richardson?s employment, and that request precipitated a contentious series of legal proceedings.
Karina Richardson vigorously contested the claim that she had misused the inmate benefit fund and sought a hearing before the County Commissioners. The Commissioners heard the parties in January 2013 and authorized Ms. Richardson?s discharge at that time. As a unionized employee, however, Ms. Richardson was also entitled to file a grievance and seek arbitration to challenge the termination, and she invoked her right to that process.
Attorney Davidson represented Ms. Richardson before the County Commissioners and in the arbitration proceeding. The law firm of Rudman and Winchell was general counsel for Washington County during this period and represented the County at the Commissioner?s hearing and in the arbitration process. Sheriff Smith sought separate representation at the Commissioner?s hearing and engaged Attorney Brown. Attorney Brown participated in the Commissioner?s hearing on the termination of Ms. Richardson on behalf of Sheriff Smith.
After her termination by the County Commissioners, Karina Richardson filed for unemployment benefits from the State of Maine. (Her grievance and request for arbitration remained pending for a lengthy period. Ultimately an arbitrator ruled that she should have been suspended for a period of six months but not terminated.) A deputy of the Maine Unemployment Insurance Commission (MUIC) found that Ms. Richardson had been discharged but not for misconduct and therefore was eligible for unemployment insurance (UI) benefits. Washington County appealed the finding that there was no misconduct.
On May 15, 2013, an administrative hearing officer conducted a lengthy hearing (approximately eight hours, according to Ms. Richardson) to determine whether Karina Richardson was discharged from her position at the County Jail for misconduct related to her work. The firm of Rudman and Winchell represented the County at this hearing, and Attorney Davidson represented Ms. Richardson. Attorney Brown was not involved in this hearing. The hearing officer thereafter issued a decision, dated May 17, 2013, finding that Ms. Richardson had not engaged in misconduct related to her employment and thus was eligible for unemployment benefits.
Both Karina Richardson and Attorney Davidson testified that they understood from County officials that the County did not intend to pursue a further appeal of the unemployment compensation matter. A letter of October 13, 2014, from Rudman and Winchell attorney John Hamer to Attorney Brown, appears to confirm that understanding. Bd. Ex. 15.
Sheriff Smith did not agree with the hearing officer?s finding that there was no misconduct on Ms. Richardson?s part, and he engaged Attorney Brown to pursue an appeal to the Unemployment Insurance Commission. Attorney Brown appealed the hearing officer?s decision on May 31, 2013 to the three-member board of the Maine Unemployment Insurance Commission. Bd. Ex. 27. It is not clear that Attorney Brown had the authority from the County Commissioners to file that appeal. There is also no indication that Attorney Brown sent a copy of the notice of appeal and attached letter to Attorney Davidson or Karina Richardson.
Attorney Hamer stated in his October 13, 2014, letter that the County Commissioners had advised Attorney Brown by letter dated June 3, 2013, that they did not wish to file any further appeal of the Richardson case and a related matter. The letter goes on to state Attorney Hamer?s understanding that Attorney Brown met with County officials about a week later and persuaded them to allow him to pursue a further appeal. Attorney Hamer also stated that the County Commissioners did not learn that Attorney Brown had filed an appeal to Superior Court in the fall of 2013 until April 2014.
Attorney Brown acknowledged that he may not have met with the County Commissioners until after May 31, 2013, i.e. after he had already filed the appeal to the Commission. Attorney Brown?s recollection of any such meeting was hazy. Attorney Brown stated clearly, however, that he and the Sheriff had met with the Commissioners after the Maine Unemployment Insurance Commission denied the County?s appeal and upheld the decision of the hearing officer. That decision was dated September 30, 2013. Attorney Brown testified that the Commissioners authorized him to file an 80C appeal of the Commission?s final agency action to Superior Court.
Unfortunately, the Commissioners made no contemporaneous written record stating that Attorney Brown was authorized to file an appeal to the Commission and later an 80C appeal to Superior Court. County officials acknowledged after the fact, however, that they had at least one discussion with Attorney Brown in 2013 about pursuing the unemployment compensation appeal further. See the letters of Attorney John Hamer of July 9, 2014, and October 13, 2014. Bd. Ex. 15 and 21. In the letter of July 9, 2014, the Commissioners, through Attorney Hamer, authorized payment of Attorney Brown?s bill but also instructed him to cease any pursuit of an appeal in Ms. Richardson?s case.
In early November 2013 Attorney Brown filed an appeal of the Karina Richardson unemployment compensation case in Superior Court in Washington County pursuant to the Maine Administrative Procedure Act, 5 M.RS. §11001 et seq. and Rule 80C of the Maine Rules of Civil Procedure.1 Section 11003 of the Act requires service to be made upon the state agency, the Attorney General, and all parties to the agency proceeding. Attorney Brown acknowledges that he read the statute and the rule before commencing the litigation. Nevertheless, he failed to serve the petition upon Ms. Richardson, who was a party to the agency proceeding, or her attorney, Attorney Davidson, while he did serve it upon the state agency and the Attorney General. Further, Attorney Brown took no steps during the pendency of the litigation to rectify this error.
Assistant Attorney General Elizabeth Wyman entered her appearance for Maine Unemployment Insurance Commission by letter to the Superior Court dated November 14, 2013. The ?copy to? line of her letter states that copies were sent to MUIC, Attorney Brown, and ?Jeffrey Davidson, Esq. (attorney for Karina B. Richardson)?. Bd. Ex. 17. AAG Wyman filed the administrative record of the case with the Superior Court by letter dated December 12, 2013, and again noted that a copy was being sent to Attorney Davidson as attorney for Karina Richardson. Bd. Ex. 18. Also, the subject line in each of the letters referred to the case of Washington County v. Maine Unemployment Insurance Commission and Karina B. Richardson. These references to Attorney Davidson did not prompt Attorney Brown to serve the Rule 80C petition on Karina Richardson.2 Attorney Brown filed three motions for enlargement of time to file his brief in January, February, and March 2014, and in late March 2014 he filed the brief for Washington County. He did not serve Attorney Davidson or Ms. Richardson with any of these documents.
Assistant Attorney General Nancy Macirowski entered her appearance for MUIC and filed a motion for enlargement of time to file the agency?s brief by letter dated April 14, 2014. Her cover letter also referred to Karina Richardson in the subject line and noted that a copy was being sent to Attorney Davidson. That filing prompted Attorney Davidson to write to the Superior Court Clerk on May 16, 2014, stating that neither he nor Karina Richardson had ever been served the notice of appeal or the petition and asking about the status of the case. Bd. Ex. 20. The letter included a notation that a copy was being sent to Attorney Brown. AAG Macirowski filed the agency?s brief by mail on May 22, 2014. Bd. Ex. 7. In early June 2014 Attorney Brown finally sent copies of his brief and reply brief to Attorney Davidson, but at no time did he attempt to rectify his failure to properly serve Karina Richardson with the 80C petition.
On June 15, 2014, Attorney Davidson sent a letter to the Clerk of Court requesting a status conference with the Court to determine if the case should be dismissed because Ms. Richardson had never been properly served. On July 18, 2014, Attorney Davidson filed a Motion to Dismiss and or Sanctions on the basis that Ms. Richardson had never been properly served and that Sheriff Smith did not have the authority to pursue the case. On July 25, 2014, AAG Macirowski filed a motion to dismiss the Richardson case and a related matter involving another Washington County employee on the basis that Washington County officials had informed her that Attorney Brown had been instructed by the Commissioners by letter dated July 9, 2014, to dismiss these appeals. Bd. Exhibits 8-10. The Superior Court had in the meantime scheduled a status conference for July 30, 2014, in response to Attorney Davidson?s June 15 request.
In a letter dated October 24, 2014, in response to the grievance filed with the Board of Overseers of the Bar by Karina Richardson, Attorney Brown acknowledged that he had received a letter from John Hamer of Rudman and Winchell in July 2014 advising him that the County Commissioners wanted him to dismiss the pending unemployment compensation cases. Attorney Brown stated that he then discussed the matter with Sheriff Smith, who told him to continue with the appeals. Attorney Brown took no specific steps before July 30, 2014, to dismiss the cases, but he informed the Court on July 30 at the status conference (which he attended by telephone) that he did not object to the dismissal of the two cases. Justice Billings of the Superior Court issued an order that same day dismissing the pending unemployment compensation cases but reserving judgment on Attorney Davidson?s motion for sanctions.3 Bd. Exhibits 12, 13, and 25.
In the complaint to the Board and in related filings, including the original complaint, Karina Richardson and Attorney Davidson asserted that Sheriff Smith, with the collaboration of Attorney Brown, had intentionally failed to notify her of the appeal to the Commission and the 80C filing to prevent her from being heard in those appeals. Bd. Exhibits 1, 22, and 27. At the grievance hearing Ms. Richardson continued to express the belief that the failure to notify her of the appeal was intentional.
Assistant Bar Counsel stated at the hearing that, if this panel should find that Attorney Brown intentionally failed to notify Ms. Richardson of the appeal, then it should conclude that he violated Rule 3.4(c) of the Maine Rules of Professional Conduct (MRPC). Rule 3.4 governs fairness to opposing parties and counsel and states that a lawyer shall ?not knowingly disobey an obligation under the rules of a tribunal ?? In the alternative Assistant Bar Counsel stated that, if the panel concluded that Attorney Brown did not intentionally fail to notify Ms. Richardson of the appeal, then it should conclude that Attorney Brown violated Rule 1.1 of the MRPC by failing to provide competent representation to Sheriff Smith. Assistant Bar Counsel also argued that in any event Attorney Brown?s conduct violated Rule 8.4(a) and (d), MRCP, by violating a provision of the MRPC and by engaging in conduct prejudicial to the administration of justice. He concluded by asking the panel to issue a reprimand to Attorney Brown.
Attorney Brown insisted that he did not intentionally fail to serve the 80C petition on Ms. Richardson. Rather, he attributed his failure to serve her as an unintentional oversight, and he noted that he had repeatedly expressed his regret for failing to serve Ms. Richardson. Counsel for Attorney Brown argued that there was no intentional act that would warrant a sanction under Rule 3.4, MRPC. Counsel conceded that Attorney Brown?s actions displayed a failure of competence and thus warranted a finding of misconduct. He argued further, however, that the misconduct was minor, that there was little injury to a client, the public, the legal system, or the profession, and that there was little likelihood of repetition. He concluded by asking the panel to issue an admonition rather than a reprimand.4
It is clear that there is a great deal of animosity between Sheriff Smith and Karina Richardson. The panel concludes, however, that there is insufficient evidence to find that Attorney Brown knowingly disregarded a statutory directive by intentionally failing to serve the 80C petition upon Ms. Richardson. Indeed, if the Sheriff wanted to continue a campaign of harassment against Ms. Richardson, as she believed, service of the petition may have caused her considerably more emotional stress. In any event the panel is not persuaded that Attorney Brown violated Rule 3.4(c), MRPC.
Attorney Brown, through counsel, concedes that his failure to serve the petition upon Ms. Richardson violated Rule 1.1, MRPC, which requires an attorney to provide competent representation, but he urges us to find that this misconduct was a minor mistake on his part. The panel disagrees with the assertion that the misconduct was minor and caused little injury.
If Attorney Brown had initially failed to serve Karina Richardson with the 80C complaint but had thereafter taken steps to correct this failure, the panel would be more sympathetic to the claim that the misconduct was minor. For example, if Attorney Brown had taken steps to serve Ms. Richardson after receiving the letters from AAG Wyman in November and December 2013 that noted Karina Richardson as a party in the subject line and Attorney Davidson in the copy line, this panel would be more sympathetic to the claim that the misconduct was minor. As the litigation proceeded, Attorney Brown should have recognized that he had failed to serve a necessary party. Even after Attorney Davidson?s letter of inquiry to the Court in May 2014, however, Attorney Brown never took any formal steps to correct his failure to amend and serve the petition and join Ms. Richardson as a necessary party.
As Justice Billings noted at the hearing on the motion to dismiss:
?I am troubled by the fact that the process that would be expected to be followed by an attorney in such matters clearly has not been followed here. Attorney Brown is an experienced practitioner and should have known that Ms. Richardson was a party to the action and needed to be served with the petition in this matter and all other pleadings in this matter. If he had any doubt about that it certainly should have been researched, and there?s a pretty clear answer that could have easily been obtained. So it?s clear to me, simply from reviewing the Court?s filings, that Mr. Brown did not meet his obligations to the Court in this matter.?
Bd. Ex. 25 at 15. The effect of Attorney Brown?s misconduct, the denial to Ms. Richardson of an opportunity to participate in a legal proceeding of great importance to her, was a significant breach of his professional responsibility.
Further, the injury occasioned by Attorney Brown?s misconduct affected not only Ms. Richardson but also Washington County, the Office of the Attorney General, and the Judicial Department, all of which spent time and money on a case that was litigated but could not be resolved on the merits because of the failure to serve Ms. Richardson.
In considering the type of sanction to be imposed for attorney misconduct, the panel is authorized to consider any prior disciplinary action involving the attorney. After doing so, based upon the evidence and record before it, this panel determines that the Respondent, violated Rule 1.1 and Rule 8.4 (a) and (d) of the Maine Rules of Professional Conduct and that the appropriate disposition of this petition is that Attorney Brown should be and is hereby reprimanded.
Dated: September 10, 2015
Thomas. H. Kelley, Esq., Panel Chaie
Vendean V. Vafiades, Esq., Panel Member
Kenneth L. Roberts, Public Member
1The Petitioner was listed as Washington County through its Sheriff Donald G. Smith, a somewhat odd phrasing, since the Sheriff has no independent authority to speak for the County in such proceedings.
2Attorney Davidson testified at the hearing in this matter that after either the November or December letter from AAG Wyman he called Rudman and Winchell to ask whether the County was pursuing an appeal of the Richardson matter and was told the County was not pursuing an appeal. The attorney for Attorney Brown suggested that Attorney Davidson could have inquired further and might have learned about the 80C petition. That does not excuse Attorney Brown?s failure to serve Ms. Richardson with the petition.
3There is nothing in the record of this proceeding indicating whether the Court ever acted on the request for sanctions.
4A recent change to the Maine Bar Rules adopted the term ?admonition? in place of ?dismissal with warning.? Maine Bar Rule 13(e)(10)(B).
Board of Overseers of the Bar v. David J. Van Dyke, Esq.
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Docket No.: GCF#14-476
Issued by: Grievance Commission
Date: September 30, 2015
Respondent: David J. Van Dyke, Esq.
Bar Number: 007227
Order: Reprimand
Disposition/Conduct: Communication, Candor toward the Tribunal, Responsibilities Regarding Nonlawyer Assistants, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13 & 25
On August 20, 2015, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) and 25(b) concerning misconduct by Respondent David J. Van Dyke, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 11, 2015.
At the hearing, Respondent Attorney Van Dyke was present and represented by Attorney Jennifer N. Ferguson, and the Board was represented by Bar Counsel J. Scott Davis. Complainant Attorney Leonard I. Sharon did not attend the hearing. Bar Counsel had earlier provided Attorney Sharon with a copy of the parties? proposed Report. In that regard, prior to the disciplinary proceeding the parties filed with the Clerk a proposed stipulated sanction Report for the Grievance Commission Panel?s review and consideration. That filing also included Respondent Van Dyke?s ?Affidavit of Consent? pursuant to M. Bar R. 25(b).
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent David J. Van Dyke, Esq. (Van Dyke) of Lewiston, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Van Dyke was admitted to the Maine Bar in 1991 and he is currently a partner with the law firm of Lynch & Van Dyke, P.A. in Lewiston, Maine
Sharon?s complaint concerns Van Dyke?s involvement and representation of his client, Lori Baillargeon, in her divorce litigation against her husband, Gary Baillargeon, in the Lewiston District Court. Sharon is Gary?s attorney in that family matter. In his initial response to Sharon?s complaint, Van Dyke asserted that Lori was a disabled, anxious victim of both domestic violence and a history of domination and intimidation by Gary (a police officer and a good friend of Sharon), and that she had experienced seizing and secreting of marital monies and assets by Gary throughout the marriage.
On March 24, 2014, a Preliminary Injunction automatically issued that ordered the parties not to ?sell, transfer, give away, encumber, conceal, or dispose of any property owned individually or jointly by the parties, unless it is done (a) with the written consent of both parties, (b) to purchase the necessities of life, (c) in the usual course of a business owned by either party, or (d) with the permission of the court.?
At that time, Lori and Gary held a Church Extension Plan account (?Church account?) jointly, in the amount of $33,338.09, and those funds had not been touched by either of them since being deposited therein upon receipt through an inheritance several years prior to the commencement of the parties? divorce.
On May 27, 2014, believing that she was acting under the advice of Van Dyke, Lori withdrew the total balance of the Church account and on June 11, 2014 she deposited those funds into an account at Rainbow Credit Union (?Rainbow account?), to which only Lori and her mother had access. Gary did not receive notice from Lori or give any consent allowing her to remove any or all of the funds from the Church account, nor did Lori seek any permission from the court to do so. At a contempt hearing on September 16, 2014, Lori testified that Van Dyke was informed and aware of her transfer and concealment of the Church account funds and resulting denial of Gary?s access to the funds. Van Dyke?s recollection is that he was only made aware of that transfer after it had occurred.
By issuance of its Order on Defendant?s Motion for Contempt of October 9, 2014, the District Court found that Lori?s creation of the Rainbow account had violated the Preliminary Injunction.
Van Dyke admits and agrees that he did advise Lori to secure all the funds in the Church account, but states that his recommendation for her to secure the funds was only to be undertaken by her in the following context:
In fact, however, while Lori did maintain a complete accounting, she failed to limit her spending to the necessities of life and failed to disclose the existence of the account to Gary. In addition, Van Dyke agrees that he failed to follow up with Lori on whether and how she had secured the account, that he failed to timely learn of the existence of that new Rainbow account, and that he did not take remedial steps after he learned of the existence of that new account to compel the monies to be returned to a joint account with Gary.
Van Dyke now agrees and admits that his advice to Lori was ambiguous and potentially confusing with respect to the proper means of ?securing? the account, and that his lack of follow-up led to Lori?s actual withdrawal of funds from the jointly held Church account and to her deposit of those funds in a new account to which Gary had no access.
Van Dyke further admits and agrees that those actions resulted in the court finding a violation of the terms of the Preliminary Injunction. As a result, he also admits his conduct violated M.R. Prof. Conduct 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions), M. R. Prof. Conduct 3.3(b)(a lawyer who knows that a person has engaged in fraudulent conduct shall take reasonable remedial measures) and 8.4(d)(engaging in conduct prejudicial to the administration of justice).
In addition, on June 12, 2014 Lori signed interrogatories under oath that stated that she and Gary had a joint account, the Church account, and that the account was still in existence with a balance of $33,904.69. When also asked therein to identify any financial accounts held ?solely in [her] name or jointly with any person or persons,? Lori signed under oath that she only had a checking and savings account with Gary, failing to mention or disclose the existence of the Rainbow account which was then held jointly in Lori?s and her mother?s name. Lori testified at her deposition and these omissions were innocent mistakes on her part.
In Van Dyke?s initial response to Sharon?s complaint concerning Lori?s false interrogatories, he claimed that he did not knowingly offer the false interrogatories because he had ?played no role whatsoever in the preparation of (Lori?s) answers to interrogatories,? which had been ?completed between (Lori) and (his) secretary?? He also stated therein that he ?does not routinely get intimately involved in a client?s production of civil discovery.?
With respect to Lori?s submission of false interrogatories, Van Dyke agrees and admits that he was required but failed to properly make reasonable efforts to ensure that his secretary?s conduct complied with his own professional obligations as a lawyer as required by M. R. Prof. Conduct 5.3(b)(attorney?s requirement to have remedial measures in place to ensure proper conduct by law firm?s non-lawyer employees). Furthermore, Van Dyke also agrees and admits that he was obligated but failed to take reasonable action, i.e., making sure his client promptly corrected the answers if the false information was innocently provided, or notifying the court and Sharon, if he was aware that Lori had engaged in fraudulent conduct by submission of her false interrogatories, such inaction by him, or his staff acting under his supervision, constitutes a violation of M. R. Prof. Conduct 3.3(b)(candor to a tribunal).
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. The panel notes that Van Dyke has taken responsibility for his violations of the following Maine Rules of Professional Conduct: 1.4(b)(explanation of a matter to the extent necessary to permit the client to make informed decisions); 3.3(b)(a lawyer who knows that a person has engaged in fraudulent conduct shall take remedial measures); 5.3(b)(making reasonable efforts to ensure non-lawyer staff?s conduct is compatible with the Maine Rules of Professional Conduct); and 8.4(d)(conduct prejudicial to the administration of justice).
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Van Dyke agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Van Dyke?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to David J. Van Dyke, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e) and 25.
Date: September 30, 2015
John C. Hunt, Esq., Acting Chair
Jennifer E. Hoopes, Esq., Panel Member
Marjorie M. Medd, Public Member
Board of Overseers of the Bar v. Donald L. Wharton, II
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Docket No.: BAR-15-6
Issued by: Maine Supreme Judicial Court
Date: September 30, 2015
Respondent: Donald L. Wharton, II
Bar Number: 003872
Order: Suspension
Disposition/Conduct: Reciprocal Suspension
This matter was initiated based upon the State of Connecticut's Statewide Grievance Committee's January 15, 2015 referral to Maine Bar Counsel of the "Amended Order" of December 8, 2014 in the Connecticut Superior Court matter of Disciplinary Counsel vs. Donald Wharton, II (DBD-CV 14-6016005).
Donald L. Wharton, II was admitted to the Maine Bar in 1988 but has practiced in Connecticut and remains registered in the State of Maine on an active nonresident basis.
The 2014 Connecticut Order references imposition of Wharton's interim suspension from practice in Connecticut, effective on December 8, 2014 until further order of the court, and the appointment of a Trustee to inventory his client files, secure his clients' fund account, take and review office mail, and to take such action as seems indicated to protect the interest of his clients, and provide a report and accounting to the court.
On May 19, 2015 the Board of Overseers of the Bar filed a Petition For Reciprocal Discipline under former M. Bar R. 7.3(h), based upon the Connecticut Order of Interim Suspension. On June 3, 2015, this Court ordered that Mr. Wharton inform it in writing of any claim by him that imposition of identical discipline by this Court would be unwarranted and the reasons therefore within 30 days of service of this Court's order upon him.
Bar Counsel has now provided this Court with copies of U.S. Postal Service electronic records that establish service of this Court's order of June 3, 2015 upon Mr. Wharton by certified mail, return receipt requested, on July 3, 2015. Mr. Wharton has failed to respond to this Court's order within the 30 days allotted to him by the order of June 3, 2015.
Accordingly, pursuant to M. Bar R. 26(e), it is hereby ordered that Donald L. Wharton, II is hereby suspended from the practice of law in the State of Maine for an indefinite period of time, effective immediately. In the event that Mr. Wharton is reinstated by the State of Connecticut, he may petition this Court for reinstatement pursuant to M. Bar R. 29(j).
DATED: September 30, 2015
Joseph M. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Diane M. Edgecomb, Esq.
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Docket No.: BAR#15-8
Issued by: Maine Supreme Judicial Court
Date: August 28, 2015
Respondent: Diane M. Edgecomb, Esq.
Bar Number: 007169
Order: Receiver Appointment
Disposition/Conduct: Appointment of Limited Receiver
M. Bar R. 32 (2015)
Upon Petition filed by the Board of Overseers, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Marsha Weeks Traill is appointed the Limited Receiver of Diane M. Edgecomb's law practice. Pursuant to this Order, Attorney Traill shall:
As a service to the bar, Attorney Traill has agreed to serve as this Receiver on a pro bono basis. She shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. Ms. Edgecomb shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Ms. Edgecomb, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Traill shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32(c).
Attorney Traill so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Furthermore, Attorney Traill may be engaged by any former client of Ms. Edgecomb provided that she informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client. Attorney Traill is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client's retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Traill?s appointment by this Order. Attorney Traill shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
Dated: August 28, 2015
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Marilyn E. Stavros
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Docket No.: BAR#15-10
Issued by: Maine Supreme Judicial Court
Date: October 1, 2015
Respondent: Marilyn E. Stavros
Bar Number: 002273
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32 (2015)
Upon Petition filed by the Board of Overseers, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Anita M. St. Onge is appointed Receiver for final closing of the law practice of Marilyn E. Stavros. Pursuant to this Order, Attorney St. Onge shall:
Pursuant to Bar Rule 32(b) the Receiver is authorized to arrange for the immediate confidential destruction of those flies which were closed during or before September 1989. Beginning one month after publication as required by paragraph 4, above, the Receiver is authorized to securely destroy those files, if any, closed through July 16, 2007. Collaborating with Bar Counsel, the Receiver shall develop a plan to securely store any remaining files for a period of 8 years.
As a service to the bar, Attorney St. Onge has agreed to serve as this Receiver on a pro bono basis. She shall submit a semi-annual written report to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. The Estate of Ms. Stavros shall be the first choice for source of payment for those disbursements. If insufficient assets are available from that source, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney St. Onge shall act as Receiver until discharged by the Court in accordance with M. Bar R 32(c).
Attorney St. Onge so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Attorney St. Onge is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest.
Attorney St. Onge shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, within one hundred twenty-five (125) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar.
Dated: October 1, 2015
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Basil L. Kellis
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Docket No.: CRT#15-198
Issued by: Maine Supreme Judicial Court
Date: June 23, 2015
Respondent: Basil L. Kellis
Bar Number: 001662
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 7.3(f)(l)
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 7.3(f), and by agreement the Court Orders:
As of this date, Charles L. Nickerson, Esq., is appointed the Receiver of the law practice of Basil L. Kellis of the firm Willard & Kellis, P. A. William J. Griset, Jr., Esq., is designated as successor to Attorney Nickerson if Attorney Nickerson no longer can serve as Receiver. With the cooperation of Attorney Kellis's legal assistant Carol Duckworth; Attorney Kellis's Personal Representative Michael Kellis; and Attorney Griset, Attorney Nickerson shall:
It is further Ordered Attorneys Griset and Nickerson shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 7.5(f)(5).
The Clerk is directed to incorporate this order on the docket by reference.
Dated: June 23, 2015
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Suzanne Dwyer-Jones, Esq.
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Docket No.: BAR-11-20
Issued by: Maine Supreme Judicial Court
Date: October 9, 2015
Respondent: Suzanne Dwyer-Jones, Esq.
Bar Number: 008638
Order: Order for Monitoring
Disposition/Conduct: Monitoring Order
This Order is incorporated by reference to the Decision and Order dated August 26, 2015.
As the parties have agreed and this Court has ordered, Attorney Dwyer-Jones shall submit her practice of law to the monitoring of Linda P. Maloy, Esq. of Biddeford, Maine for a period of three years unless otherwise ordered by the Court. The Court further ORDERS that:
Date: October 9, 2015
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Julie Osinski
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Docket No.: GCF#14-567
Issued by: Grievance Commission
Date: October 8, 2015
Respondent: Julie Osinski
Bar Number: 004669
Order: Reprimand
Disposition/Conduct: Bar Admission Disciplinary Matters, Violate or Attempt to violate any provision of either the MRPC or the Maine Bar Rules, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13
On September 29, 2015, with due notice, panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7) concerning misconduct by Respondent Julie Osinski. On July 9, 2015 Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Assistant Bar Counsel served that Disciplinary Petition on Ms. Osinski [Osinski] along with a Summons requiring her to answer the Petition within twenty days.
The Summons specifically warned Osinski that failure to file an answer to the Disciplinary Petition within 20 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Osinski did not answer the Board?s Petition. Likewise, Osinski did not appear at, nor participate in, the September 29, 2015 public disciplinary hearing.
Respondent Julie Osinski of Coral Springs, Florida, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Osinski was admitted to the Maine bar in 2010 and is currently subject to an administrative non-disciplinary suspension. The Board filed a grievance complaint against Osinski on March 3, 2015. The complaint alleged that Osinski had violated M. R. Prof. Conduct 8.4(a) and M. Bar R. 7.3(i)(2)(B) based upon her failure to file the required ?notification affidavit? attesting her compliance with M. Bar R. 7.3(i)(2)(A) in light of her administrative suspension from practice in Maine effective October 31, 2014.
On May 29, 2015, a panel of the Grievance Commission reviewed Osinski?s actions in this matter and found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Effective October 31, 2014 Osinski was administratively suspended by the Board due to her failure to comply with the annual registration requirement of M. Bar R. 6(a), and the continuing legal education credit hours requirement of M.Bar R. 12(a). Osinski failed to file the required notice affidavit following her administrative suspension that is required by M. Bar R. 7.3(i)(2)(B). Additionally, Osinski failed to respond to any of Bar Counsel?s letters of December 29, 2014, January 13, 2015, March 3, 2015 or March 25, 2015 notifying her of her obligation to file the required notice affidavit and requesting her comments and response to the grievance complaint. Osinski?s failure to respond to Bar Counsel violated M. R. Prof. Conduct 8.1(b).
Osinski violated Maine Bar Rule 7.3(i)(2)(A)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Osinski violated her duties to the legal system by failing to complete the annual registration requirements in 2014 and by failing to file the required notification affidavit once she was administratively suspended. Osinski?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Osinski's continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(B), is an aggravating circumstance.
Because the evidence supports a finding that Osinski did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Julie Osinski which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C).
Dated: October 8, 2015
James A. McKenna III, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Bradford Alan Borman
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Docket No.: GCF#14-552
Issued by: Grievance Commission
Date: October 8, 2015
Respondent: Bradford Alan Borman
Bar Number: 004118
Order: Reprimand
Disposition/Conduct: Bar Admission Disciplinary Matters, Violate or Attempt to violate any provision of either the MRPC or the Maine Bar Rules, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13
On September 29, 2015, with due notice, panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7) concerning misconduct by Respondent Bradford Alan Borman, Esq. On July 24, 2015 Bar Counsel J. Scott Davis filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Mr. Borman [Borman] along with a Summons requiring him to answer the Petition within twenty days.
The Summons specifically warned Borman that failure to file an answer to the Disciplinary Petition within 20 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Borman did not answer the Board?s Petition. Likewise, Borman did not appear at, nor participate in, the September 29, 2015 public disciplinary hearing.
Respondent Bradford Alan Borman of Albuquerque, New Mexico, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Borman was admitted to the Maine bar in 2007 and is currently subject to an administrative non-disciplinary suspension. The Board filed a grievance complaint against Borman on December 16, 2014, but Borman failed to file a response in defense of his actions. Such conduct violated M. R. Prof. Conduct 8.1(b).
During the course of the Board?s investigation Borman was afforded opportunities to submit a response(s) pursuant to then applicable M. Bar R. 7.1(d), but he failed to respond to Bar Counsel.
On May 20, 2015, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Borman had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
On October 30, 2014, Mr. Borman was administratively suspended. Borman then failed to file the affidavit certifying his compliance with Maine Bar Rule 7.3(i)(2)(B) to confirm that he had provided proper notice to former clients, opposing attorneys, and tribunals of his administrative suspension from practice in Maine, as required within 30 days after that suspension date.
Although Bar Counsel?s initial docketing letter of December 29, 2014, was not received or accepted by Borman, Borman did, later receive and sign the United States Postal Service?s green card on February 19, 2015, confirming his receipt of Bar Counsel?s ?second notice? and docketing letter dated February 13, 2015. To date, Borman has not filed an affidavit certifying compliance with the requirements of M. Bar R. 7.3(i)(2)(B).
Borman violated Maine Bar Rule 7.3(i)(2)(B) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Borman violated his duties to the legal system by failing to complete the annual registration requirements in 2014 and by failing to file the required notification affidavit once he was administratively suspended. Borman?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts.
Borman's continuing failure to file an affidavit complying with M. Bar R. 7.3(i)(2)(B), is an aggravating circumstance.
Because the evidence supports a finding that Borman did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Bradford Alan Borman which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C).
Dated: October 8, 2015
James A. McKenna III, Esq., Panel Chair
Mary A. Denison, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Andrews Bruce Campbell, Esq.
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Docket No.: BAR-14-8
Issued by: Maine Supreme Judicial Court
Date: October 27, 2015
Respondent: Andrews Bruce Campbell, Esq.
Bar Number: 001344
Order: Suspension
Disposition/Conduct: Scope and Effect, Admission, Disclosure and Misconduct, Indentifying Commencement, Continuation and Termination of Representation, Conflict of Interest, Duties to Former Clients, Lawyer as a Witness, Misconduct
M. Bar R. 13(g)(4)
This disciplinary matter concerns Grievance Complaints filed by Catherine A. Gero, Matthew Fleury, and Wanda Moulton against Attorney Andrews B. Campbell, Bar # 1344, of Bowdoinham, Maine. It is now before the Court by agreement as a result of an Information filed by the Board of Overseers of the Bar on April 16, 2015 pursuant to formerly applicable M. Bar R. 7.2(b)(1).
A hearing was conducted at the Capital Judicial Center in Augusta on October 27, 2015. At the hearing, the Board of Overseers was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Campbell was present and represented by Attorney Justin W. Andrus.
The parties stipulated to the following facts that led to the grievance filings and to a finding that those facts constitute Attorney Campbell's violation of specific portions of the then applicable Maine Bar Rules, and the Maine Rules of Professional Conduct. The parties also agreed to the form and terms of the sanction to be imposed by the Court based upon Campbells admitted violations of Rules 3.1(a), 3.2(f), 3.4(b), 3.4(c), 3.4(d), and 3.4(f) of the then applicable Maine Bar Rules, and Rules 1.8(c), 1.9(a), 1.9(c), 3.7, 8.4(a), and 8.4(d) of the Maine Rules of Professional Conduct. Prior to that hearing, Complainants Catherine A. Gero, Matthew Fleury, and Wanda Moulton were notified by Bar Counsel of the parties proposed stipulation and sanction. Ms. Gero was present for the hearing. Mr. Fleury, and Ms. Moulton were not present.
The parties agree and the Court finds that Attorney Campbells actions were in violation of the then applicable Maine Bar Rules as follows:
The parties agree and the Court finds that Attorney Campbells actions were in violation of the Maine Rules of Professional Conduct as follows:
The respective Rules are set forth as follows:
(Text of Rules effective until August 1, 2009.)
3.1 Scope and Effect
(a) This Code shall be binding upon attorneys as provided in Rule 1(a). Violation of these rules shall be deemed to constitute conduct "unworthy of an attorney" for purposes of 4 M.R.S. 851. Nothing in this Code is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.
3.2 Admission, Disclosure and Misconduct
(f) Other Misconduct. A lawyer shall not:
(1) directly or indirectly violate, circumvent, or subvert any provision of the Maine Bar Rules;
(2) engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4) engage in conduct that is prejudicial to the administration of justice.
3.4 Identifying Commencement, Continuation, and Termination of Representation
(b) Conflict of Interest: General Provisions.
(1) Basic Rule. A lawyer shall not commence or continue representation of a client if the representation would involve a conflict of interest, except as permitted by this rule. Representation would involve a conflict of interest if there is a substantial risk that the lawyer's representation of one client would be materially and adversely affected by the lawyer's duties to another current client, to a former client, or to a third person, or by the lawyer's own interests. (2) Informed Consent. Whether a client has given informed consent to representation, when required by this rule, shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.
(c) Conflict of Interest: Simultaneous Representation.
(1) Representation Prohibited. Notwithstanding the consent of each affected client, a lawyer may not simultaneously represent, or continue to represent, more than one client in the same matter or group of substantially related matters when the matter or matters are the subject of litigation or any other proceeding for dispute resolution and the clients are opposing parties.
(2) Representation Permitted With Consent. In all other cases, if a conflict of interest exists, a lawyer may not undertake or continue simultaneous representation of more than one client except with the informed consent of each affected client to representation of the others. Consent is required even though representation will not occur in the same matter or in substantially related matters. Simultaneous representation in the same matter or substantially related matters is undertaken subject to the following additional conditions:
(i) The lawyer must reasonably believe (A) that each client will be able to make adequately informed decisions, and (B) that a disinterested lawyer would conclude that the risk of inadequate representation is not substantial, considering any special circumstances affecting the lawyer's ability to provide adequate representation of each client, such as the fact that the clients may seek incompatible results or pursue mutually disadvantageous tactics, or that their adverse interests may outweigh their common interests.
(ii) While engaged in simultaneous representation, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.
(iii) The lawyer shall terminate the simultaneous representation upon request of any client involved, or if any condition described in this paragraph (2) can no longer be met, and upon withdrawal shall cease to represent any of the clients in the matter or matters on which simultaneous representation was undertaken or in any substantially related matter, except with the consent of any clients who will no longer be represented.
(d) Conflict of Interest: Successive Representation.
(1) Interests of Former Clients. (i) Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation.
(f) Conflict of Interest: Lawyer's Own Interest.
(1) General Rule. Except with the informed written consent of the client, a lawyer shall not commence representation if there is a substantial risk that any financial interest or significant personal relationship of the lawyer will materially and adversely affect the lawyer's representation of the client.
(2) Avoiding Adverse Interest.
(i) A lawyer shall not knowingly acquire a property or pecuniary interest adverse to a client, or enter into any business transaction with a client, unless:
(A) The transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted to the client in manner and terms which should have reasonably been understood by the client;
(B) The client is advised and given a reasonable opportunity to seek independent professional advice of counsel of the client's choice on the transaction; and
(C) The client consents in writing thereto.
(iv) A lawyer shall not prepare an instrument giving the lawyer or a parent, child, sibling, or spouse of the lawyer any substantial gift from a client, including a testamentary gift, except where the client is related to the done.
MAINE RULES OF PROFESSIONAL CONDUCT VIOLATED
1.8 Conflict-of-Interest: Current Clients: Specific Rules
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use confidences or secrets of a former client to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
3.7 Lawyer as Witness
(a) A lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(d) engage in conduct that is prejudicial to the administration of justice.
Based upon the findings and conclusions stated above, and by agreement, the Court imposes upon Attorney Campbell a six-month suspension from the practice of law. The suspension shall commence on November 1, 2015, and shall end without further action by the Court on May 1, 2016. The Court also reprimands Attorney Campbell for his violations of the Maine Bar Rules and the Maine Rules of Professional Conduct.
During the period of suspension, Attorney Campbell shall not appear before any tribunal and is prohibited from advising, consulting or meeting with any clients for the purpose of providing legal representation or advice. He may not practice law or take any actions that make it appear as though he is practicing law in any manner. Any responses to any pre-existing advertising will be forwarded to other counsel. Attorney Campbell shall not receive a referral fee for cases forwarded during the period of his suspension. He may not advise or consult with other attorneys, including those in his office, regarding any cases or the running of the office. The prohibition against consulting with attorneys does not include providing strictly historical or background information to any attorney handling a matter that Attorney Campbell was previously engaged in.
During the period of suspension, Attorney Campbell shall not possess or have access to any open client files and will either have them removed from his residence and office, or place them under the exclusive physical control of Justin Andrus, Esq. in such a manner that will prevent Attorney Campbell from having access to them during the period of suspension. All open client files will otherwise be returned directly to clients, to successor counsel, or to Justin Andrus, Esq. for safe keeping during the period of suspension.
All closed client files will be returned directly to clients, or placed under the exclusive physical control of Justin Andrus, Esq. for safe keeping in a manner that will prevent Attorney Campbell from having access to them during the period of suspension. All clients to whom the files are not returned shall be directed to contact Justin Andrus, Esq., or the Board of the Overseers of the Bar, to advise them of the location where their files can be located during the period of suspension.
Attorney Campbell shall also completely and timely comply with the provisions of M. Bar R. 31.
Finally, in the event a grievance complaint against Attorney Campbell is received by Bar Counsel after the date of this order and during the six month period of the suspension, Bar Counsel may seek permission of a Grievance Commission Panel to proceed with a new disciplinary matter directly before the Court pursuant to M. Bar R. 13(d)(6).
Dated: October 27, 2015
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1The numbering of the counts addressed in these findings are the numbers as assigned to the counts in the Information filed with this Court by the Board of Overseers of the Bar.
2In Estate of MacComb, 2015 ME 126, --- A.3d ---, the Law Court declined to reconsider an order that dismissed an appeal taken from the Probate Courts March 6, 2015 decision.
Board of Overseers of the Bar v. In Re Sherri A. Stone, Esq.
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Docket No.: BAR-15-9
Issued by: Maine Supreme Judicial Court
Date: October 26, 2015
Respondent: Sherri A. Stone, Esq.
Bar Number: 008274
Order: Reinstatement
Disposition/Conduct: Order of Reinstatement
M. Bar R. 4(i) & 29
Sherri A. Stone, Bar # 8274, has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Ms. Stone's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Ms. Stone's petition for reinstatement and determines that the petition is in order and may be granted without hearing.
Therefore ORDERED: Effective on the date of this Order, and subject to payment of any annual registration fees that may be due, Sherri A. Stone, Bar # 8274, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: October 26, 2015
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Peter H. Stewart
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Docket No.: GCF#14-575
Issued by: Grievance Commission
Date: November 3, 2015
Respondent: Peter H. Stewart
Bar Number: 002320
Order: Admonition
Disposition/Conduct: Disciplinary proceedings: other provisions, Bar admission and disciplinary matters
M. Bar R. 13(e)(7)(D)
On November 3, 2015, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Peter H. Stewart. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 31, 2015.
At the November 3, 2015 hearing, the Board was represented by Deputy Bar Counsel Aria Eee and Mr. Stewart appeared pro se. Prior to the hearing, the parties had submitted the stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration. Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Respondent Peter H. Stewart of Portland, Maine, was at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Mr. Stewart was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Mr. Stewart was admitted to the Maine Bar in 1980 and is currently administratively suspended from the practice of law. He works in a non-law related capacity outside the State of Maine, and has not been in active practice in several years. Mr. Stewart acknowledges that in this instance, he failed to comply with the Bar Rules and neglected to respond to the Board?s attempts to reach him.
As referenced above, effective October 30, 2014, the Board administratively suspended Mr. Stewart based upon his failure to comply with the annual registration and continuing legal education requirements mandated by (then applicable) M. Bar R. 6(a) and 12(a), respectively. Following that administrative suspension, Bar Counsel sent a December 29, 2014 reminder letter requesting that Mr. Stewart file the mandatory notice affidavit, as required by (then applicable) Maine Bar Rule 7.3(i)(2).
Due to Mr. Stewart?s inaction, Bar Counsel initiated the docketing of a sua sponte grievance complaint concerning Stewart?s failure to file the notice affidavit subsequent to his administrative suspension. Mr. Stewart did not respond to the grievance complaint. His failure in that regard was a violation of MRPC 8.1(b). As well, based upon Mr. Stewart?s failure to file the notice affidavit, his conduct violated then applicable Maine Bar Rule 7.3(i)(2)(A)(B).
Currently, Mr. Stewart remains administratively suspended from practice in Maine. He has recently filed the Notice Affidavit as now required by Maine Bar Rule 4(k)(8).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Of some import, no clients complained about Mr. Stewart and he has been out of the practice of law for several years. In fact, Mr. Stewart?s entire career was as a public servant and thus he never had any private clients or practice to close. Although the above-outlined conduct amounts to violations of those Rules, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. According to the ABA ?Annotated Standards for Imposing Lawyer Sanctions,? various factors should be assessed prior to imposing sanctions upon an attorney. Those factors include whether certain duties were violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances.
The first consideration under the ABA Standards is to evaluate the duty that was breached by the attorney. Mr. Stewart violated his duties as an officer of the court by failing to file the Affidavit required by then applicable Maine Bar Rule 7.3(i)(2). That Rule required such Affidavit filing within 30 days of Mr. Stewart?s suspension from the practice of law. Mr. Stewart was also required to respond to Bar Counsel?s subsequent inquiries about the lack of Affidavit filing. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also (former) M. Bar R. 7.1(e)(3)(B) and MRPC 8.1(b).
In mitigation, the Panel notes that the Board?s regulation history reflects that Mr. Stewart has no prior disciplinary record. At the stipulated hearing, Mr. Stewart explained that his work out of state and his failure to thereafter attend to his professional responsibilities resulted in his unintended Rule violations. At the hearing, he expressed regret for having neglected to follow through on his duties as an officer of the court.
In sum, the evidence of misconduct supports the Panel?s findings, and Mr. Stewart agrees he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Mr. Stewart. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Mr. Stewart.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Peter H. Stewart pursuant to M. Bar R. 13(e)(10)(B).
Date: November 3, 2015
Mary A. Denison, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Adam D. Chase
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Docket No.: GCF#14-554 & 15-061
Issued by: Grievance Commission
Date: October 28, 2015
Respondent: Adam D. Chase
Bar Number: 005124
Order: Reprimand
Disposition/Conduct: Notice to Clients, Adverse Parties and Other Counsel, Competence, Diligence, Communication, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13
On September 24, 2015, pursuant to due notice, Panel B of the Grievance Commission conducted a disciplinary hearing pursuant to Rule 13(e) of the Maine Bar Rules concerning the Respondent, Adam D. Chase, previously of Lisbon Falls, Maine, and currently residing in New York, New York. The hearing was open to the public. Panel members included Thomas H. Kelley, Esq., Chair; Andre James Hungerford, Esq.; and Kenneth Roberts, Public Member. The Board of Overseers (Board) was represented by Deputy Bar Counsel Aria Eee. Complainant Diane Freeman was present. Adam Chase was present and not represented by counsel.
The Board of Overseers of the Bar initiated this proceeding by filing a Disciplinary Petition, dated July 2, 2015. Adam Chase failed to file a response to the Disciplinary Petition, and he had also failed to respond to the earlier complaints from the Board and Diane Freeman that preceded the filing of the Disciplinary Petition.
The official record of this proceeding consists of the Disciplinary Petition and the Notice of Hearing. No other documents or exhibits were offered, but a court reporter was present and made a record of the hearing.
The Board?s Petition raised two grounds for seeking disciplinary action against Adam Chase. Count I arises from Mr. Chase?s failure to comply with the Board?s annual registration requirements. Count II arises from Mr. Chase?s representation of Diane Freeman and her siblings in a probate matter and related insurance matter.
Because Mr. Chase did not file a response to the Disciplinary Petition, the factual allegations and alleged misconduct are deemed admitted. Rules 13(e)(3) and 20(a), Me. Bar Rules. Thus the purpose of the Grievance Panel hearing is to determine the appropriate sanctions for Mr. Chase?s conduct. In furtherance of this goal the Panel took the testimony under oath of Diane Freeman and Adam Chase.
Adam Chase was administratively suspended from the practice of law on October 30, 2014, for failure to comply with the annual registration requirements of the Board of Overseers of the Bar. As a result of that non-disciplinary suspension Mr. Chase was required to submit an affidavit to the Board confirming that he had notified clients and others of the suspension or in the alternative that he had no clients with active cases to be notified. Me. Bar Rule 4(k).
By certified letter dated December 29, 2014, sent to the last address provided to the Board by Mr. Chase, the Board notified Adam Chase that a formal grievance complaint would be filed against him if he did not provide the required affidavit. Although the certified letter was returned to the Board ?unclaimed,? the Board also advised Mr. Chase by e-mail of his obligation to file the affidavit. Further, Mr. Chase appeared in person at the office of the Board of Overseers of the Bar on March 16, 2015, and told Bar Counsel?s assistant that he would take the necessary steps to be reinstated to the practice of law that week. The Disciplinary Petition alleged that as of July 2, 2015, Mr. Chase had not taken the steps necessary to be reinstated and had not filed the required affidavit. While this allegation is taken as admitted because Mr. Chase failed to file a response to the Petition, he also conceded at the September 24, 2015, hearing that he had failed to take these steps.
The Panel finds that Adam Chase violated Me. Bar Rule 4(k)(8) by failing to file the affidavit attesting that he had notified clients and other parties that he was suspended from the practice of law.
In late February 2015 Diane Freeman of Sabattus, Maine, filed a grievance with the Board against Adam Chase as a result of his handling of a legal matter she entrusted to him on behalf of herself and two of her siblings. An intra-family dispute arose after the death of Ms. Freeman?s father, and she sought Adam Chase?s assistance in recovering certain personal property through the Probate Court and in dealing with an insurance company regarding an annuity.
Diane Freeman testified that she had no experience dealing with attorneys when she retained Adam Chase in May 2013. Ms. Freeman was not sure how to find an attorney and sought Mr. Chase?s assistance because she was a friend of his mother. Mr. Chase assured Ms. Freeman that he could assist her. Ms. Freeman signed an engagement letter on May 22, 2013, and paid a fee of $1500 to Mr. Chase.1
It is clear from Ms. Freeman?s testimony that Mr. Chase performed some legal work for her. She testified that he prepared a document to have her appointed personal representative (presumably in connection with her father?s estate), and she attended a Probate Court hearing with Mr. Chase in December 2013. She and Mr. Chase met on at least a few occasions to discuss issues related to the probate and insurance matters. They also exchanged e-mail messages about the pending matters on various occasions.
The evidence also supports the following conclusions: Mr. Chase did not move these matters along promptly, did not bring the insurance matter to a resolution,2 and did not adequately communicate with Ms. Freeman about the status of her cases. Further, Mr. Chase never notified Ms. Freeman that he had been suspended from the practice of law in October 2014. Ultimately, Ms. Freeman retained a different attorney, at additional expense to her and her siblings, to complete the services she had hired Mr. Chase to perform.
Adam Chase testified that he had not seen the Disciplinary Petition until the morning of September 24, 2015, when he arrived at the hearing. He said that he had only learned of the hearing the day before by a phone call from his mother, and he had driven to Maine from New York City, where he had been recently living, that evening. Because the burden was on Mr. Chase to keep the Board informed of his mailing address, and because he was apparently receiving at least some mail from the Board in care of his mother, the Panel concluded it was appropriate to continue with the hearing without further delay.
Mr. Chase testified that he was first admitted to the bar in January 2013, just a few months before Ms. Freeman retained him. Mr. Chase was initially associated with an attorney in Topsham, Maine, but that business relationship did not work out, and he became a solo practitioner. Mr. Chase further testified that he was handling primarily criminal and family law matters and that he found himself struggling financially. He began working part-time in a non-legal position to make ends meet. By the time Mr. Chase was administratively suspended in October 2014, Diane Freeman was his only client with an active case. At some point during this period Mr. Chase decided to leave the practice of law, at least temporarily. Mr. Chase testified that he was not certain at this time whether he would return to the legal profession.
Mr. Chase?s primary objection to the Disciplinary Petition centered on paragraphs 12 and 13 of Count II, which refer to Ms. Freeman?s complaint about ?Chase?s complete desertion and neglect of her legal matter? and her assertion that she received ?no legal services from Chase.? Mr. Chase acknowledged that he had made mistakes in handling Diane Freeman?s legal matters, but he stated that he had provided significant legal services to her and that it was unfair to say that he had provided no services or deserted her legal matter.
Both Ms. Freeman and Mr. Chase testified about a Fee Arbitration panel that had been convened in May 2015 as a result of Ms. Freemans? complaint about the $1500 fee. Because she had not received the services she expected and had to retain another attorney, Ms. Freeman believed that she should receive a refund of at least some of the fee paid to Mr. Chase. She testified that Mr. Chase had claimed he had $8000 in legal fees and expenses and that she decided to withdraw her grievance about fees because she thought he might otherwise seek additional fees from her. Mr. Chase testified, on the other hand, that he had mentioned the $8000 not because he wanted Ms. Freeman to pay him more but because he was trying to show that he had done significant legal work on her behalf.
The Panel finds it understandable that Ms. Freeman, someone with no experience in dealing with attorneys, might conclude that she had received no services of value from Mr. Chase. It also seems clear to the Panel, however, that Mr. Chase provided some services to Diane Freeman. He commenced a probate action for her and moved it along to at least one hearing. He incurred filing fees and other expenses of at least a few hundred dollars. He met with Ms. Freeman on at least few occasions to discuss the pending matters, typically for an hour or so. Mr. Chase testified that his time records reflected over 48 hours of time spent on Ms. Freeman?s legal matters.
The Panel also concludes, however, based on the testimony presented, that Mr. Chase did not pursue these legal matters with the competence and diligence that Ms. Freeman had a right to expect. It is also clear that Mr. Chase did not keep Ms. Freeman adequately informed of the status of the pending matters and did not promptly respond to reasonable requests for information.
Based on the foregoing review of Count II of the Petition, the Panel finds that Adam Chase violated Me. Bar Rule 4(k)(1) by failing to notify Diane Freeman that he had been administratively suspended from the practice of law. The Panel further finds that Adam Chase violated Rules 1.1, 1.3, and 1.4 of the Maine Rules of Professional Conduct by failing to pursue Diane Freeman?s legal matters with the competence and diligence Ms. Freeman had a right to expect and by failing to communicate adequately with her. The Panel further finds that this conduct was prejudicial to the administration of justice in violation of Rule 8.4(d), Me. R.P.C.
With the regard to the Board?s contentions that Mr. Chase charged unreasonable legal fees or failed to safeguard Diane Freeman?s files or other property in violation of Rules 1.5. and 1.15, Me. R.P.C., the Panel finds that the allegations of the Petition, considered in conjunction with the testimony at the hearing, did not provide sufficient detail to support findings of violations of those rules.
The Panel concludes that Adam Chase engaged in misconduct under the specific provisions of the Maine Bar Rules and the Maine Rules of Professional Conduct cited above. The Panel further finds that the misconduct is substantial and not minor. Bar Counsel urges the Panel to find that the misconduct is sufficiently serious to find probable cause for suspension (other than administrative suspension for failure to comply with registration procedures) or disbarment and to direct Bar Counsel to file an Information pursuant to Rule 13(g), Me. Bar Rules.
The Panel would be inclined to find probable cause for suspension or disbarment if it had found that Mr. Chase accepted money from Diane Freeman and provided no legal services. The evidence shows, however, that Mr. Chase spent considerable time and funds on Ms. Freeman?s cases. The evidence also shows that Mr. Chase, a recently admitted member of the bar at the time Ms. Freeman retained him, eventually found himself coping with a floundering law practice and financial straits. These circumstances undoubtedly contributed to the mistakes of judgment Mr. Chase made in the course of representing Ms. Freeman. The Panel cautions Mr. Chase to develop a viable business plan or find an appropriate support structure if he decides to return to the practice of law.
While Mr. Chase?s misconduct warrants disciplinary action, the Panel concludes that a referral for possible suspension or disbarment would be too harsh under the circumstances. The Panel determines that a reprimand is an appropriate sanction and hereby issues this public reprimand to Adam Chase.
Dated: October 28, 2015
Thomas. H. Kelley, Esq., Panel Chair
Andre James Hungerford, Esq., Panel Member
Kenneth L. Roberts, Public Member
1The Disciplinary Petition alleged that the engagement letter was ?quite vague,? but the Panel was unable to evaluate this assertion because the letter was not introduced into evidence.
2There was some disagreement about whether the probate matter had been completed while Mr. Chase was involved in the case.
Board of Overseers of the Bar v. Raymond L. Williams, Esq.
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Docket No.: GCF#15-050
Issued by: Grievance Commission
Date: December 7, 2015
Respondent: Raymond L. Williams, Esq.
Bar Number: 000992
Order: Reprimand
Disposition/Conduct: Competence, Scope of Representation of Client, Diligence, Communication with Client, Truthfulness in Statements to Others, Conduct involving misrepresentations and being Prejudicial to the Administration of Justice
M. Bar R. 13(e) & 25
On December 7, 2015 with due notice and pursuant to Maine Bar Rule (13)(e), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Raymond L. Williams, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by filing a Disciplinary Petition on June 2, 2015.
At the hearing, Attorney Williams appeared and was represented by Attorney Marvin H. Glazier, and the Board was represented by Bar Counsel J. Scott Davis. Attorney Williams' former client, Kenneth Ulrich, appeared telephonically at that hearing and confirmed his agreement with the parties' proposed Report in this matter.
Having reviewed the proposed stipulated findings as presented by counsel, the Panel makes the following disposition:
Respondent Raymond L. Williams, Esq. of Ellsworth, County of Hancock, State of Maine is and was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
On or about February 13, 2015 Attorney Williams' filed a self-report to the Board. As a result, the Board and Bar Counsel initiated this grievance matter pursuant to applicable M. Bar R. 7.1(b)(d). Bar Counsel so notified Attorney Williams by letter dated February 18, 2015.
During the course of Bar Counsel's investigation and in response to Bar Counsel's request(s), Attorney Williams properly responded and provided Bar Counsel with additional information and documents that supported Attorney Williams' self-report claim that he had engaged in professional misconduct in violation of the Maine Rules of Professional Conduct.
Bar Counsel also contacted and interviewed the affected clients and opposing counsel involved in the underlying litigation matter.
As a result, this complaint matter was properly investigated pursuant to applicable M. Bar R. 7.1(b).
The substance of that underlying representation matter involves Attorney Williams' mishandling of a real estate (right of way/easement) matter for his two clients, Kenneth and Coleen Ulrich from Kentucky.
Attorney Williams was hired by the Ulrichs in February 2013 for a fairly direct and succinct purpose: to preserve their property rights regarding real estate in Penobscot, Maine so as to prevent an apparent trespasser - Kathleen Henderson - from acquiring a right of way or easement across their property. In fact, however, as reported by Williams, he failed to properly do so.
Instead, when the Ulrichs became defendants in an action brought by Henderson against them in the Hancock County Superior Court, Kathleen Henderson v. Kenneth Ulrich, Jr. et al, Docket No. RE-13-46, Williams failed to properly so notify and inform the Ulrichs.
In fact, Williams failed to have little, if any, appropriate contact with the Ulrichs concerning that litigation against them.
In addition, Williams engaged in settlement discussions and reached a purported settlement agreement with Henderson's attorney, without first properly communicating with and obtaining the Ulrichs' actual approval and agreement thereto.
Furthermore, even after having reached that supposed litigation settlement with Henderson's attorney, Williams was non-responsive to that attorney. Williams' inaction in that regard resulted in that opposing counsel's filing various pleadings with the court to effectuate and enforce that settlement, e.g. a Motion to Enforce Settlement Agreement with supporting thorough Affidavit that were so filed in August of 2014.
On or about February 11, 2015 Henderson's attorney brought Attorney Williams' misconduct to the attention of a law firm partner of Williams, from which Attorney Williams' self-report filing letter of February 13, 2015 soon followed. That law firm partner then took over responsibility for handling the Ulrichs' litigation.
As a result, on June 22, 2015 a fully executed Settlement Agreement and Release was properly filed with the court in the Henderson v. Ulrich matter. In addition, the Ulrichs have been made whole financially by the efforts of Attorney Williams and that law firm partner.
On or about June 23, 2015 a panel of the Grievance Commission reviewed Attorney Williams' actions in this matter. Based upon that review, that panel found probable cause to believe that Williams had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Based on the facts set forth above, the Board alleges and Attorney Williams admits that he engaged in conduct that violated the applicable Maine Rules of Professional Conduct, specifically Rules 1.1 (competence); 1.2(a) (scope of representation of client); 1.3 (diligence); l.4(a) (communication with client); 4.1(a) (truthfulness in statements to others) ; and 8.4 (a)(c)(d) (conduct involving misrepresentations and being prejudicial to the administration of justice).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. Accordingly, based upon Attorney William's improper actions and lack of appropriate professional judgment, the Panel finds that he violated the above-referenced Maine Rules of Professional Conduct. The Panel notes that Attorney Williams has taken responsibility for his behavior. He has acknowledged the wrongfulness of his actions and expressed remorse or his violations of those particular portions of the Maine Rules of Professional Conduct. Bar Counsel has confirmed to the Panel that Attorney Williams has no prior disciplinary record on file with the Board, although he did receive a private reprimand in 1984.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Williams agrees that he did in fact violate the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Williams' separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 13(e) & 25, the Panel hereby issues that Reprimand upon Raymond L. Williams, Esq.
Date: December 7, 2015
James A. McKenna, III, Esq., Panel Chair
Carolyn A. Silsby, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Lawrence C. Winger, Esq.
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Docket No.: BAR#15-12
Issued by: Maine Supreme Judicial Court
Date: December 28, 2015
Respondent: Lawrence C. Winger, Esq.
Bar Number: 002101
Order: Suspension
Disposition/Conduct: Criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects; conduct prejudicial to the administration of justice
M. Bar R. 13(g) & 25
This disciplinary matter concerns a grievance complaint initiated by Bar Counsel in August 2014 against Defendant Lawrence C. Winger, Esq. of Portland, Maine. It is now before the Court as a result of a stipulated disciplinary petition filed by Bar Counsel and Attorney Winger's conditional admission and affidavit of consent under M. Bar R. 25.
A hearing was conducted at the Capital Judicial Center in Augusta on December 28, 2015. At the hearing the Board of Overseers was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Winger was present with his counsel, Neale A. Duffett, Esq.
By the parties' filings, the following facts have been stipulated and lead to a finding that those facts constitute Attorney Winger's violation of specific portions of the Maine Rules of Professional Conduct:
Based upon the above admitted serious professional misconduct by Attorney Winger, the Court adopts counsel's agreed proposal and imposes upon him a one year suspension from the practice of law in Maine, with all of that period being suspended except for a 90-day period of actual suspension. His suspension from practice shall be followed by a one year period of supervision of his practice by Attorney David Turesky of Portland as well as counseling by a licensed counselor approved by his probation officer. Attorney Winger shall be required to have Attorney Turesky and his counselor file written reports on a quarterly basis with Bar Counsel concerning their respective supervision and counseling of Attorney Winger.
Attorney Winger shall also completely and timely comply with the notification requirements of M. Bar R. 31, such that all clients, opposing counselor parties, courts and other tribunals are each properly informed and notified of his suspension from practice. In the event a grievance complaint against Attorney Winger is received by Bar Counsel after the date of this Decision and Order up and until the termination date of that suspended suspension, or any information is received or obtained by Bar Counsel that confirms Attorney Winger has failed to comply with any portion of this Decision and Order, Bar Counsel may seek permission of a Grievance Commission Panel Chair to proceed with a new disciplinary matter directly before the Court pursuant to M. Bar R. 13(d)(6), without any hearing being required to occur under M. Bar R. 13(e).
Therefore, Attorney Lawrence Winger is hereby ORDERED suspended from the practice of law commencing on January 1, 2016 through December 31, 2016, with all of that period of suspension being suspended except for 90 days, such that he shall be actually suspended from practice during the period of January 1, 2016 through March 31, 2016.
Dated: December 28, 2015
Joseph M. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. William L. Dawson, Jr., Esq.
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Docket No.: BAR#13-23
Issued by: Maine Supreme Judicial Court
Date: September 28, 2015
Respondent: William L. Dawson, Jr., Esq.
Bar Number: 006887
Order: Order and Decision
Disposition/Conduct: Order to Continue Stay of Proceedings
M. BAR R. 13(g)
The Court previously issued an order dated February 23, 2015, which continued this disciplinary proceeding until July 1, 2015.
Defendant William L. Dawson, Jr. has moved to continue the stay of this disciplinary proceeding until the conclusion of the state?s prosecution of its November 13, 2014 indictment against him for four counts that are related to the misconduct allegations in the Board of Overseers of the Bar?s Information. The request to continue the stay is based upon the Defendant?s assertion that his Fifth Amendment right against self-incrimination prevent him from properly answering or defending against the Board?s Information. The Board of Overseers of the Bar, by and through Bar Counsel, has objected to the continued stay. As a result, for good cause shown, it is HEREBY ORDERED as follows:
Date: September 28, 2015
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. David Levesque, Esq.
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Docket No.: GCF#14-515
Issued by: Grievance Commission
Date: January 15, 2016
Respondent: David Levesque, Esq.
Bar Number: 008640
Order: Admonition
Disposition/Conduct: Candor toward the Tribunal
M. Bar R. 13(e)(7)(D)
On January 15, 2016, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, David Levesque. The disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 25, 2015.
At the January 15, 2016 stipulated hearing, the Board was represented by Deputy Bar Counsel Aria Eee and Attorney Levesque appeared with his counsel, James M. Bowie, Esq. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. Also prior to that time, Complainants Judy A. S. Metcalf, Esq. and Ryan P. Dumais, Esq. were notified of the hearing date and provided with a copy of the proposed sanction report. Attorneys Metcalf and Dumais did not attend the January 15 stipulated hearing.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Respondent David Levesque of Newcastle, Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Levesque was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Based upon the stipulations by the parties, the Panel makes the following findings:
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Although the above-outlined conduct amounts to a violation of those Rules, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. According to the ABA "Annotated Standards for Imposing Lawyer Sanctions," various factors should be assessed prior to imposing sanctions upon an attorney. Those factors include whether certain duties were violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances.
The first consideration under the ABA Standards is to evaluate the duty that was breached by the attorney. Attorney Levesque sought payment of specified attorneys fees and costs from the Probate Court, but failed to advise the court of separate existing contingency fee agreements with his clients. Interpreting former Maine Bar Rule 8(c), the precursor to current MRPC 3.3, the Professional Ethics Commission (PEC) concluded that absent an expression of legislative intent to the contrary, it was proper for an attorney to enter into a contingency fee agreement with a client in matters where statutes provided for the awarding of attorney's fees. However, the PEC also expressed its opinion that: "... the existence of a contingent fee agreement must be disclosed to the Court or other authority determining the statutory award of fees. In making its determination regarding fees, the Court is entitled to be informed as to what the parties themselves considered to be reasonable." (See PEC Advisory Opinion #81, November 4, 1987) Attorney Levesque's unfamiliarity with the requirements of PEC Advisory Opinion #81 resulted in his failure to disclose the existence of the contingency fee agreements, and a violation of his duty of candor to the court under MRPC Rule 3.3(a).In mitigation, the Panel notes that the Board's regulation history reflects that Attorney Levesque has no prior disciplinary record. At the stipulated hearing, Attorney Levesque explained that his failure to advise the Probate Court of the contingency fee agreement was an unintended violation of the MRPC. At the hearing, he expressed regret for having neglected to follow through on his duties as an officer of the court.
In sum, the evidence of misconduct supports the Panel's findings, and Attorney Levesque agrees he did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Levesque. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Levesque.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon David Levesque, Esq. pursuant to M. Bar R. 13(e)(10)(B).
Date: January 15, 2016
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
John C. Alfano, Public Member
1The Confidential Addendum to the decision indicates that the panel would likely find the overall fee structure as reasonable when applied to the Trust, the Church and David.
Board of Overseers of the Bar v. Seth T. Carey, Esq.
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Docket No.: GCF#14-529
Issued by: Grievance Commission
Date: February 2, 2016
Respondent: Seth T. Carey, Esq.
Bar Number: 009970
Order: Report of Findings and Order
Disposition/Conduct: (Superseded by 11/21/2016 Court Order)
M. Bar R. 7.1(e)(7)
Panel C of the Grievance Commission conducted a public hearing pursuant to Bar Rule 13(e)(7) concerning alleged misconduct by Respondent Seth T. Carey, Esq. (Respondent or Attorney Carey). Trial was held over four full days ? September 17, September 18, October 19 and November 20, 2015.
The disciplinary petition was brought by Petitioner Board of Overseers of the Bar (Petitioner or Board) and is dated June 19, 2015, prompted by a complaint filed by State Court Magistrate Maria A. Woodman dated December 2, 2014. The petition asserts violations of Maine Rules of Professional Conduct 1.1, 1.3, 1.4(a), 1.7(a), 3.1(a), 3.3(a), 3.3(c), 3.4(c), 4.1(a), 8.4(a), 8.4(b), 8.4(c), and 8.4(d), to which the Respondent filed separate answers dated July 27 and August 31, 2015, and a supplemental answer dated August 31, 2015.
Numerous motions were filed by the parties prior to the commencement of hearings and during the intervals between hearings. All were resolved by the panel chair, pursuant to the Maine Bar Rules. Motion practice in other Grievance Commission proceedings has been limited and nuanced. In this case, it has been extensive and sweeping. Many were sent by e-mail late at night and on weekends, directed to the Clerk of the Grievance Commission but copied directly to the panel chair and requesting immediate action.
The Board was represented by Bar Counsel J. Scott Davis. Respondent appeared on his own behalf along with co-counsel Thomas S. Carey, Esq. No objections were raised to the composition of the panel. Board Exhibits 1 through 28 were marked and admitted. Respondent Exhibits 1 through 49 were marked and provided to the panel. Testimony was received from the Respondent, Judge Nancy D. Carlson, Rumford District Court Deputy Clerk Jennifer Merrill, Judge Susan E. Oram, Jessica Houston, Judicial Branch Deputy Marshall Alex James, Justice Lance Walker, Rumford District Court Clerk Darlene Richards, Farmington District Court Deputy Clerk Lauri Pratt, Detective Peter Casey, Rumford Police Sergeant Tracey Higley, Jr., Rumford Police Chief Stacy Carter, Assistant District Attorney Richard Beauchesne, Assistant District Attorney Alexandra Winter, Darrell Houston, Attorney Jennifer Kreckel, and Magistrate Maria A. Woodman. All witnesses other than the Respondent appeared pursuant to subpoena.
The gravamen of Petitioner?s case was the alleged incompetence of Attorney Carey. Petitioner requested that the panel refer the case for further proceedings before a single justice of the Maine Supreme Judicial Court where the Board could press for disbarment or a period of suspension. At the conclusion of the Board?s case, the Respondent moved for judgment as a matter of law, asserting that the Petitioner failed to present sufficient evidence justifying the relief it sought. Respondent argued that the evidence justified no more than a reprimand ? the most severe final disposition a panel could impose.
Because the motion for judgment as a matter of law was a dispositive motion, it was considered in private by the panel. After deliberation, a majority of the panel concluded that all of the evidence presented by Petitioner would not justify further proceedings that could result in disbarment or a period of suspension. The parties were advised of the panel?s conclusion.
Pursuant to Maine Bar Rule 13(e)(8), Bar Counsel advised the panel of its duty to consider the statement from the Board Clerk as to the existence or absence of any sanction record in determining the extent of discipline if the panel found any violation of the Maine Rules of Professional Conduct. Bar Counsel stated, and the panel chair ruled, that the panel could not be informed of any disciplinary history unless and until it made a finding of misconduct by the Respondent. The panel deliberated further in private.
After careful consideration, a majority of the panel concluded that Attorney Carey violated certain provisions of the Maine Rules of Professional Conduct, but that there was no possible disciplinary history of the Respondent which, in combination with the Petitioner?s evidence in this proceeding, would convince the panel to refer the matter to a single justice for further disciplinary proceedings. Our conclusion is both compelled and constrained by the evidence.
Respondent was admitted to the Maine bar in 2006. He practiced in Oxford County until February 2009 when he was suspended for six months and a day by Justice Mead. From early 2009 until 2013, Respondent lived in Florida. For the past two years, he returned to private practice with offices in Rumford. Attorney Carey has done all of the work that a rural Maine lawyer is called upon to perform: criminal defense, family law and domestic relations, bankruptcy, worker?s compensation, Social Security, real estate and land transactions, simple wills, and other general civil litigation. Based on his testimony and pleadings in this case, Attorney Carey appears to view himself very much as Atticus Finch in To Kill a Mockingbird. He asserted that he advocates for poor people as their lives intersect with the law. He gives them caring and vigorous representation for fees that are within their means. He stoutly maintained that his work is competent. Attorney Carey testified that he has a ?winning record? in both criminal and civil cases, and that he has a steady stream of clients who want and need his services.
The Board presented a more troubled narrative of Respondent?s performance since resuming his Maine practice in 2013. Judge Carlson, Judge Oram, Justice Walker and Magistrate Woodman described Attorney Carey in proceedings before them as a lawyer who knows where he wants to go, but whose approach is to substitute volume and bombast for skill. Each of them testified that the Respondent was either unfamiliar or uncomfortable with criminal and civil procedure and with the rules of evidence. While Attorney Carey came to court prepared with notes and outlines, he was unable to deviate from his prepared script when testimony did not go as expected. They recounted cases where opposing counsel?s objections were sustained but Attorney Carey persisted in the same line of questioning either because he did not understand the court?s ruling or because he did not know what else to do. Hearings that should have taken one hour would drag on for two or more while the Respondent groped for direction. Especially in family law matters, Attorney Carey?s paperwork was often incomplete or erroneous. Justice Walker, recalling his time on the District Court bench, observed that there ?was a fair piece of real estate between the lower end of competence and [Attorney Carey?s] performance,? and that he was ?close to the bottom of the barrel? of all lawyers he had seen. There was little, if anything, in Respondent?s performance of his own defense at the hearing to suggest that the testimony of these members of the bench was anything but accurate.
Judicial Branch Deputy Marshal James testified that the Respondent was belligerent and disruptive at the Lewiston District Court when asked to remove his belt to pass through the metal detector. Rumford Police Chief Carter and Sergeant Higley of the Rumford Police Department testified that Attorney Carey was so aggressive in pursuing extra-judicial discovery that the Chief refused him entrance to the Rumford Police Department and Sergeant Higley requested and obtained a harassment notice against him pursuant to 17-A M.R.S.A. § 506-A.
Clerk Richards and Deputy Clerk Merrill and Pratt recounted multiple instances where Attorney Carey made demands on the clerks? offices that were beyond its authority and ability to perform. After several judges and magistrates recused themselves when they became involved in the present disciplinary proceeding, Attorney Carey insisted to the clerks that the judicial officers could not do so because it affected his clients? cases, and that he would ?wait all day? until the presiding judges/magistrates changed their minds.
ADA Beauchesne and ADA Winter described criminal cases where the Respondent returned repeatedly to arguments that he had been instructed by the bench to cease. In another case, Attorney Carey appeared to ?plea bargain? with the judge during a Criminal Rule 11 sentencing hearing. The prosecutors stated that the Respondent?s approach to criminal litigation was unfair to clients who were unable to distinguish between professional skill and his flamboyant style.
Attorney Carey entered a general appearance on behalf of Jessica Houston in her divorce from Darrell Houston in 2014. Both parties testified that he was casual and inattentive in concluding the case. Attorney Carey did not provide a copy of the proposed divorce judgment to Mr. Houston, which turned out to contain multiple errors. He did not assist Ms. Houston in completing the child support paperwork requested by the magistrate, although he repeatedly urged her to do so. Believing that he was not still representing Ms. Houston, Attorney Carey failed to appear for a status conference scheduled to address that deficiency for which he was sanctioned by the magistrate in the amount of $500.
Attorney Jennifer Kreckel testified that the Respondent was a well-meaning and hard-working lawyer who often floundered and appeared frequently flustered in her encounters with him. In addition to corroborating the empirical observations made by others, she testified that she observed Attorney Carey to be late on multiple occasions for hearings, conferences and appointments. She stated that she was not qualified to express an opinion regarding his competence, but would let the facts speak for themselves. In response to a question from the panel, she indicated that Attorney Carey could use help and guidance in dealing with clients.
Magistrate Woodman testified that she was deeply concerned that the Respondent presented a serious risk to the public and to the profession in his litigation practice. She stated that she fully shared Justice Walker?s assessment of Attorney Carey. Based on her observations of Attorney Carey both before his suspension by Justice Mead and after his reinstatement, she saw no demonstrated improvement in his ability to present a case in court.
The panel had an extended opportunity to observe Attorney Carey defending himself in this proceeding. His questions on cross examination were frequently confused and confusing. His repeated attacks on witnesses? motives and competence were unwelcome and ineffective. They reinforced the allegations of the Petitioner.
We have no doubt ? and Attorney Carey admitted in response to questions from the panel at the conclusion of Petitioner?s case ? that his courtroom performances in the examples adduced by Bar Counsel were deficient and in violation of the Maine Rules of Professional Conduct, specifically Rule 1.1 which provides, ?A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.? He is deserving of a Public Reprimand, which we hereby issue.
Our conclusion to impose a reprimand for demonstrated and admitted incompetence in violation of Rule 1.1 of the Maine Rules of Professional Conduct is guided in part by the decisions of the Court and other Grievance Commission panels in other proceedings. We look to those cases to analyze Attorney Carey?s actions in the light of the discipline they imposed. The Board neither alleged nor proved that Attorney Carey acted without his clients? consent, unlike the recent reprimand in Board v. Williams (GCF#15-050, December 7, 2015), where the respondent engaged in settlement discussions and reached a settlement agreement with the opposing party without first communicating with and obtaining his clients? approval and agreement. Attorney Carey has not been convicted of any crime, unlike the recent 90-day suspension imposed in Board v. Winger (BAR #15-12, December 28, 2015), where the respondent had been convicted of possessing sexually explicit material of a minor. There is no suggestion that Attorney Carey engaged in self-dealing, unlike the recent six-month suspension imposed in Board v. Campbell (BAR#14-8, October 27, 2015), where the respondent both drafted and prosecuted wills granting him substantial testamentary gifts of real and personal property, and prepared deeds conveying real estate to him.
The purpose of bar disciplinary proceedings is not punishment but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge their professional duties properly. The panel believes that expert testimony was necessary to permit a conclusion that Attorney Carey?s violations of the Maine Rules of Professional Conduct transcend the instances of his conduct presented to us such as to expose him to a formal suspension or disbarment. There was no evidence or testimony about the Respondent?s abilities and performance other than in an adversarial context. There are many lawyers who never set foot in court and who have successful and rewarding careers doing estate planning, real estate, tax or transactional work. All of the judicial/attorney witnesses testified that the Respondent was competent and effective in other cases. Nonetheless, the goal of protection of the public requires that we craft appropriate discipline and restrictions sufficient to protect the public.
Maine Bar Rule 21(b)(4) permits a panel of the Grievance Commission to impose probation and conditions of probation where ?there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised.? Pursuant to Maine Bar Rule 21(b)(4), the panel imposes a two-year period of probation, commencing this date, on Attorney Seth T. Carey upon the following terms and conditions:
Had the Panel been confronted with the same facts adduced at this hearing prior to the adoption in 2015 of the amended Bar Rules, specifically, Maine Bar Rules 13 (e)(10)(D) and 21(b)(4), a majority of the panel would have concurred in the Chair?s dissent and determined that this matter should be presented to a single justice. However, in light of the expanded choices available to Grievance Commission panels under the amended Rules and the ability to fashion a period of probation, it appears appropriate to impose the period and terms of probation set forth above.
Date: January 29, 2016
ROBERT S. HARK, Esq.
JUD KNOX, Public Member
I concur that Attorney Carey should not engage in litigation and that the conditions of probation imposed by the majority are wise and appropriate. I respectfully dissent because I believe that the case should have been presented to a Single Justice.
The testimony of Magistrate Woodman and Justice Walker, coupled with the Respondent?s conduct during the arc of this case, persuade me that Attorney Carey?s incompetence is of such depth to justify the further discipline that could be imposed by the Court. Two disparate examples of Attorney Carey?s conduct stand out. The first was his insulting and ineffective ad hominem attacks on witnesses that persisted despite repeated rulings from the chair that they had no relevance to the issues presented in this case. The second was a steady flow of bizarre pleadings and pre-trial motions that betrayed a profound disregard of Due Process and applicable procedures under the Maine Bar Rules. By itself, the Respondent?s defense of this disciplinary petition justifies a referral to a Single Justice.
Date: January 29, 2016
PETER C. FESSENDEN, Esq.
Panel Chair
Board of Overseers of the Bar v. Cynthia J. Dresden, Esq.
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Docket No.: BAR#16-5
Issued by: Maine Supreme Judicial Court
Date: February 2, 2016
Respondent: Cynthia J. Dresden, Esq.
Bar Number: 004443
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Jane Makela, Esq., is appointed the Receiver of the law practice of Cynthia J. Dresden. Attorney Makela shall:
It is further Ordered Attorney Makela shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: February 2, 2016
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert M. Neault, Esq.
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Docket No.: BAR#15-16
Issued by: Maine Supreme Judicial Court
Date: January 5, 2016
Respondent: Robert M. Neault, Esq.
Bar Number: 006874
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Thomas F. Smith, Esq., is appointed the Receiver of the law practice of Robert M. Neault of the firm Robert M. Neault & Assoicates. With the cooperation of Attorney Neault?s legal assistant Linda Moynihan, and Anne Neault, who is the Personal Representative of the Estate of Robert Neault, Attorney Smith shall:
It is further Ordered Attorney Smith shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: January 5, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Alan D. Graves, Esq.
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Docket No.: BAR#15-17
Issued by: Maine Supreme Judicial Court
Date: January 5, 2016
Respondent: Alan D. Graves, Esq.
Bar Number: 000091
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32 (2015)
Upon Petition filed by the Board of Overseers, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Ronald A. Mosley, Jr., Esq., is appointed Receiver for final closing of the law practice of Alan D. Graves. Pursuant to this Order, Attorney Mosley shall:
As a service to the bar, Attorney Mosley has agreed to serve as this Receiver on a pro bono basis. Attorney Mosley shall submit a semi-annual written report to the Court and the Board of Overseers of the Bar containing a record of time worked and disbursements made in this matter. The law practice of Alan D. Graves shall be the first choice for source of payment for those disbursements. If insufficient assets are available from that source, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Mosley shall act as Receiver until discharged by the Court in accordance with M. Bar R 32(c).
Attorney Mosley so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Attorney Mosley may be engaged by any former client of Alan D. Graves provided that the client is informed in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver?s employment by the client. Attorney Mosley is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client?s retention of the Receiver(s) as successor counsel is not a per se conflict of interest solely by reason of Attorney Mosley?s appointment by this Order. Attorney Mosley shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Finally, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, on or before June 1, 2016.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: January 5, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Beth Alison Maloney, Esq.
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Docket No.: GCF#14-417/14-459
Issued by: Grievance Commission
Date: February 26, 2016
Respondent: Beth Alison Maloney, Esq.
Bar Number: 009237
Order: Decision & Amended Order
Disposition/Conduct: Rejection of Stipulated Sanctions
On January 26, 2016, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, Beth Alison Maloney, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by its May 8, 2015 filing of a formal Disciplinary Petition.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected and the office of Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: February 26, 2016
Robert S. Hark, Esq., Panel Chair
Board of Overseers of the Bar v. Margaret P. Shalhoob, Esq.
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Docket No.: GCF#14-194 & 14-302
Issued by: Grievance Commission
Date: February 19, 2016
Respondent: Margaret P. Shalhoob, Esq.
Bar Number: 003676
Order: Reprimand Probation
Disposition/Conduct: Personal Conflict, Conduct Disruptive of a Tribunal, Respect for Rights of Third Persons, Prejudicial Conduct
M. Bar R. 13 (e)(7)(D)
On January 27, 2016, with due notice and pursuant to Maine Bar Rule 13 (e)(7)(D), Panel A of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Margaret P. Shalhoob, Esq. This disciplinary proceeding was commenced on September 15, 2015 by the Board?s filing of a Disciplinary Petition.
At the January 27, 2016 hearing, Attorney Shalhoob was represented by Robert Meggison, Esq. and the Board was represented by Aria Eee, Deputy Bar Counsel. Attorney Armanda Day, who is a Complainant in this proceeding, attended the hearing. Complainant Jane Clayton, Esq. did not attend.
Having reviewed the stipulated facts and exhibits presented by counsel, the Panel makes the following disposition:
Respondent Margaret P. Shalhoob, Esq., of Bangor, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Shalhoob was admitted to the Maine Bar in 1987 and is a solo practitioner with a varied civil law practice.
These complaint matters arose out of Attorney Shalhoob?s involvement in a divorce proceeding between the clients of Attorneys Clayton and Day. Prior to and after the filing of the 2012 divorce action, Attorney Shalhoob provided estate planning services to the client, ?MP,? then represented by Attorney Day. Attorney Shalhoob provided such services until June 11, 2014. While serving as his counsel, Attorney Shalhoob developed a social relationship with MP, which ultimately hindered her professional judgment, in violation of M. R. Prof. Conduct 1.7(a)(2). Attorney Shalhoob reports that she continued to generally advise MP in matters which could involve her personal interests but she did recommend MP to have other counsel involved if the issues concerned Shalhoob or her judgment.
Subsequent to the District Court?s issuance of MP?s December 2013 Divorce Judgment, Attorneys Clayton and Day filed their respective complaints against Attorney Shalhoob. Those grievance complaints described Attorney Shalhoob?s behavior during the divorce proceeding between MP and his estranged wife. As was detailed in the complaint filings, Attorney Shalhoob interfered and disrupted Attorney Day?s representation of MP. On one occasion, Attorney Shalhoob interrupted testimony to hand deliver documents not requested by Attorney Day. Attorney Shalhoob reports that on another occasion she received the permission of the judge to hand deliver financial analysis graphs to MP and/or his counsel, Attorney Day. She also issued last-minute subpoenas to five trial witnesses, utilizing a private investigator who MP hired to assist with his case. Attorney Shalhoob caused the subpoenas to issue without Attorney Day?s knowledge or consent. During the interview of those proposed witnesses, neither Attorney Day nor Attorney Clayton concluded that they were necessary or relevant to the divorce hearing. Those subpoenas were quashed by the Court on a separate basis. The Panel finds that Attorney Shalhoob?s interference during the divorce proceedings was prejudicial to the interests of justice in violation of M. R. Prof. Conduct 3.5(d), 4.4(a), and 8.4(d).
Moreover, throughout Attorney Day?s trial preparation, she received advice she did not request from Attorney Shalhoob. That advice included Shalhoob?s opinions regarding proposed lay and expert witnesses, trial strategy and legal research. On occasion, Attorney Shalhoob criticized Attorney Day?s work on the divorce matter, including her handling of the use of experts. Some of her communications to Attorney Day were also unprofessional, derogatory and unbecoming. In retrospect, Attorney Shalhoob agrees that her conduct exacted some increase to the time and expense of MP?s divorce proceeding. Attorney Shalhoob also acknowledges that her social relationship likely interfered with her professional judgement, in violation of M. R. Prof. Conduct 1.7(a)(2).
In her appearance before the Grievance Commission at this hearing, Attorney Shalhoob acknowledged her violations of the Professional Conduct Rules and apologized for her behavior.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. Due to Attorney Shalhoob?s actions, Attorneys Day and Clayton (and their clients) were subjected to her burdensome lack of professional judgment. Accordingly, the Panel finds that Attorney Shalhoob violated M.R. Prof. Conduct 1.7(a) [personal conflict]; 3.5(d) [conduct disruptive of a tribunal]; 4.4(a) [respect for rights of third persons] and 8.4(d) [prejudicial conduct]. The Panel notes that Attorney Shalhoob has taken responsibility for her behavior. She has acknowledged the wrongfulness of her actions and expressed remorse for her violations of the Maine Rules of Professional Conduct.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. However, the Panel recognizes that Attorney Shalhoob has been subject to prior disciplinary actions in the past, including one action of a similar nature in 2006, for which a dismissal with a warning was issued. Because of her disciplinary history and because the evidence supports a finding and Attorney Shalhoob agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that the misconduct is grounds for a public reprimand and a period of probation pursuant to M. Bar R. 21(b)(4) and (5).
Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand and Probation. Pursuant to M. Bar R. 13 (e)(10)(C) and (D), the Panel hereby issues that Reprimand to Margaret P. Shalhoob, Esq. and mandates supervised probation pursuant to M. Bar R. 21(b)(4) as set forth in the attached Confidential Probation Decision and Mandate.
Date: February 19, 2016
M. Ray Bradford, Esq., Panel Chair
Sarah McPartland-Good, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Tony F. Soltani, Esq.
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Docket No.: BAR#16-1
Issued by: Maine Supreme Judicial Court
Date: February 11, 2016
Respondent: Tony F. Soltani, Esq.
Bar Number: 007363
Order: Reprimand
Disposition/Conduct: Violate or attempt to violate either the MRPC or the Maine Bar Rules, Commit a criminal or unlawful act
This matter was initiated in response to the New Hampshire Supreme Court Professional Conduct Committee's referral to Maine Bar Counsel the "Reissued Public Censure and Order on Costs" filed by the New Hampshire Supreme Court Professional Conduct Committee on October 20, 2015 in the matter of Soltani, Tony F. advs. Attorney Discipline Office - #13-023.
Tony F. Soltani, Esq. was admitted to the Maine Bar in 1991 but practices in New Hampshire and remains registered in the State of Maine on an inactive nonresident basis.
On January 14, 2016 the Board of Overseers of the Bar filed a Petition for Reciprocal Discipline under M. Bar R. 26(e) seeking a public reprimand as discipline substantially identical to the discipline imposed under the New Hampshire Order.
On January 27, 2016, this Court ordered that Attorney Soltani inform it in writing of any claim by him that imposition of discipline substantially identical to that imposed by the State of New Hampshire would be unwarranted. On February 1, 2016, Attorney Soltani filed with this Court his Notice of Non-Objection to the imposition of identical or near identical discipline by this Court.
Accordingly, pursuant to M. Bar R. 26(e), it is hereby ORDERED as follows:
DATED: February 11, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In re Ray R. Pallas, Esq.
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Docket No.: 15-1
Issued by: Maine Supreme Judicial Court
Date: October 30, 2016
Respondent: Ray R. Pallas
Bar Number: 001594
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. Stanley E. Sproul
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Docket No.: BAR#16-6
Issued by: Maine Supreme Judicial Court
Date: February 22, 2016
Respondent: Stanley E. Sproul, Esq.
Bar Number: 001810
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Lester F. Wilkinson, Jr., Esq., is appointed the Receiver of the law practice of Stanley E. Sproul. Attorney Lester F. Wilkinson, Jr., shall:
It is further Ordered Attorney Wilkinson shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: February 22, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re John D. Griffin
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Docket No.: BAR#13-4
Issued by: Maine Supreme Judicial Court
Date: June 23, 2015
Respondent: John D. Griffin
Bar Number: 001528
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. In Re Caroline J. Gardiner, Esq.
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Docket No.: BAR#14-4
Issued by: Maine Supreme Judicial Court
Date: January 20, 2015
Respondent: Caroline J. Gardiner, Esq.
Bar Number: 006864
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. Christopher G. Limberis, Esq.
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Docket No.: BAR#14-7
Issued by: Maine Supreme Judicial Court
Date: January 15, 2015
Respondent: Christopher G. Limberis, Esq.
Bar Number: 000946
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. In Re Jonathan Reitman
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Docket No.: BAR#14-16
Issued by: Maine Supreme Judicial Court
Date: July 24, 2015
Respondent: Jonathan Reitman
Bar Number: 004591
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. In Re Mary K. Kahl, Esq.
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Docket No.:
Issued by:
Date:
Respondent:
Bar Number:
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. In Re Schuyler G. Steele, Esq.
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Docket No.:
Issued by:
Date:
Respondent:
Bar Number:
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. Torrey Sylvester
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Docket No.: BAR#16-4
Issued by: Maine Supreme Judicial Court
Date: February 25, 2016
Respondent: Torrey Sylvester
Bar Number: 001296
Order: Order of Surrender
Disposition/Conduct: Order of Surrender
M. Bar R. 25(d)
Attorney Torrey Sylvester was admitted to practice law in Maine in 1970.
Pursuant to M. Bar R. 25(d), on December 23, 2015 Attorney Sylvester submitted his letter of surrender of license and retirement from practice with supporting Affidavit to the Board of Overseers of the Bar.
On January 13, 2016 the Board unanimously recommended that the Court accept Attorney Sylvester's surrender of license from the Maine bar.
Upon review of Attorney Sylvester's request and related Affidavit, the Court approves the parties' agreement to waive hearing and finds good cause exists to grant that request and order his surrender from practice. Accordingly, it is hereby ORDERED:
Attorney Torrey Sylvester's surrender from the Maine bar is accepted pursuant to M. Bar R. 25(d). As a result, thirty (30) days from the date of this Order, his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine.
It is now further ordered that within that same thirty (30) day period, Attorney Sylvester shall provide confirmation of appropriate notification of his surrender from practice being provided to all affected clients, opposing counsel and courts in the manner set forth in M. Bar R. 31(a).
As required by M. Bar R. 25(d)(3). Attorney Sylvester's supporting Affidavit of December 23, 2015 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Attorney Sylvester seek reinstatement to the Maine bar, however, that Affidavit may then be made public without further order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 25(d)(3).
Dated: February 25, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Seth T. Carey, Esq.
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Docket No.: BAR#16-8
Issued by: Maine Supreme Judicial Court
Date: March 7, 2016
Respondent: Seth T. Carey, Esq.
Bar Number: 009970
Order: Interim Order
Disposition/Conduct: Interim Order staying Grievance Commission?s 2/2/2016 Report of Findings and Order
Pending is Attorney Carey's "Motion for Stay" in this matter. The Board has filed an opposition to that motion, and has suggested that Attorney Carey is already in violation of the February 2, 2016 order of the Grievance Commission that purported to place restrictions on Attorney Carey's practice.
Because my schedule will not permit a hearing before March 24, at the earliest, because it appears that current clients of Attorney Carey are in need of legal representation throughout the month of March, and because it is not clear that the Grievance Commission had authority to impose restrictions pursuant to former Maine Bar Rule 7.1(e )(3), an interim order is necessary to maintain the status quo.
THEREFORE, pending hearing on Attorney Carey's motion, he is not required to comply with the Grievance Commission's February 2, 2016 order.
SO ORDERED.
Dated: March 7, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: BAR#14-12
Issued by: Maine Supreme Judicial Court
Date: March 7, 2016
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Findings, Conclusions and Order
Disposition/Conduct: Suspension: Commit a criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects
Presently pending before the Court are: (1) The Board of Overseers of the Bar?s Information and separate Motion for Further Disciplinary Sanction, seeking ?final discipline in this matter by an order of disbarment;? and (2) Gary M. Prolman?s Response to the Board of Overseers Motion, including Prolman?s Motion for Termination of Temporary Suspension, Establishment of Fixed Suspension, and Reinstatement. In these proceedings, the Board of Overseers is represented by Bar Counsel J. Scott Davis, and Gary Prolman is represented by James M. Bowie.
A hearing on these matters was held at the Capital Judicial Center on February 19, 2016. The principal issues for the hearing were whether Gary Prolman should be disbarred from the practice of law, reinstated to the practice of law, or have his current suspension from the practice of law extended for a specific period of time, and what conditions to require of Prolman should he be reinstated to the practice of law.
At the hearing, Gary Prolman and several other witnesses testified, and the Court received a large volume of exhibits from both parties. Prior to the hearing, the parties had agreed that they could offer letters in lieu of calling live witnesses on character, rehabilitation, or advisability of disbarment or reinstatement issues. The parties had also agreed that any pleadings or other material from the court record in the federal criminal prosecution that led to this disciplinary proceeding could be offered in lieu of calling live witnesses. Accordingly, all exhibits were admitted without objection and are before the Court for consideration in reaching its decision.1
The proceedings leading to the hearing were generated by the Board?s Motion for Further Disciplinary Sanction filed with this Court, followed by Prolman?s response seeking limitation of his ongoing suspension and, ultimately, reinstatement. The filings were appropriate, as the matter is pending before this Court as a result of its June 23, 2014 suspension order. With the direct presentations to this Court, both parties effectively waived any preliminary proceedings before the Grievance Commission or the Board pursuant to the Maine Bar Rules in effect when this matter was initiated in 2014 or the revised Maine Bar Rules that took effect July 1, 2015.
The Court conducts this proceeding pursuant to the Bar Rules currently in effect and as applicable to proceedings before a Single Justice.
To support disbarment or a specific period of suspension, the Board has the burden to prove by a preponderance of the evidence, (1) violation of one or more provisions of the Maine Rules of Professional Conduct, and (2) misconduct of sufficient seriousness that, combined with any prior disciplinary record, will justify suspension or disbarment. M. Bar R. 14(b)(4), M. Bar R. 21(c).
The standards for reinstatement to the practice of law have been articulated in In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666, referencing former Maine Bar Rule 7.3(j)(5). The petitioner for reinstatement has the ?burden to present ?clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State,? as well as evidence establishing that ?reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.?? Id. (quoting former M. Bar R. 7.3(j)(5) and citing In re Application of Hughes, 594 A.2d 1098, 1101 (Me. 1991)2). The current standards for reinstatement, now articulated in Maine Bar Rule 29, are similar, including the petitioner?s clear and convincing evidence burden of proof, M. Bar R. 29(g). However, Rule 29(e) articulates the criteria for reinstatement in more detail.
Based on the testimony and exhibits offered at hearing, and other statements in documents filed by the parties addressing matters not in dispute, the Court finds the following facts regarding violation of the Rules of Professional Conduct established by a preponderance of the evidence:
Gary M. Prolman was born and grew up in Nashua, New Hampshire. He graduated from Middlebury College in 1983 and Franklin Pierce Law Center, now the University of New Hampshire School of Law, in 1988. He began his career in New Hampshire and was admitted to the Maine Bar in 1991.
After being admitted to practice in Maine, Prolman primarily engaged in a solo practice with a focus on criminal defense work in state and federal courts, though his practice has also included some domestic relations work and some advice to and representation of small businesses. Most of his practice has involved cases and clients in Cumberland and York Counties.
Before the events that gave rise to this proceeding, Prolman had been generally well regarded by other members of the bar who had professional contact with him. He had been subject to no other disciplinary actions.
Outside of his law practice, Prolman was very involved in his community, particularly with youth and high school hockey and with local charities that focused on children?s needs. He became assistant or head coach of several high school hockey teams in York and Cumberland County.
Through his involvement with hockey programs, Prolman also began to develop a separate business as a sports agent, advising and promoting young hockey players who demonstrated potential to play professionally. This business venture required much work and years of effort before realizing any returns. To support his sports agent business, Prolman relied on income from his law practice and a significant loan from his father. In 2012 Prolman?s sports agent business was about to realize significant returns, as three players he had advised for as many as eight years were entering professional hockey careers with good prospects of playing in the National Hockey League.
For many years prior to 2012, Prolman had regularly used cocaine and sometimes drank alcoholic beverages excessively. There is no evidence that his drug and alcohol abuse affected his law practice or his relationships with his clients. It primarily manifested itself during times away from his practice, though his cocaine use was becoming more regular by 2012.
At some point in 2012, Prolman?s cocaine dealer introduced Prolman to David Jones. Prolman soon became aware that Jones was an illegal drug dealer, primarily involved in sales of large quantities of marijuana. Jones expressed interest in having Prolman assist him in incorporating and acquiring real estate for some business ventures. Prolman assisted Jones as requested and was paid in cash for his legal advice and assistance.
Jones also learned of Prolman?s sports agent business and offered to invest in and become a part owner of the sports agent business. Prolman accepted Jones?s offer, viewing Jones?s investment as a way to repay his father?s significant loan that had been supporting the sports agent business and to stop relying on his family to support this venture.
During this time, Prolman decided to move his office from Portland to York County. With the assistance of his cocaine dealer?s spouse, who was a real estate agent, Prolman located a building in Saco that he could use as an office and residence, with other space to rent to tenants. To aid in purchase of the Saco property, Prolman accepted Jones?s offer to invest in and become a part owner of the property, and Jones may have been listed on the purchase and sale agreement. However, none of the purchase documents listed Jones as a part owner, and the financing documents did not identify Jones as having any interest in the Saco property.
In these various transactions Prolman accepted $127,875 in cash from Jones, which he then deposited in various banks in amounts of less than $10,000 to avoid federal cash source reporting requirements.
With his criminal practice experience Prolman was aware that the cash payments he was receiving from Jones were proceeds from drug transactions that were being laundered through the payments to Prolman. At one time Prolman assisted Jones by converting a large number of small bills into larger bills that could be more easily concealed by Jones as he travelled to acquire more illegal drugs.
In mid-2012, Jones was arrested in Kansas while returning to New England with illegal drugs purchased in California. Shortly after Jones? arrest, Jones? girlfriend appeared at Prolman?s residence with a large amount of cash which she indicated could be used to get an attorney and provide bail for Jones in Kansas. Prolman retained $50,000 of the larger amount offered by Jones? girlfriend, considering it a payment toward Jones?s investment in Prolman?s sports agent business. It does not appear that any of those funds were used to support an attorney or bail for Jones.
A search of Jones? residence in Maine led to discovery of receipts from Jones? cash transactions with Prolman,3 which then led to investigation of Prolman?s actions, directed by the United States Attorney?s office. Prolman initiated contact with the U.S. Attorney?s office to discuss his situation.
In late 2012, at a meeting involving Prolman, his retained attorney for the criminal matter, federal investigators, and an Assistant United States Attorney, Prolman was not truthful with those officials concerning specific details of his dealings with Jones, his own criminal conduct, and his illegal drug usage. For example, when asked by the federal investigators about his handling of approximately $127,000 in illegal drug-related funds, including making deposits at different banks in amounts that were purposely less than $10,000 each, Prolman asserted those funds had been generated by his legal services for an unnamed legal client. At that meeting Prolman also did not disclose that he had received the additional $50,000 in cash, delivered to him by Jones' girlfriend, and that he had then made several additional smaller bank deposits from those funds.
In later meetings with an Assistant United States Attorney and investigators, testimony by the Assistant United States Attorney indicated that Prolman was more forthright and provided much useful information that supported the bringing of charges against other individuals involved in the illegal drug trade. As part of his cooperation with the U.S. Attorney?s office, Prolman provided grand jury testimony in support of the government?s prosecution of others that, in at least one instance, was viewed as creating some personal risk for Prolman.
Throughout his involvement with the U.S. Attorney?s office and later up to and through his sentencing on the money laundering charges, Prolman never fully and forthrightly acknowledged his knowing participation supporting Jones?s money laundering. The Assistant United States Attorney testified that Prolman?s failure to fully acknowledge his role was difficult to understand in light of the physical evidence, the facts known to the government, and the potential mitigation in sentencing factors that full acknowledgment of his participation in the money laundering activity would have involved.
After considerable contact and interaction through 2013, Prolman, represented by counsel, and the U.S. Attorney?s office, on December 12, 2013, reached an agreement to plead to a money laundering charge. As a result of the plea negotiations, on April 29, 2014, Prolman pled guilty in the United States District Court to an information charging him with illegal financial transactions referred to as ?money laundering.? The Information and the government?s presentence report indicated that the specific charge to which Prolman pled guilty was Conspiracy to Launder Money and Aiding and Abetting, 18 U.S.C. §§ 1956(a)(1) and (h), and 18 U.S.C. § 1957(2). The Presentence Investigation Report, Prolman?s Exhibit 11, is incorporated by reference into this order, and its statement of the case, ¶¶ 1 ? 7 at pp. 3 ? 5, is adopted as more detailed findings about the offense.
Prolman?s plea acknowledged participation in a felony level conspiracy to launder $177,5004 worth of marijuana trafficking proceeds received from Jones or Jones?s girlfriend. The plea negotiations required Prolman to pay the $177,500 to the government. He did so, with assistance from his family, less than two weeks after entry of his plea. Except for his assistance to Jones in incorporating a business and acquiring a place to operate the business, and accepting money from Jones to support the purchase of his new law office, Prolman?s crime and his ethical violations do not in any way involve his practice of law. There has been no theft of client funds, delay, or betrayal of clients? interests often at issue in ethics violation matters.
As Prolman was negotiating his plea to the money laundering charge, he also began winding down his law practice, transferring active files to other criminal defense attorneys, and arranging to wind up the affairs of his office, close it, and store his files, anticipating his suspension from the practice of law.
After Prolman?s April 29, 2014 plea, with the matter continued for sentencing, the Board initiated disciplinary proceedings to suspend Prolman from the practice of law. On June 23, 2014, this Court entered an agreed order suspending Prolman indefinitely from the practice of law, as of that date. The suspension ordered on June 23, 2014, remains in effect.
The suspension order required Prolman to close his practice and give appropriate notice of his suspension from practice to clients and others in accordance with the then-existing Bar Rules. However, by the time the suspension was ordered, Prolman had effectively ceased the practice of law through the actions he had taken anticipating the suspension. This Court ordered appointment of a Limited Receiver on August 18, 2015, but by then the receiver?s principal function going forward was the organization, storage, and when necessary, retrieval of client files.
On December 16, 2014, Prolman was sentenced by the United States District Court. The Court incorporates the transcript of the sentencing proceedings, Board Exhibit 5, by reference into this order, noting particularly the findings by the United States District Judge that, even at that point, Prolman was still not being fully forthright and acknowledging his significant role in the money laundering scheme. As a result, the United States District Court declined to adopt an acceptance of responsibility calculation recommended in the presentence report that would have reduced the range of Prolman?s sentence pursuant to the federal sentencing guidelines.
The sentence the United States District Court ultimately imposed was a sentence of twenty-four months? imprisonment to commence on January 14, 2015 with an additional twenty-four months of supervised release, following release from incarceration. Of the twenty-four months period of incarceration, Prolman was actually confined at the federal facility in Lewisburg, Pennsylvania for approximately nine months.
In October 2015, he was transferred to the supervision of Pharos House in Portland for community confinement. The evidence at the February 19 hearing indicated that Prolman would be released from community confinement at Pharos House to home confinement with monitoring and reporting on February 26, 2016, and that his period of supervised confinement would end and his twenty-four month period of supervised release would begin on May 6, 2016.
Prolman?s incarceration at the Lewisberg facility provided a considerable shock to Prolman?s psyche. The prison setting was dramatically different than any of his prior life experiences, even though he had regularly dealt with people in jail and prison settings during his criminal practice. The experience of being locked up with other criminals, some of whom were violent, and being completely deprived of his freedom and his privacy, caused Prolman to seriously reevaluate his course in life that had gotten him to that point. That reevaluation led to a spiritual reawakening and a desire to return to continue to perform the many good deeds he had done in society before his involvement with the money laundering scheme in 2012. That reawakening in turn caused him to acknowledge, for the first time, the full extent of his participation in the money laundering scheme and the harm that his refusal to fully acknowledge his participation had done.
His reevaluation also led him to recognize that he needed to separate himself from the substance abuse problems that he had been experiencing, particularly with cocaine and alcohol, prior to his incarceration. To support his commitment to avoid substance abuse issues in the future, he joined a very rigorous 500 hour Residential Drug Abuse Treatment Program while at the Lewisberg facility. Independent evidence, including testimony by the Assistant United States Attorney, indicated that this program is indeed very rigorous with many people failing to meet its difficult standards. Prolman participated in and succeeded in completing the program with special recognition for his efforts.
After completing the program, though not necessarily related to completion of the program, Prolman was transferred to Pharos House in Portland. There, he was able to go about in the community, regularly reporting back to Pharos House and spending overnights at Pharos House. Each time he returned to Pharos House from any activity in the community, Prolman was subject to testing for alcohol and illegal drugs. He estimated that, during his time at Pharos House, he may have been tested hundreds of times for use of some substances. He also continued to engage in counseling regarding alcohol and drug abuse issues through Catholic Charities while at Pharos House.
There is no indication in the record that Prolman used alcohol or illegal drugs while at Pharos House or while allowed to go about in the community during his time at Pharos House. Also, the evidence indicates that he participated successfully in all required counseling and supervision programs while at Pharos House.
On November 30, 2015, the Board filed with the Court its motion seeking further disciplinary sanction of either disbarment or an extended suspension of Prolman. Prolman responded with his motion seeking limitation or termination of his suspension and reinstatement.
Those competing motions were heard on February 19, 2016.
Prolman?s actions in participating with Jones in the felony money laundering activity, his misleading actions in not disclosing Jones financial participation in the purchase of the property in Saco, his initial refusal to acknowledge the full extent of his participation in the money laundering activity, and his refusal to be forthright regarding his participation even at his federal sentencing and even when he must have been aware that his refusal to acknowledge his full participation was not in his best interest, were significant ethical violations.
The Board asserts that these actions violated Maine Rules of Professional Conduct 8.4 (a) ? (d). Rule 8.4(a) ? (d) states: It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or unlawful act that reflects adversely on the lawyer?s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice; ??.
There is no dispute, and Prolman does not now dispute, that by his conduct described above and in the federal presentence report he violated Maine Rules of Professional Conduct 8.4(a), (b), (c), (d). Further, the crime for which Prolman was convicted constitutes a ?serious crime? pursuant to current Maine Bar Rule 23(c). Prolman?s original and continuing suspension is fully justified based on these violations of his professional ethical obligations.
With this past conduct and the ethical violations established, the question before the Court becomes what further sanction is appropriate: disbarment, or a lengthy time specific suspension, as urged by the Board, or a shorter additional suspension leading to reinstatement, as urged by Prolman.
At the Court?s request, the Bar Counsel prepared and presented a list, dated February 19, 2016, of all the disciplinary actions in the past fifteen years in which bar discipline has been imposed, or at least considered, where an ethical violation by an attorney has been found as a result of the attorney having committed a ?serious crime? as that term is defined in Rule 23(c) of the new Bar Rules. Review of that list demonstrates that the appropriate sanction must be evaluated not necessarily by the offense committed or the ethical rule or rules violated, but by the particular circumstances of the case and the prior ethical record, if any, of the attorney involved. Comparison with other cases is particularly difficult here because, unlike most bar discipline cases, Prolman?s actions at issue involved no theft of client funds or other neglect or compromise of client interests.
The Board supports its argument for disbarment or a lengthy suspension by referencing sections 5.1 (Failure to Maintain Personal Integrity) and 5.11(Disbarment) of the American Bar Association Standards for Imposing Lawyer Discipline.5 However, the history of disciplinary actions presented in the Board?s February 19 listing of past disciplinary actions, and the earlier Maine bar discipline cases cited in Prolman?s post-hearing memorandum indicate that Maine practice in bar discipline cases, by the Board and the Court, has involved individualized consideration of the totality of the circumstances in each case, rather than strict application of guideline like rules to establish discipline.
Some of the histories of the serious crimes addressed in the February 19 list of discipline cases have led to disbarment. Others have led to or resulted in only very short suspensions and/or reinstatement, even when the crime at issue involved theft of client funds.
Prolman?s crime is a felony, money laundering of drug proceeds?in this case totaling $177,500 dollars. It occurred at a time when Prolman was exercising unusually bad judgment, perhaps as a result of thought processes impaired by escalating cocaine use. However, the events that occurred in 2012 appear aberrational in Prolman?s practice and Prolman?s life.
Unlike several of the attorneys appearing on the list of offenses provided by the Board of Overseers, Prolman had no prior disciplinary proceedings during his twenty years of practice in Maine before 2012. During that time, he was very actively engaged in the practice of law, particularly criminal defense work, sometimes providing valuable service to those who could not afford to pay him for his work. He was also willing to provide advice and assistance to other lawyers to help them address challenges with their cases or with their practices.
As reflected by many letters from attorneys filed in both the federal sentencing proceeding and filed as exhibits in this proceeding, Prolman was well respected and well known by his peers with active criminal practices in York and Cumberland Counties. In fact, in this Court?s experience with disciplinary matters, the number of letters from fellow members of the Bar supportive of Prolman?s reinstatement, complimentary of his skills, and noting the need for those skills in the profession is unusual, certainly not indicative of one who, in the past, had practiced at or near the bounds of ethical propriety.
The evidence also indicates that Prolman was more actively involved in his community and in charitable work than many other members of the Bar. As attested in many letters from members of his community, from clients, from parents, from persons involved with charities, from persons involved with youth and school hockey programs, beyond his practice, Prolman had an unusually valuable role in his community helping local charities and through involvement with youth and high school sports programs, particularly hockey programs. These are services which, when provided by Prolman, were greatly valued and which are still needed and could again be provided, particularly if Prolman resumes his law practice.
Considering Prolman?s past history, which, but for the aberration in 2012 is exemplary, considering what the Court finds to be his sincere commitment to change his life and avoid the ethical problems and contributing substance abuse issues that led to the events in 2012, and considering that Prolman has already served a twenty-one month suspension which required him, at the start, to essentially wind up his practice, the Court finds that the Board of Overseers of the Bar has not demonstrated, by a preponderance of the evidence, that disbarment or a lengthy additional suspension is required or is appropriate in the circumstances.
Mr. Prolman remains suspended based on the Court?s June 23, 2014, order. The Court must decide whether that order must be continued or whether reinstatement is justified. On the question of terminating his suspension and reinstatement, Mr. Prolman bears the burden of proof by clear and convincing evidence. M. Bar R. 29(g).
In deciding the question of reinstatement, protection of the public and the public interest is a primary consideration. In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666. Here, the record reflects, and the Court finds by clear and convincing evidence that, but for his aberrational actions in 2012, and his continued minimization of his criminal conduct in 2013 and 2014, before his incarceration, Prolman has provided exemplary service as an attorney in the Southern Maine community. Beyond his service as an attorney, Prolman had an unusual level of engagement in his community, supporting and helping provide resources for a wide variety of charities and community organizations, and particularly youth hockey programs.
With the commitments which the Court finds to be genuine, that Prolman has made to himself and to the Bar to reform and avoid the problems that led to his conviction, the disciplinary action, and his present suspension, the Court finds, by clear and convincing evidence, that the public will be well served and the community will be well served by reinstating Prolman to his position in the practice of law. The suspension that Prolman has already served is longer than the suspensions that some have received even for felony level theft of client funds or other serious failures of ethical obligations to clients.
The criteria for reinstatement stated in Bar Rule 29(e) follow:
(e) Criteria for Reinstatement. A petitioner may be reinstated only if the petitioner meets each of the following criteria:
(1) the petitioner has fully complied with the terms and conditions of all prior disciplinary orders issued in Maine or in any other jurisdiction except to the extent they are abated under Rule 30, unless such suspension, disbarment, or discipline is solely the result of reciprocal action resulting from disciplinary action taken by Maine authorities;
(2) the petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;
(3) if the petitioner was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the petitioner?s misconduct, the petitioner shall not be reinstated unless:
(A) the petitioner has pursued appropriate rehabilitative treatment;
(B) the petitioner has abstained from the use of alcohol or other drugs for at least one year; and
(C) the petitioner is likely to continue to abstain from alcohol or other drugs;
(4) the petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred;
(5) the petitioner has not engaged in any other professional misconduct since suspension or disbarment;
(6) notwithstanding the conduct for which the petitioner was disciplined, the petitioner has the requisite honesty and integrity to practice law;
(7) the petitioner has met the CLE requirements of Rule 5(a)(1) for each year the attorney has been suspended or disbarred, but need not complete more than 22 hours of approved credit hours for that entire period of absence from practice, provided that (i) no more than one half of the credit hours are earned through in-house courses, self study, or a combination thereof; and (ii) at least two credit hours are primarily concerned with the issues of professionalism as defined in Rule 5(a)(1); and
(8) In addition to all of the requirements in this provision, the attorney shall comply with Rule 4(a) and (b), and remit to the Board an arrearage registration payment equal to the total registration fee that the attorney would have been obligated to pay the Board under Rule 4(a) and (b) had the attorney remained actively registered to practice in Maine.
Addressing the Rule 29(e) criteria individually, the Court finds the following facts regarding Gary M. Prolman proven by clear and convincing evidence:
Based on the findings and conclusions stated in this Order, the Court concludes that, but for the aberrational events in 2012, and Prolman?s reluctance to accept full responsibility for his actions and ethical violations during 2013 and 2014, Gary M. Prolman has been a valued and trusted attorney and an unusually important and generous contributor to his community outside the law. The Court also concludes that Prolman?s reinstatement will be in the public interest, and that, with reinstatement, subject to conditions, Prolman can again provide important service to the public as an attorney and resume his role as an important contributor to his community.
Thus, the Court will terminate Prolman?s suspension from the practice of law, effective July 1, 2016. Terminating the suspension on that date will result in Prolman having served a two year suspension, which is within the range of sanctions imposed on some others with no prior disciplinary record for arguably comparable conduct. After that date, Prolman may be reinstated to the active practice of law, subject to compliance with the terms and conditions of this Order.
Therefore, the Court ORDERS:
Dated: March 7, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1The week after the hearing, the Court received one letter from an attorney, dated February 17, 2016. Because it was late and sent directly to the Court, that letter has not been considered.
2See also a later opinion, In re Hughes, 608 A.2d 1220 (Me. 1992). Hughes was a bar admission case of an attorney disbarred in Georgia who had embezzled ?more than $400,000? from clients and ?engaged in other fraudulent conduct in the practice of law.? 594 A.2d at 1099, 1102. The Court treated it as analogous to a reinstatement case. Hughes was ultimately admitted to practice in Maine while remaining disbarred in Georgia, having paid none of the restitution she had been ordered to pay as a result of her criminal conviction. 608 A.2d 1220.
3An Assistant United States Attorney testified at the February 19, 2016 hearing that discovery of receipts was unusual in a money laundering investigation.
4The total funds received from Jones was $177,875. Evidence indicates that $375 of that sum was paid as incorporation fees for the corporation that Junes had asked Prolman to help him establish. The $375 apparently was not considered laundered funds.
5Maine Bar Rules 21(c) references the American Bar Association ?Standards for Imposing Lawyer Sanctions? as including factors to be considered in imposing lawyer discipline. The Court assumes that this ABA document is the same one as the ?Standards for Imposing Lawyer Discipline? referenced in the Board?s memorandum.
Board of Overseers of the Bar v. William D. Maselli, Esq.
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Docket No.: GCF#05-402
Issued by: Grievance Commission
Date: April 19, 2007
Respondent: William D. Maselli, Esq.
Bar Number: 003853
Order: Dismissal with Warning
Disposition/Conduct:
On April 19, 2007, pursuant to due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, William D. Maselli. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on January 2, 2007. That Petition was supplemented by an amended Petition as agreed to by counsel on April 6, 2007.
Pursuant to M. Bar R. 7.1(e)(2)(E), a disciplinary proceeding incorporating the parties' submission of an agreed proposed sanction order was conducted on April 19, 2007. The Board was represented by Assistant Bar Counsel, Aria Eee, and Attorney Maselli was present and represented by Peter Rodway, Esq. The complainant, Jeannette Spiller-Sutherland, had been provided with a copy of this Report (in its proposal form) and was (was not) present, pro se.
On November 15, 2005 Jeannette Spiller filed a grievance complaint regarding Attorney Maselli's prior representation of Ms. Spiller's son, Emil Stammel. In her complaint, Ms. Spiller alleged neglect and dishonesty by Maselli during his handling of post-conviction review of Stammel's 2003 Cumberland County criminal convictions. Ms. Spiller further alleged that Attorney Maselli characterized his $5000.00 retainer as "non-refundable", that he did not earn his fee and that he refused to return any portion of the retainer.
In his answer to the complaint, Attorney Maselli acknowledged his failure to file Mr. Stammel's post-conviction matter within the statutorily mandated deadline, but asserted his belief that the deadline was extended due to Stammel's later conviction for related charges in York County. That September 2004 conviction occurred by voluntary plea with court-appointed counsel. Additionally, Attorney Maselli averred that he had considered both convictions and fully earned his retainer fee in Mr. Stammel's post-conviction action.
On January 18, 2005, Attorney Maselli filed Stammel's Petition for Post-Conviction Review in the Cumberland County Superior Court. By order dated January 28, 2005, the court summarily dismissed that Petition as being time-barred. Attorney Maselli did not retain a copy of the Petition for his files, nor did he send a copy to his client or to the District Attorney's office. Furthermore, Attorney Maselli did not receive a copy of the court's dismissal order.
By way of background, 15 M.R.S.A. § 2124(3)(A) outlines a "present indirect impediment", which allows post-conviction jurisdiction in the Superior Court when incarceration is imposed for a "subsequent criminal judgment" and the length of incarceration [is] greater than it would otherwise have been in the absence of the challenged criminal judgment." Without ruling on the merits of Attorney Maselli's argument in this regard, the Panel notes that if it proved to be a successful argument on Stammel's behalf, then the statutory deadline may have been met.
Of note, by October 2005, apparently neither the Petition nor the Order Summarily Dismissing the Petition for Post-Conviction Review was available from the court's file. This omission was apparent when Attorney Maselli received an initial grievance complaint against him by Ms. Spiller. Once he learned that he could not locate that January 2005 filing, he prepared a second Petition for Post-Conviction Review which Stammel then signed and returned to him for re-filing. Attorney Maselli filed the second Petition on December 7, 2005.
On January 5, 2006, Stammel's second Petition for Post-Conviction Review was summarily dismissed by the Cumberland County Superior Court. Since the Superior Court's order only referenced the second petition filing date?December 7, 2005-- presumably, Attorney Maselli's initial filing and its attendant order still then remained missing from the court's file. Given that fact, it appeared that the January 2005 filing did not occur.
During the Board's investigation, Bar Counsel's office and Attorney Maselli each learned from the Superior Court Clerk's office that the earlier post-conviction filing could not be found. It was only after Assistant Bar Counsel conducted her trial preparation in early April 2007 that the parties discovered that both of Stammel's Petitions and the related orders were then contained in the court's file.
Prior to that discovery, Attorney Maselli had potentially renewed his client's chances for post-conviction review. In that regard, his April 13, 2006 filing of simultaneous Motions to Vacate and to Amend the Petition for Post-Conviction Review led to a "second-chance" for Stammel. The Superior Court ultimately granted Stammel's motions thereby restoring the post-conviction review action to the docket. The State objected to the post-conviction review and requested a dismissal of the action. Following Attorney Maselli's further consultation and analysis with his client, in August 2006, the Petition for Post-Conviction Review was voluntarily dismissed by Stammel.
During this grievance proceeding, Attorney Maselli has acknowledged that best practice would have warranted his more frequent monitoring of Stammel?s case and of the related court and post-conviction proceedings. In doing so, he likely would have filed the initial Petition sooner so that no argument could be made that the January 2005 filing was time-barred. Although Attorney Maselli's failure initially resulted in a dismissal of Stammel?s post-conviction action, Attorney Maselli did succeed in having the matter restored to the Superior Court's docket. Notwithstanding that fact, Attorney Maselli's neglect likely proved stressful and frustrating for both Stammel and the family members supporting him.
Based upon the parties' proposal, the Grievance Commission Panel finds that Attorney Maselli's lack of due diligence delayed Stammel's post-conviction action and required extra efforts to restore the case to the court's docket. Although Attorney Maselli does not necessarily concede that the first Petition was late, he does understand why his client is upset and furthermore, that his "indirect impediment" arguments likely would have proved unsuccessful. Attorney Maselli's actions constituted a violation of M. Bar. R. 3.6(a)(1)(2)(3). As a result of these events, Attorney Maselli has apologized to Mr. Stammel and has demonstrated remorse for his behavior.
The Panel concludes that strategy decisions are ultimately within the purview of an attorney's professional judgment. While those decisions may or may not achieve the client's goals, in this case, Mr. Stammel voluntarily withdrew his Petition which essentially rendered the filing questions moot.
M. Bar. R. 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable, or likely to be unable, to discharge properly their professional duties. Since the evidence supports a finding and Attorney Maselli agrees that he did in fact, violate the Code of Professional Responsibility, it appears that a dismissal with a warning serves those purposes. Attorney Maselli has no history of discipline and the Panel finds that it is unlikely that he will repeat the same behavior in future advocacy for his clients.
Therefore, the Panel accepts the agreement of the parties, including Attorney Maselli's waiver of the right to file a petition for review, and concludes that the appropriate disposition of this case is a dismissal with a warning to William D. Maselli, Esq. as provided by M. Bar R. 7.1(e)(3)(B).
Dated: April 19, 2007
John Rich, Esq., Panel Chair
John R. Bass, Esq., Panel Member
John Hutchins, Public Member
Board of Overseers of the Bar v. John S. Jerabek, Esq.
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Docket No.: BAR#16-9
Issued by: Maine Supreme Judicial Court
Date: March 22, 2016
Respondent: John S. Jerabek, Esq.
Bar Number: 007699
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Anthony W. Beardsley, Esq., is appointed the Receiver of the law practice of John S. Jerabek. Attorney Beardsley shall:
It is further Ordered Attorney Beardsley shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: March 22, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Torrey Sylvester
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Docket No.: BAR#16-4
Issued by: Maine Supreme Judicial Court
Date: March 29, 2016
Respondent: Torrey Sylvester
Bar Number: 001296
Order: Modified Order of Surrender
Disposition/Conduct: Modified Order of Surrender
M. Bar R. 25(d)
Attorney Torrey Sylvester was admitted to practice law in Maine in 1970.
Pursuant to M. Bar R. 25(d), on December 23, 2015 Attorney Sylvester submitted his letter of surrender of license and retirement from practice with supporting Affidavit to the Board of Overseers of the Bar.
On January 13, 2016 the Board unanimously recommended that the Court accept Attorney Sylvester's surrender of license from the Maine bar.
Upon review of Attorney Sylvester's request and related Affidavit, the Court approves the parties' agreement to waive hearing and finds good cause exists to grant that request and order his surrender from practice. Accordingly, it is hereby ORDERED:
Attorney Torrey Sylvester's surrender from the Maine bar is accepted pursuant to M. Bar R. 25(d). As a result, thirty (30) days from the date of this Order, his name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine.
It is now further ordered that by April 5, 2016, Attorney Sylvester shall provide confirmation of appropriate notification of his surrender from practice being provided to all affected clients, opposing counsel and courts in the manner set forth in M. Bar R. 31(a).
As required by M. Bar R. 25(d)(3), Attorney Sylvester's supporting Affidavit of December 23, 2015 is hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. Should Attorney Sylvester seek reinstatement to the Maine bar, however, that Affidavit may then be made public without further order of the Court.
This Order is a matter of public record pursuant to M. Bar R. 25(d)(3). This Order shall replace the prior Order of the Court dated February 25, 2016.
Dated: March 29, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Peter Todd Travis, Esq.
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Docket No.: GCF#14-504 & 14-512
Issued by: Grievance Commission
Date: April 8, 2016
Respondent: Peter Todd Travis, Esq.
Bar Number: 005280
Order: Reprimand
Disposition/Conduct: Competence, Scope of Representation, Diligence, Communication, Fees, Safekeeping Property, Declining or Terminating Representation
M. Bar R. 13(e)(7)(D)
On April 8, 2016, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning misconduct by the Respondent, Peter Todd Travis, Esq. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by its May 5, 2015 filing of a formal Disciplinary Petition.
At the hearing, Attorney Travis (appeared telephonically) but was represented by his counsel, Walter McKee, Esq. The Board was represented by Deputy Bar Counsel Aria Eee. Complainant Erin Maher lives out of state and thus did not attend the hearing. Complainant John Nickols also lives out of state and likewise did not attend; however, Bar Counsel provided both complainants with a copy of the proposed order in advance of the hearing. Just prior to that date, the parties negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Peter Todd Travis, Esq. (Travis) of Minnesota was during all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Travis is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Travis was admitted to the Maine Bar in 2013.
On November 1, 2014, John M. Nickols (Nickols) filed a complaint against Attorney Travis. Simultaneous with that filing, Nickols also filed a claim against Travis with the Trustees of the Lawyer?s Fund for Client Protection (LFCP). According to those filings, in August 2014, Nickols contacted Travis regarding representation in tax matters arising for the years 2009-2013. Travis agreed to represent Nickols and sent him an August 27, 2014 engagement agreement, quoting an hourly rate of $200.00. Travis? stated fee was $3,500.00. On September 2, 2014, Nickols sent Travis a check for that amount which Travis then deposited in his IOLTA account at the Bank of Maine on September 16, 2014. Thereafter, Travis relocated his office out of state with no notice to Nickols.
In that regard, Travis violated MPRC 1.4, when he failed to consult with Nickols, and failed to keep Nickols reasonably informed of the status of his legal matter, his intended move out of state and the closure of his law office. Travis also failed to undertake reasonable steps to protect Nickols? interests upon termination of the representation, as is required by MRPC 1.16. Travis did not return the client file or the unearned retainer balance to Mr. Nickols before closing his Maine practice. As a consequence, the LFCP Trustees approved Nickols? claim matter and reimbursed him for the fee paid to Travis, due to the above-outlined misconduct.
Through his misconduct, Attorney Travis caused delay in Nickols? legal matters which was a serious concern to his former client.
Meanwhile, in November 2014, Erin M. Maher filed a complaint concerning Travis? representation of her in a partition action and related probate matter. Maher paid Travis an initial $4,500.00 advanced fee for the representation.
According to Maher, between June and October 15, 2014, Travis misinformed her about the status of the probate matter. While he reported having worked on that matter, Travis had not done so by the time of his September 2014 departure from Maine. Subsequent to his move, Travis ended all communication with Maher. He did not return her file or advanced fees when he ended the representation. He did not respond to Maher?s phone calls, voicemails, emails, or text messages. Maher ultimately discovered that Travis? Brunswick phone had been disconnected and he was no longer practicing at that office.
On October 31, 2014, opposing counsel was forced to request court relief (in the Superior Court) because he had been unable to contact Travis regarding the Maher matters. Thereafter, Maher?s successor counsel sought and was granted a continuance in order to attempt preparation for the contested hearing, without having access to Maher?s client file.
Through his neglect of Maher?s legal matter, Travis violated various provisions of the MPRC, including Rules 1.1 [competence]; 1.2 [scope of representation]; 1.3 [diligence] and 1.4 [communication]. The delays resulting from his actions could have had significant consequences for Maher, as she was not properly represented and unknowingly missed critical deadlines (mediation) and related opportunities to engage in settlement discussions. In further violation of MRPC 1.4, Attorney Travis failed to keep Maher reasonably informed of his then impending move out of state, and his termination of representation. He did not provide Maher with any notice of termination, nor did he take reasonable steps to protect her interests as required by MRPC 1.16. According to Maher, Travis is still in possession of her client file. In addition, upon termination, Travis did not return the unearned fee balance before closing his practice. In doing so, Travis violated MPRC 1.5(a) by collecting an excessive fee, when minimal legal services were actually provided. However, due to Maher?s Fee Arbitration filing, that dispute has since been settled, with Travis having issued an April 2015 refund check to Maher.
Moreover, despite the mandate to safeguard client property, Attorney Travis left behind approximately four (4) boxes of client information in the Brunswick office building which he had formerly rented. Additionally, according to the landlord of that building, client mail continued to arrive at the defunct law office. Travis did not make adequate provisions to return that property to clients or their agents, in violation of M. R. Prof. Conduct 1.15 (b)(2)(iv); and 1.15(f). Following retrieval of the client property, Bar Counsel and its Assistants were successful in locating at least one client and the family of another (deceased) client to inform them of the availability of their files. Upon inquiry, the former clients reported that they were unaware of the closing of Travis?s office, which constituted further violations of MRPC 1.4 [communication].
Additionally, MRPC 1.3 requires that a sole practitioner designate a proxy should that practitioner become disabled, missing, or deceased. A review of Travis? 2015 Registration Statement shows that his office operated as a solo practice yet he failed to complete Question (3) in violation of the professional conduct rules.
Despite the opportunity to do so, Travis failed to respond to either Ms. Maher?s or Mr. Nickols? complaint matters. Following his receipt of notice that the Grievance Commission Review Panel had directed the complaint matters for disciplinary hearings, Travis did make contact with the Board and acknowledged his errors regarding the Nickols and Maher matters. As a result, in June 2015, Travis and the Board negotiated a proposed stipulated resolution on the complaint matters.
On July 23, 2015, a Panel of the Grievance Commission was scheduled to conduct a stipulated hearing on the disciplinary action. Complainants Erin Maher and John Nickols each live out of state and thus were not able to personally attend the stipulated hearing. Travis was also residing out of state and intended to appear telephonically. However, Travis apparently did not accurately calendar the time for his disciplinary hearing and thus did not appear for the hearing. Later that same day, Travis emailed Bar Counsel to explain his absence.
The Grievance Commission Panel conducted a non-testimonial hearing on July 23, 2015 and subsequently issued a Report and Decision rejecting the parties? stipulated proposal.
Following the July 2015 brief hearing, Bar Counsel filed formal disciplinary charges against Travis, who through counsel, timely answered the Petition. Although the matter initially was contested, due to additional information since received by Bar Counsel and exchanged by the parties, they have re-negotiated a stipulated proposal for the Commission?s consideration and action. Having reviewed and deliberated on the pleadings, the above findings of misconduct and Attorney Travis? acceptance of responsibility for his handling of these client matters, the Panel accepts the parties? proposed resolution.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Travis? actions, clients were left unprotected and uninformed. Attorney Travis? treatment of them and his neglect of their respective legal matters was unfair and unprofessional. The Panel notes that at the disciplinary hearing, Attorney Travis accepted responsibility for his disregard for these clients. He expressed his remorse for the serious violations of the Maine Rules of Professional Conduct. Additionally, as referenced above, in April 2015 Travis subsequently reimbursed the clients and the Lawyer?s Fund (LFCP) for the amounts owed to Nickols and Maher. He also has returned to Bar Counsel an uncashed check he received on behalf of another client.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Travis agrees that he did in fact violate various provisions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Travis? separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Peter Todd Travis, Esq. That sanction is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C). In addition, should Attorney Travis return to Maine for the practice of law, such practice shall be subject to the agreed-upon Monitoring conditions as set forth below:
The terms of this Report of Findings are effective upon the date of entry on the Grievance Commission?s docket.
Date: April 8, 2016
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Dale F. Thistle
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Docket No.: BAR#14-10
Issued by: Maine Supreme Judicial Court
Date: April 13, 2016
Respondent: Dale F. Thistle
Bar Number: 007483
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
The Board of Overseers of the Bar ("the Board") has filed a petition to discharge Michael A. Wiers as Receiver for the law practice of Dale F. Thistle. The Board represents it provided copies of its petition and the final report of the Receiver to counsel for Dale F. Thistle. Mr. Thistle has not filed any opposition to the petition. Therefore the Court makes the following findings, and enters the following orders:
Accordingly, it is further ORDERED:
The Clerk is directed to incorporate this Order by reference upon the docket.
Dated: April 13, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. David E. Hunt, Esq.
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Docket No.: BAR#11-11
Issued by: Maine Supreme Judicial Court
Date: April 14, 2016
Respondent: David E. Hunt, Esq.
Bar Number: 002522
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Based upon a Receiver's Final Report and Petition for Compensation and Reimbursement of Expenses Filed Under Seal and Petition for Discharge ("Receiver's Final Report"), filed by the Receiver, Kurt E. Klebe, Esq., it is ORDERED as follows:
Dated: April 14, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Lawrence C. Winger
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Docket No.: 17
Issued by: Chief Judge Nancy Torreson
Date: 2016-04-01
Respondent: Lawrence C. Winger, Esq.
Bar Number: 002101
Order: Resignation
Disposition/Conduct: Resignation
District of Maine
ORDER granting without objection [16] Motion to Accept Resignation and Waive Disciplinary Hearing. Whereas the Respondent has moved this Court to accept his resignation from the practice of law in this Court and from the bar of this Court; and whereas the Respondent has knowingly and voluntarily waived his right to a disciplinary hearing under Local Rule 83.3(a)(4); the Court herewith GRANTS the Respondent's motion and accepts the Respondent's resignation as
tendered. It is FURTHER ORDERED that the Respondent is ineligible to seek reinstatement to the bar of this Court for a period of five years from the date of the issuance of this order.
Board of Overseers of the Bar v. Dale L. Lavi, Esq.
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Docket No.: BAR#15-11 & 15-14
Issued by: Maine Supreme Judicial Court
Date: April 25, 2016
Respondent: Dale L. Lavi, Esq.
Bar Number: 008848
Order: Suspended Suspension Probation
Disposition/Conduct: Competence, Diligence, Communication, Fees, Safekeeping property, Client Trust Accounts, Interest of Trust Accounts, Declining or Terminating Representation, Bar Admission and Disciplinary Matters, Misconduct
M. Bar R. 13(g)(4)
This matter arises from two grievance complaints filed by Jill and Kenneth Artkop and by Lynne Depasquale against Attorney Dale L. Lavi of South Thomaston, Maine. It is now before the Court as a result of disciplinary Informations filed by the Board of Overseers of the Bar pursuant to M. Bar R. 13(g)(1) on September 25 and November 9, 2015, respectively.
A hearing was conducted at the Cumberland County Courthouse in Portland, Maine on April 1, 2016. The Board of Overseers was represented by Bar Counsel J. Scott Davis. Attorney Lavi was present and represented by Attorney Justin W. Andrus. The parties stipulated to the facts that led to the grievance filings and to a finding that those facts constitute Attorney Lavi's violation of many specific portions of the Maine Rules of Professional Conduct. The parties also agreed to the form and terms of a proposed sanction to be imposed by the Court based upon Attorney Lavi's admission of those Rules violations.
Before that hearing, all three complainants had been notified by Bar Counsel of the parties' proposed stipulation and sanction. They were all in attendance at that hearing. Jill Artkop and Lynne Depasquale explained how Attorney Lavi's misconduct had affected them, and also explained their positions concerning the proposed sanction.
On or about February 23, 2015, Kenneth R. Artkop filed a grievance complaint against Attorney Lavi. In that filing, Artkop complained that Attorney Lavi had seriously neglected his and his wife's (Jill) bankruptcy matter.
Artkop alleged that Attorney Lavi was disorganized, failed to return phone calls, brought the wrong file to a discussion meeting, and was repetitive at the few meetings he did attend. Artkop also asserted that Attorney Lavi had been unreachable by phone and failed to return their file. The Artkops had paid Attorney Lavi $1,335, inclusive of a filing fee, to handle their bankruptcy matter.
On February 24, 2015, Bar Counsel mailed a copy of the Artkop grievance filing to Attorney Lavi, requesting and directing that he submit a written response by March 17, 2015. Despite telephonic, electronic, and written reminders from the office of Bar Counsel, Attorney Lavi never responded at any time to the Artkop complaint. His failure to respond is a violation of M.R. Prof. Conduct 8.1(b).
In addition, on April 28, 2015, Jill Artkop spoke by telephone with Attorney Lavi. During their conversation, Attorney Lavi claimed that he had earlier mailed the Artkops their file materials, but was unable to provide any confirmatory information of when or how he had done so. Jill Artkop understood that Attorney Lavi also promised that he would again mail those documents to her on that date, April 28, 2015. Attorney Lavi did not do so. The Artkops have never received any of their documents from Attorney Lavi. The Artkops hired replacement counsel to handle their bankruptcy, incurring additional legal and filing fees. The Artkops' new attorney wrote and telephoned Attorney Lavi with requests and messages, but Attorney Lavi also failed to respond to him.
On or about May 19, 2015, Bar Counsel left a voicemail and sent an email to Attorney Lavi requesting that he contact Bar Counsel concerning the return of the Artkops' file. Attorney Lavi never replied to Bar Counsel's call, emails, or letters, in violation of M.R. Prof. Conduct 8.1(b).
As a result of the above misconduct, Attorney Lavi agrees and admits that he engaged in conduct that violated at least the following portions of the M.R. Prof. Conduct, specifically Rules 1.1; 1.3; 1.4(a); 1.5(a); 1.15(b)(2)(iv); 1.16(d); 8.1(b); and 8.4(a)(c)(d).
On July 23, 2015, with due notice, the Grievance Commission conducted a public hearing pursuant to Bar Rule 13(e)(7) concerning the Board's disciplinary petition presenting the Artkops' complaint against Attorney Lavi. Based upon Attorney Lavi's failure to file any answer to that petition, he was defaulted, and the Board's factual allegations and conduct rule violations were admitted, pursuant to M. Bar R. 20(a).
At the hearing, Attorney Lavi and Kenneth Artkop addressed comments to the Panel. Attorney Lavi admitted that when he had received the Board's "really thick ... manila envelope," he "didn't (ever) look at it." In addition, he said that he also purposely never opened or "looked" at the Board's follow-up mailing, and he further said that he had consciously not answered the Board's disciplinary petition in this matter.
In its findings and order of August 28, 2015, the Hearing Panel concluded that Attorney Lavi intentionally, knowingly, and negligently violated the following provisions of the Maine Rules of Professional Conduct:
Rule 1.1, Competence: he failed to provide the Artkops with competent representation in their effort to declare bankruptcy;
Rule 1.3, Diligence: after minimal work, he ignored the Artkops' case;
Rule 1.4, Communication: he ignored the Artkops' repeated attempts to communicate with him;
Rule 1.5, Fees: he collected an unreasonable fee from the Artkops;
Rule 1.15, Safekeeping property, Client Trust Accounts, Interest of Trust Accounts: he failed to return the Artkops' bankruptcy file;
Rule 1.16, Declining or Terminating Representation: he did not formally terminate his representation of the Artkops; he also ignored them;
Rule 8.1, Bar Admission and Disciplinary Matters: he ignored the Board's disciplinary proceedings until the day of the hearing; and,
Rule 8.4 Misconduct: in violating the above Rules of Professional Conduct, he engaged in conduct that is prejudicial to the administration of justice.
On August 20, 2015, Lynne Depasquale filed a grievance complaint with the Board, claiming that Attorney Lavi was neglecting her bankruptcy matter by failing to respond to her repeated inquiries regarding the status of her bankruptcy matter.
Depasquale reported that, in January 2015, she had retained and paid Attorney Lavi $500.00 to handle her bankruptcy. By an email dated July 20, 2015, Attorney Lavi informed Depasquale that a " ... meeting with the Trustee is scheduled for August 17 at 11:00 at the Senator Inn in Augusta." Based on Attorney Lavi's email, Depasquale arranged to be absent from her employment on August 17, 2015. By text message of August 14, 2015, however, Attorney Lavi notified Depasquale that there would be no meeting with the Trustee on August 17, 2015.
When she checked directly with the Bankruptcy Court, Depasquale learned that as of August 17, 2015, Attorney Lavi had not even filed her bankruptcy petition. Attorney Lavi's email to Depasquale dated July 20, 2015 regarding the meeting with the Trustee scheduled for August 17, 2015 was a misrepresentation by Attorney Lavi in violation of M.R. Prof. Conduct 8.4(c).
Depasquale sent daily emails to Attorney Lavi from August 17 to August 20, 2015 asking for updates or explanations regarding her case, but he ignored her requests. In addition, Depasquale requested that Attorney Lavi provide her with copies of her entire client file, but he failed to do so.
Attorney Lavi did file Depasquale's action with the U. S. Bankruptcy Court on August 22, 2015. Based upon Attorney Lavi's neglectful conduct and failure to communicate with her, however, Depasquale became convinced he was no longer her attorney. As a result, she spent a significant amount of time and energy to prepare to litigate that bankruptcy action herself.
Although Attorney Lavi did appear at Depasquale's bankruptcy hearing on October 5, 2015, he had earlier abandoned Depasquale and her legal matter. He also deceived her, all in violation of M.R. Prof. Conduct 1.1; 1.3; 1.4(a); l.5(a); and 8.4(a)(c)(d).
During the investigation of the Depasquale matter, Bar Counsel made written requests to Attorney Lavi on August 26, 2015 and September 24, 2015 to submit a written response to Depasquale's complaint. Attorney Lavi failed to submit any response to Bar Counsel, in violation of M.R. Prof. Conduct 8.1(b).
Based on the facts set forth above, Attorney Lavi, admits that he engaged in violations of the following Maine Rules of Professional Conduct in the Depasquale matter: 1.1; 1.3; 1.4(a); l.5(a); 1.15(b)(2)(iv); 8.1(b); and 8.4(a)(c)(d).
Attorney Lavi has admitted and agrees that he engaged in the misconduct and violations of the Maine Rules of Professional Conduct as alleged in each disciplinary Information filed by the Board of Overseers of the Bar, as described and set forth above.
Counsel has confirmed that full refunds of the respective attorney fees have been made by Attorney Lavi to the Artkops and to Depasquale.
Pursuant to the parties' submitted proposal as supplemented by the Court, it is now hereby ORDERED as follows:
Attorney Dale L. Lavi is suspended from practicing law in Maine for two years, commencing May 2, 2016. All but thirty days of that suspension is suspended, subject to the following conditions:
So ORDERED.
Dated: April 25, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. William L. Dawson, Jr.
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Docket No.: BAR#13-23
Issued by: Maine Supreme Judicial Court
Date: May 9, 2016
Respondent: William L. Dawson, Jr.
Bar Number: 006887
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon the unopposed Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, attorneys John Sanford and Elizabeth Noble, both of the Camden law firm of Harmon, Jones & Sanford, LLP, are appointed co-Receivers of the law practice of William L Dawson, Jr. Attorneys Sanford and Noble Shall:
It is further Ordered Attorneys Sanford and Noble shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: May 9, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Seth T. Carey, Esq.
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Docket No.: BAR-16-8
Issued by: Maine Supreme Judicial Court
Date: May 18, 2016
Respondent: Seth T. Carey, Esq.
Bar Number: 009970
Order: Order
Disposition/Conduct: Order directing Bar Counsel to file Information with the Court
After review of the record created before the Grievance Panel, and after considering the arguments presented by Bar Counsel Scott Davis and by Attorney Seth Carey, I determine that the testimony of four jurists that Attorney Seth Carey is not competent to practice law establishes probable cause that this matter could "be concluded by suspension or disbarment." Therefore, pursuant to M. Bar R. 13(f)(5), I direct Bar Counsel to file an Information, and further direct that the matter be conducted as an attorney discipline action in accordance with Rule 13(g).
SO ORDERED.
Date: May 18, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Cynthia J. Dresden, Esq.
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Docket No.: BAR-16-5
Issued by: Maine Supreme Judicial Court
Date: May 27, 2016
Respondent: Cynthia J. Dresden, Esq.
Bar Number: 004443
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Me. Bar Rule 32(c)
Before the Court is a Petition for Discharge of the Receiver appointed by this Court to oversee the concluding of the law practice of Cynthia J. Dresden, Esq. After consideration of the Court's Order Appointing Receiver, the Receiver's Report of Services Rendered, and the Petition for Discharge, the Court finds:
Based upon the foregoing, the Court makes the following findings and reaches the following conclusions:
THEREFORE it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference.
Dated: May 27, 2016
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: BAR#14-12
Issued by: Maine Supreme Judicial Court
Date: June 3, 2016
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
Upon the Petition for Discharge of Limited Receiver filed by the Board of Overseers of the Bar pursuant to M. Bar R. 32, and without objection from Gary Prolman, this Court Orders:
Attorney Harry Center shall, on or before July 1, 2016, give possession of the professional files and client property of Prolman Law Office to Gary Prolman. Mr. Prolman shall not examine or utilize the files in any way prior to his reinstatement. Harry Center shall be deemed discharged as the Limited Receiver of the law practice of Gary Prolman as of July 1, 2016.
The Court acknowledges and expresses its appreciation to Attorney Center for the assistance he has provided to the courts of this state, the Board of Overseers of the Bar, and the former clients of Gary Prolman.
The Clerk is directed to incorporate this Order upon the docket by reference.
Dated: June 3, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Beth Alison Maloney, Esq.
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Docket No.: GCF#14-417 & GCF#14-459
Issued by: Grievance Commission
Date: June 17, 2016
Respondent: Beth Alison Maloney, Esq.
Bar Number: 009237
Order: Reprimand
Disposition/Conduct: Meritorious Claims and Contentions, Fairness to Opposing Party and Counsel, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)(7)(D)
On June 17, 2016, with due notice and pursuant to Maine Bar Rule 13(e)(7)(D), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Beth A. Maloney, Esq. The proceeding was commenced by the Board of Overseers of the Bar's (the Board) May 8, 2015 filing of a Disciplinary Petition concerning two contested family law matters for which there were no complaining clients. Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter.
At the June 17, 2016 hearing, the Board was represented by Aria Eee, Deputy Bar Counsel and Walter McKee, Esq. appeared as counsel for Attorney Maloney.
Having reviewed the agreed, proposed findings as stipulated to and presented by counsel, the Panel makes the following disposition:
Respondent Beth A. Maloney, Esq., of Kennebunkport, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Maloney was admitted to the Maine Bar in 2002 and is a solo practitioner. In addition to being a lawyer, she is also a published author.
By way of background, for several years prior to her admission to the Maine bar, Attorney Maloney practiced transactional law in California. Such a practice resulted in her having virtually no courtroom experience as a trial lawyer. For most of Attorney Maloney's time in Maine, the bulk of her practice has been as a Guardian ad litem in M. R. S. Title 22 protective custody matters, representing the best interests of children in cases of alleged abuse and neglect.
The complaint matters at issue in this proceeding arose out of Attorney Maloney's trial conduct in two highly contested family law matters involving child custody concerns. One of those matters was detailed in the Maine Law Court decision Dalton v. Dalton 2014 ME 108. The second matter was described within a decision issued by the Rockland District Court, Sullivan v. Tardiff (see Exhibit A).
On September 5, 2014, Bar Counsel initiated a sua sponte complaint matter concerning the apparent misconduct by Attorney Maloney in Dalton. Reference is made to the Maine Supreme Judicial Court's website for the Law Court's decision which details the Court's concerns. Subsequently, on October 1, 2014, Bar Counsel docketed a second sua sponte complaint file concerning the apparent misconduct by Attorney Maloney in Sullivan v. Tardiff In that matter, Attorney Maloney was sanctioned for pursuing/filing non-meritorious claims and contentions. As a result, Attorney Maloney was ordered to pay fees to opposing counsel, and she immediately complied with that order. By that time, although not asked by her clients to withdraw, Attorney Maloney had promptly effected such withdrawal in those legal matters (each with the clients' consent).
Of note, Attorney Maloney has never had any client file a complaint against her. Since the time of these cases at issue, she has referred all inquiries for representation in family matters to other attorneys. At the disciplinary hearing, Attorney Maloney candidly agreed that her conduct was regrettable and that her zeal for her clients' causes had interfered with her professional judgment. She apologized for her behavior and had already determined to no longer accept contested family matters. In the unlikely event that determination changes, Attorney Maloney will engage co-counsel for such contested matters.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities as officers of the court. The parties have agreed and the Panel so finds that with respect to these two contested family law matters Attorney Maloney violated M.R. Prof. Conduct 3.l(a) [meritorious claims and contentions]; 3.4(c) [fairness to opposing party and counsel]; and 8.4(d) [conduct prejudicial to the administration of justice]. The Panel notes that Attorney Maloney has taken responsibility for her behavior, acknowledged the wrongfulness of her actions, and expressed remorse for her violations of the Maine Rules of Professional Conduct.
Bar Counsel has confirmed to the Panel that Attorney Maloney has no prior disciplinary or sanction record on file with the Board.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Maloney agrees that she did in fact violate the Maine Rules of Professional Conduct, and that she has taken appropriate steps to address the resulting concerns, the Panel finds that a public reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties as a global resolution of the Dalton and Sullivan matters, including Attorney Maloney's separately executed waiver of the right to file a Petition for Review. The Panel concludes that the appropriate disposition of this combined disciplinary matter is a Public Reprimand to Beth Alison Maloney, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C).
Date: June 17, 2016
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: BAR-15-13
Issued by: Maine Supreme Judicial Court
Date: June 13, 2016
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Order
Disposition/Conduct: Grievance Commission Panel Judgment Affirmed
Donald F. Brown, Esq. has filed a petition for review by a Single Justice of the Maine Supreme Judicial Court, following a Report of Findings and Sanctions of a Grievance Commission of the Board of Overseers of the Bar. See M. Bar Rule 13(f).1 Pursuant to the Scheduling Order dated November 23, 2015, the parties submitted written argument and waived oral argument.
The facts found by the Grievance Panel are supported by the record, see M. Bar Rule 13(f)(4) (requiring a Single Justice to accept a Grievance Panel's findings of fact unless clearly erroneous), and, in any event, are undisputed.
This attorney discipline action arises from Attorney Brown's representation of former Washington County Sheriff Donald Smith. In December 2012, while still Sheriff, Smith suspended Karina Richardson from her employment with the County and requested the County Commissioners to terminate that employment. After a hearing held before the Commissioners, they did so. Richardson challenged the termination decision through a grievance process that consisted of arbitration. When the matter was arbitrated, the County was represented by the law firm of Rudman Winchell; Smith was represented by Attorney Brown; and Richardson was represented by Jeffrey Davidson, Esq. The arbitrator ultimately reinstated Richardson's employment subject to a six-month suspension.
In addition to invoking the grievance process, Richardson applied for unemployment insurance benefits. That application led to a contested administrative hearing held by a hearing officer, where Rudman Winchell again represented the County, and Attorney Davidson represented Richardson. Smith was not a party to the unemployment insurance proceeding before the hearing officer, and Attorney Brown was not involved in it. After the hearing, the hearing officer determined that Richardson was eligible for unemployment benefits because her termination was not precipitated by employee misconduct.
Although the County did not appeal from the hearing officer's decision. Smith did file an appeal to the Maine Unemployment Insurance Commission. See 26 M.R.S. § 1082(14). The record does not indicate that Attorney Brown sent Attorney Davidson a copy of the appeal to the Unemployment Insurance Commission. The Commission affirmed the award of benefits, and Smith filed an appeal with the Superior Court (Washington County). See M.R. Civ. P. 80C.2 When Attorney Brown commenced that action, he served the Commission and the Attorney General with the Rule 80C complaint as required by 5 M.R.S. § 11003(1)(A), (C). He did not serve Attorney Davidson or Richardson, however, even though he was required to do so pursuant to 5 M.R.S. § 11003(1)(B) because Richardson was a party to the action. Then, over the next several months, Attorney Brown filed with the court a number of motions for enlargement of time and, eventually, Smith's brief on appeal. Attorney Brown did not send copies of these filings to Attorney Davidson or to Richardson except for Smith's reply brief, which he sent to Attorney Davidson when he filed it with the court, and the principal brief which he sent to Attorney Davidson belatedly with the reply brief.
Shortly after Attorney Brown commenced the court action, an assistant attorney general entered an appearance for the Unemployment Insurance Commission and filed the administrative record, sending copies to Attorneys Brown and Davidson, with statements in the filings that both attorneys were copied. The caption in the Commission's court filings listed Richardson as a defendant. In mid-April 2014, another AAG entered an appearance and filed a motion, also sending copies to Attorney Davidson. The following month, after receiving that material, Attorney Davidson made a written inquiry with the clerk's office about the case, because neither he nor Richardson had received a copy of the Rule 80C complaint that Attorney Brown had filed and he had understood that the County was not going to appeal the unemployment insurance decision that was favorable to Richardson. Attorney Davidson's filings indicate that he sent a copy of that inquiry to Attorney Brown.
Later in May, the AAG representing the Commission filed the agency's brief. In early June, Attorney Brown filed Smith's reply brief and sent a copy of both the principal and reply briefs to Attorney Davidson. This was the first time Attorney Brown had provided Attorney Davidson with a copy of a court filing, but he still did not send Attorney Davidson the Rule 80C complaint itself. Attorney Davidson filed a motion to dismiss the complaint and for an award of sanctions, based on assertions that Smith had not served Richardson with the complaint and that Smith was not authorized to proceed with the appeal. Counsel for the Unemployment Insurance Commission also moved to dismiss the case based on her understanding that the County Commissioners had instructed Smith to dismiss the appeal. In fact, the present record contains a letter from the Commissioners to Attorney Brown, written during that time period, authorizing payment to Attorney Brown for his legal work but instructing him not to pursue the appeal any further.
Attorney Brown discussed the situation with Smith, who told Attorney Brown to continue with the appeal. The court (Billings, J) held a conference of counsel on July 30. Attorney Brown participated telephonically and stated that he did not oppose the motions to dismiss Smith's appeal, although he did not initiate a dismissal. The court granted the motions to dismiss, stating on the record that it was "troubled" that Attorney Brown failed to serve Richardson with the Rule 80C complaint or provide copies of court filings to her or to Attorney Davidson, when Attorney Brown either knew of those requirements or "easily" could have learned about them by researching the issue. The court also found, however, that Attorney Brown's "procedural failures" did not cause actual prejudice to Richardson. The court declined to reach Richardson?s motion for sanctions because the record on that issue was insufficient, and so the court ordered that the issue of sanctions be rescheduled. The present record does not reveal whether and, if so, how the issue of sanctions was adjudicated or otherwise resolved.3
In May 2015, the Board of Overseers of the Bar filed a disciplinary petition against Attorney Brown, alleging violations of Maine Rule of Professional Conduct 1.1, which requires an attorney to proceed competently; M.R. Prof. Conduct 3.4, which addresses the duty of candor owed to an opposing party and counsel; and M.R. Prof. Conduct 8.4, which defines categories of professional misconduct. A contested hearing was held in August 2015 before Grievance Panel B. There, Attorney Brown admitted that he did not represent Smith competently but argued that the violation warranted only an admonition.
In September 2015, the Panel issued a written decision finding that Attorney Brown's failure to serve Richardson with the Rule 80C complaint, although not intentional, constituted a lack of competence that "was a significant breach of his professional responsibility." The Panel found that Attorney Brown had sufficient opportunity to discover that he had failed to serve Richardson and yet, even after he was placed on actual notice of that problem when Attorney Davidson wrote to the court about it, never took any formal steps to cure the deficiency. The Panel also found that Attorney Brown's incompetency affected Richardson, Washington County, the Attorney General's office, and the court, because as a result of Attorney Brown's failing, they were required to spend "time and money on a case that was litigated but could not be resolved on the merits...." The Panel concluded that because Attorney Brown's misconduct was not minor, and because it caused more than little injury, the proper sanction was a reprimand rather than the lesser response of an admonition. See M. Bar Rule 13(e)(10)(C).
Attorney Brown filed the pending Rule 13(f) petition for review of the Panel's decision by a Single Justice. By order of the Chief Justice, the matter was assigned to me. In this review proceeding, Attorney Brown does not contest the Panel's determination that he violated the Rules of Professional Conduct. Rather, his challenge is limited to the nature of the sanction that the Panel imposed: he argues that the proper sanction is an admonition rather than a reprimand. See M. Bar Rule 13(e)(10)(B).
In an appeal from a grievance panel's imposition of a reprimand, a Single Justice's review is limited to the record developed before the panel. Findings of fact may be set aside only if they are clearly erroneous. See M. Bar Rule 13(f)(4). A Single Justice may affirm, vacate, or modify the panel's decision. Id. As is suggested by the deferential standard of review given to a panel?s factual findings, proceedings under Rule 13(f) are viewed as appellate in nature. See June 2015 Reporter's Notes to Rule 13(f).4
The dispositional alternatives available to a Grievance Panel on a finding of attorney misconduct are set out in Maine Bar Rule 13(e)(10). A panel is required to impose an admonition -which Attorney Brown asserts is the appropriate sanction-if the panel finds "that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by the attorney. . . ." Maine Bar Rule 13(e)(10)(B). Pursuant to Rule 13(e)(10)(C), a panel is authorized, but is not required, to impose a reprimand-which is the sanction the Panel imposed here-if at least one of the predicate circumstances requiring an admonition is not present.
I conclude that the Panel did not err by concluding that Attorney Brown's misconduct was more than minor and that it caused something more than "little or no injury.?5
First, the Panel did not err by concluding that Attorney's Brown's failure to integrate Richardson into the Rule 80C action was more significant than a minor breach of ethical standards. As the Superior Court observed when it addressed the motions to dismiss, the statute governing those procedures clearly required Attorney Brown to serve Richardson with the complaint. In fact, in section 11003, which governs service to commence a Rule 80C appeal, that requirement is textually surrounded by the service requirements applicable to the agency and the Attorney General, which Attorney Brown did satisfy, and Attorney Brown testified that he read section 11003. Further, the need to serve Richardson with the complaint should have been obvious from Richardson's participation in the agency proceeding, where she contested Smith's challenge to her application for unemployment insurance benefits.
Attorney Brown's initial but ongoing failure to serve Richardson with the complaint then was aggravated by his failure to send copies of court filings to her attorney while the case progressed, even when there were signals from others, namely, the assistant attorneys general who were involved in the case, putting him on notice he should be doing so. It was not until the last of Attorney Brown's filings, namely, Smith's reply brief, that he sent something to Attorney Davidson-and even then, Attorney Brown did not provide Attorney Davidson with copies of previously filed submissions other than Smith's initial brief. Finally, in the face of a motion to dismiss based on the failure to serve Richardson, Attorney Brown-who had been instructed by his client to continue with the appeal-merely acquiesced to an order granting that motion.
In addition to falling materially short of basic procedural requirements, Attorney Brown's omission had the effect of excluding from the Rule 80C proceeding the party whose interest was perhaps most at stake. Until late in the process-and in fact not until after the time when she would have filed her argument on appeal, Richardson was not on notice of Smith's judicial action, which Attorney Brown executed, seeking to deny her the unemployment insurance benefits she had been awarded. Regardless of the merits of the various arguments on Richardson's application, even though it did not rise to the level of an intentional effort by Attorney Brown to bypass Richardson, the magnitude of this misconduct was not minor.
Second, even though Attorney Brown eventually acceded to the efforts of the Commission and Richardson to terminate the appeal, the case caused damage in the form of an unnecessary loss of time and waste of effort. Richardson's exclusion from the judicial proceedings fatally tainted any result because, as the Panel correctly observed, even though the case ran much of its course, Attorney Brown's misconduct made it impossible for the court to render a decision that would have any effect. Nonetheless, judicial staff and at least one judge had to process the case. Additionally, the Attorney General's office was required to prepare and file the record on appeal, and Commission's counsel wrote and filed a brief. By arguing that none of this amounted to harm, Attorney Brown reveals an apparent lack of appreciation for the limitation of resources in public offices-even without considering the unnecessary efforts expended by Attorney Davidson as he responded to his untimely discovery of a proceeding that would have affected his client. Attorney Brown's misconduct therefore injured the public and the legal system.
For these reasons, I can only conclude that Attorney Brown's misconduct did not require the Grievance Panel to impose merely an admonition as a sanction under Rule 13(e)(10)(B), and that the Panel acted well within its authority by imposing a reprimand under Rule 13(e)(10)(C).
The entry is:
The decision of the Grievance Panel is affirmed.
Date: June 13, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
1Although the current version of the Maine Bar Rules became effective while this proceeding was pending before the Grievance Commission, the proceeding is governed by those Rules See Maine Bar Rule 33.
2The record leaves open the question of whether the County Commissioners authorized Smith to pursue the matter in those ways. Attorney Brown provided testimony that, at best, was equivocal about whether the County Commissioners authorized the initial appeal to the Unemployment Insurance Commission. He testified, for example, that he did not consult with the County Commissioners until after he filed Smith's appeal to the Commission, and the complaint in the Rule 80C appeal identifies Smith as the plaintiff even though, as the Grievance Panel found, Smith does not have "independent authority to speak for the County in such proceedings." The question of authorization is not material to this disciplinary proceeding.
3In his brief in this case, Attorney Brown states that Richardson did not follow up on her motion for sanctions.
4This is in contrast to attorney discipline proceedings commenced under Rule 13(g) when Bar Counsel files with the Court an information seeking suspension or disbarment. Judicial proceedings based on such an information are de novo.
5Even if I were to consider these issues de novo I would reach the same conclusions.
Board of Overseers of the Bar v. Kathleen M. Grover, Esq.
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Docket No.: GCF#15-152
Issued by: Grievance Commission
Date: June 29, 2016
Respondent: Kathleen M. Grover, Esq.
Bar Number: 000906
Order: Admonition
Disposition/Conduct: Communication
M. Bar R. 13(e)(7)(D)
On June 29, 2016, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Kathleen M. Grover. The disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 27, 2016.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan Kelley and Attorney Grover appeared with her counsel, Marvin H. Glazier, Esq. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. Also prior to that time, Complainant LoriAnn Bretz was notified of the hearing date and provided with a copy of the proposed sanction report. Ms. Bretz did not attend the June 29, 2016 stipulated hearing.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Respondent Kathleen M. Grover of Bar Harbor, Maine, was admitted to the Maine bar in 1978 and with the exception of a period of administrative suspension between November 13, 2013 and June 2, 2014, was an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Grover was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Based upon the stipulations by the parties, the Panel makes the following findings:
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Although the above-outlined conduct amounts to a violation of those Rules, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. According to the ABA "Annotated Standards for Imposing Lawyer Sanctions," various factors should be assessed prior to imposing sanctions upon an attorney. Those factors include whether certain duties were violated, the lawyer's mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances.
The first consideration under the ABA Standards is to evaluate the duty that was breached by the attorney. Attorney Grover failed to communicate adequately with her client, Ms. Bretz, and to keep her informed of the status of her legal matters between June 3, 2014 and January of 2015. Attorney Grover's failure to contact and confer with Ms. Bretz, or to provide her with her necessary tax forms, was a violation of her duty to reasonably consult with Ms. Bretz, and keep her informed under MRPC Rule 1.4(a). In mitigation, the Panel notes that the Board's regulation history reflects that Attorney Grover has no prior disciplinary record. At the stipulated hearing, Attorney Grover explained that her lack of communication with Ms. Bretz was an unintentional violation of the MRPC, she also then expressed her regret for having neglected to maintain communication with her client.
In sum, the evidence of misconduct supports the Panel's findings, and Attorney Grover agrees she did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that the misconduct is minor; that there is little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Grover. Accordingly, the Panel concludes that a public admonition is a proper sanction to impose upon Attorney Grover.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Kathleen M. Grover, Esq. pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: June 29, 2016
M. Ray Bradford, Jr., Esq., Panel Chair
Sarah McPartland-Good, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Janet C. McCaa, Esq.
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Docket No.: BAR#16-13
Issued by: Maine Supreme Judicial Court
Date: June 22, 2016
Respondent: Janet C. McCaa, Esq.
Bar Number: 003594
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Sarah A. McDaniel, Esq., and Bruce R. Johnson, Esq., are appointed the Receivers of the law practice of Janet C. McCaa. Attorneys McDaniel and Johnson shall:
b) with their final report, a record of hours worked and disbursements made, in the event payment of legal fees at the State court appointment rate is requested. The assets of the law office of Attorney McCaa shall be the first method of compensation to the Receivers and their agents, although ultimately, the Receivers may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney McCaa).
It is further Ordered Attorneys McDaniel and Johnson shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: June 22, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. George B. Hefferan, Jr., Esq.
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Docket No.: BAR#16-14
Issued by: Maine Supreme Judicial Court
Date: June 22, 2016
Respondent: George B. Hefferan, Jr., Esq.
Bar Number: 000702
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Daniel P. Barrett, Esq., is appointed the Receiver of the law practice of George B. Hefferan, Jr.. Attorney Barrett shall:
a. a report of their actions and the status of the Receivership at six month intervals; and
b. with their final report, a record of hours worked and disbursements made, in the event payment of legal fees at the State court appointment rate is requested. The assets of the law office of Attorney Hefferan shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Hefferan).
It is further Ordered Attorney Barrett shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: June 22, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Timothy M. Concannon
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Docket No.: BAR-13-24
Issued by: Maine Supreme Judicial Court
Date: June 30, 2016
Respondent: Timothy M. Concannon
Bar Number: 004951
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseer's Petition for Discharge of Limited Receiver. For cause shown and without objection, the Board's petition is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Limited Receiver of the law practice of suspended attorney Timothy M. Concannon.
It is further ORDERED that the Board is appointed file custodian. The Board shall ensure that all client and law office property is maintained or destroyed consistent with the Maine Rules of Professional Conduct. As file custodian, the Board shall also:
It is further ORDERED that if Mr. Concannon petitions for reinstatement to the Maine Bar he shall, if deemed appropriate by the Court, reimburse the Board for its costs in performing the receiver and file custodian duties, including for the continued storage, maintenance and eventual destruction of client files.
Dated: June 30, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Paul L. Letourneau, Esq.
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Docket No.: BAR-16-17
Issued by: Maine Supreme Judicial Court
Date: July 27, 2016
Respondent: Paul L. Letourneau, Esq.
Bar Number: 009544
Order: Immediate Interim Suspension
Disposition/Conduct: Conflict-of-Interest: Current Clients, Declining or Terminating Representation, Misconduct
Pursuant to Maine Bar Rule 24, the Board of Overseers of the Bar has moved for issuance of an order of interim suspension against Paul L. Letourneau, Esq. Over Attorney Letourneau's objection, I grant the Board's motion.
The Board filed the motion on July 20. The following day, the Chief Justice assigned me to this proceeding as Single Justice. On July 22, I conferred telephonically with counsel for the parties. With the agreement of the parties, I established a schedule for the parties to submit memoranda on the Board's motion. The parties have filed those submissions, which I have considered.
The Rule 24 motion is based on information-which is undisputed-that over a period of time, Attorney Letourneau sent unwanted text messages, photographs, and video images of a graphically sexual nature to a client whom he represented in several criminal cases. The client ultimately sought legal advice from a different attorney, who then both assumed representation of her in at least some of the cases where Attorney Letourneau had been counsel of record, and, in June, reported the matter to the Board. I infer that the report, which led to Bar Counsel's investigation of the matter, has triggered an administrative disciplinary proceeding under M. Bar R. 13 and related provisions.
Attorney Letourneau, through counsel, admits most or all of the conduct that underlies the Board's motion and does not argue that his conduct falls short of constituting violations of the Maine Rules of Professional Conduct. The present record supports the conclusion that he has violated several Rules, including Rules 1.7, 1.16, and 8.4.
I find that Attorney Letourneau's conduct, based on the present record, poses an ongoing threat to the administration of justice and therefore to the public. Additionally, as is shown by MAP's plan to address the issue of "professional boundaries between attorneys and clients," Attorney Letourneau's conduct poses an ongoing risk of harm to his remaining clients.
Attorney Letourneau argues that interim suspension nevertheless is not warranted because of the steps he has taken in response to the Board's intervention: executing a contract with the Maine Assistance Program; arranging for counseling with a psychologist, which is scheduled to begin on August 9; withdrawing his name from the roster of the Maine Commission on Indigent Legal Services (Attorney Letourneau was court-appointed to represent the client to whom he sent the communications at issue in this proceeding); and refraining from having any further contact with the client after she requested that he stop communicating with her.
The initial course that Attorney Letourneau has taken, combined with his expression of regret for his conduct as conveyed through counsel, is commendable. The risks to the administration of justice, the public, and his clients are not presently ameliorated, however, because that course is in its infancy: he has not yet actually engaged in psychological intervention, and the MAP contract is not even a week old. Further, Attorney Letourneau started to make arrangements for therapeutic and rehabilitative intervention only after he learned that the Board had initiated a disciplinary proceeding against him. Accordingly, I order that Attorney Letourneau shall be suspended from the practice of law in Maine pending the final disposition of the disciplinary proceeding or until further order of the Court. Attorney Letourneau shall have leave to seek a modification of this order upon a showing of a material change of circumstances. Attorney Letourneau shall comply with the notice requirements set out in M. Bar R. 31, as is required in M. Bar R. 24(c). Because Attorney Letourneau is counsel of record in pending cases, I will appoint a receiver to protect the interests of those and all other clients. Counsel in this proceeding shall confer about this issue and, no later than August 5, shall file either an agreed proposed order on receivership, or, if the identity of a receiver or the terms of the receivership are disputed, counsel shall file separate submissions setting out the parties' positions on those issues.
Date: July 27, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. William L. Dawson, Jr.
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Docket No.: BAR-13-23
Issued by: Maine Supreme Judicial Court
Date: August 1, 2016
Respondent: William L. Dawson, Jr.
Bar Number: 006887
Order: Disbarment
Disposition/Conduct: Disbarment
This Bar Discipline matter was heard by the Court on July 27, 2016 at the Capital Judicial Center in Augusta. The matter was presented on agreed documents and briefs and arguments by counsel.
After hearing and based on the findings and conclusions stated on the record, the Court indicated that it would (i) accept the surrender of Mr. Dawson?s license to practice pursuant to M. Bar R. 25; (ii) order Mr. Dawson disbarred pursuant to M. Bar R. 13(g) and 21(b)(2); and (iii) direct Mr. Dawson to reimburse the Board of Overseers of the Bar $10,485.66 for its costs incident to this disciplinary proceeding pursuant to M. Bar R. 22. The Court declined the Board?s request that Mr. Dawson be disbarred for life.
Therefore, the Court ORDERS:
Dated: August 1, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Shawn R. Megathlin
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Docket No.: BAR-16-16
Issued by: Maine Supreme Judicial Court
Date: August 2, 2016
Respondent: Shawn R. Megathlin
Bar Number: 007272
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement
M. Bar R. 4(i) & 29
Shawn R. Megathlin has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Mr. Megathlin's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Mr. Megathlin's petition for reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Shawn R. Megathlin, Bar# 007272, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: August 2, 2016
Thomas E. Humphrey
Associate justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Marilyn E. Stavros, Esq.
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Docket No.: BAR-15-10
Issued by: Maine Supreme Judicial Court
Date: August 8, 2016
Respondent: Marilyn E. Stavros, Esq.
Bar Number: 002273
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Me. Bar Rule 32(c)
Before the Court is a Petition for Discharge of the Receiver appointed by this Court to oversee the concluding of the law practice of Marilyn E. Stavros, Esq. The Petition has been reviewed by Special Bar Counsel for the Board of Overseers of the Bar. The Board joins in the Petition for Discharge of the Receiver.
After consideration of the Court's Order Appointing Receiver, the Receiver's Reports of Services Rendered, and the Petition for Discharge, the Court finds:
Based upon the foregoing, the Court makes the following findings and reaches the following conclusions:
THEREFORE it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P. 79(a).
Dated: August 8, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Douglas B. Chapman, Esq.
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Docket No.: BAR-16-18
Issued by: Maine Supreme Judicial Court
Date: August 10, 2016
Respondent: Douglas B. Chapman, Esq.
Bar Number: 000736
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Thomas B. Wheatley, Esq., is appointed the Receiver of the law practice of Douglas B. Chapman of the firm Fenton Chapman & Kane, P.A. Attorney Wheatley shall:
It is further Ordered Attorney Wheatley shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: August 10, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Paul L. Letourneau
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Docket No.: BAR-16-17
Issued by: Maine Supreme Judicial Court
Date: August 5, 2016
Respondent: Paul L. Letourneau
Bar Number: 009544
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Pursuant to the Court's Order of Interim Suspension of August 27, 2016, counsel for the Board of Overseers of the Bar and for Defendant Paul L. Letourneau have conferred and agreed1to the following Order of Appointment:
As of August 5, 2016 at 5:00 p.m., Attorney Joseph S. Mekonis is appointed as the Receiver of Paul L. Letourneau's law practice. As such Attorney Mekonis shall have the sole authority to:
Attorney Mekonis shall not disclose any information contained in any file without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32.
Attorney Mekonis may be engaged by any former client of Mr. Letourneau provided that Attorney Mekonis informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment of Attorney Mekonis does not mandate or recommend the Receiver's employment by the client.
The Receiver is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client's retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
As a service to the bar, Attorney Mekonis acknowledges that he serves as Receiver on a pro bono basis, although if there are sufficient assets from Mr. Letourneau's practice, Attorney Mekonis may be reimbursed from those assets.
The Receiver shall submit a quarterly status report to the Court and the Board of Overseers of the Bar containing summary of actions taken, a record of time worked, and an itemized list of any disbursements made to effect the terms of this Order. Mr. Letourneau shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Letourneau, the Board of Overseers of the Bar may be an alternate payment source for those disbursements. Any order of reinstatement of Mr. Letourneau shall take into consideration all expenses incurred during the course of the Receivership.
Attorney Mekonis shall be protected from liability for professional services rendered in accordance with M. Bar R. 32(e).
Attorney Mekonis shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32.
Pursuant to M. R. Civ. P. 79(a) the Clerk is instructed to incorporate this Order on the docket by reference.
Dated: August 5, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
1Attorney Mekonis has also agreed to this Order, which is expressly conditioned on his ongoing willingness to serve as receiver.
Board of Overseers of the Bar v. Robert M. Napolitano, Esq.
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Docket No.: GCF#15-360
Issued by: Grievance Commission
Date: August 25, 2016
Respondent: Robert M. Napolitano, Esq.
Bar Number: 001021
Order: Reprimand Probation
Disposition/Conduct: Competence, Diligence, Communication with Client, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)(10)(d) & 21(b)(4)
On August 25, 2016, with due notice and pursuant to Maine Bar Rule 13(e), Panel B of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Robert M. Napolitano, Esq. The Board of Overseers of the Bar (the Board) commenced the disciplinary proceedings by filing a Stipulated Disciplinary Petition on May 26, 2016.
At the hearing, Attorney Napolitano appeared with his attorney, Theodore H. Kirchner, and the Board was represented by Bar Counsel J. Scott Davis. Prior to that hearing date, the parties submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Robert M. Napolitano, Esq. has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Napolitano was admitted to the Maine Bar in 1970 and has practiced mainly and most currently as a solo practitioner.
This grievance matter was initially brought to Bar Counsel?s attention by the U. S. District Court of the District of New Hampshire, but as so directed and requested by that jurisdiction, that court has had no further involvement in the processing of this matter after making that referral.
After processing an investigation being conducted by Bar Counsel under the Maine Bar Rules, the parties agree and Attorney Napolitano admits that he engaged in the following misconduct in his pro hac vice representation of the defendant in the matter of United States v. Mustafa Arif in the U.S. District Court, District of New Hampshire:
Attorney Napolitano admits that his conduct in his handling of Mr. Arif's matter violated the following Rules of the Maine Rules of Professional Conduct: 1.1 (competence); 1.3 (diligence); 1.4(a) (communication with client); and 8.4(d) (conduct prejudicial to the administration of justice).
In addition to that federal court grievance matter, Bar Counsel was subsequently informally made aware by a Maine Superior Court Justice of his concerns of similar conduct by Attorney Napolitano in a post-conviction review matter, specifically Louis Atkinson v. State of Maine in the Lincoln County Superior Court.
The panel notes that Attorney Napolitano has the following sanction history with the Board: He received a stipulated public reprimand in 1998 for his admitted neglect of a criminal matter, and in 2004 he received a private warning sanction for an improper fee agreement, i.e., a minor conduct violation unrelated to the type of misconduct at hand.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment, but rather protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Napolitano agrees that he did in fact violate the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes.
Attorney Napolitano agrees and admits that he does now have certain physical issues and disabilities rendering a need for a limitation of his law practice. As a result, he has agreed to represent clients in felony-level criminal matters only with Attorney Peter E. Rodway of Portland, Maine also representing those clients as co-counsel. Attorney Napolitano further agrees that when he represents clients without co-counsel for more minor criminal matters, i.e., OUIs, possession of controlled substances, etc., he will restrict his practice to only handling criminal cases in the District and Superior Courts of Cumberland and York Counties. Attorney Napolitano may represent clients who are witnesses in federal criminal matters. Attorney Napolitano?s representation without co-counsel of clients for more minor criminal matters and clients as witnesses in federal matters shall remain subject to monitoring by Attorney Rodway under the terms of the probation, as discussed and referenced below. Accordingly, for that limited manner of representation and practice to be properly implemented, regulated and monitored, the Panel hereby directs that Attorney Napolitano shall be placed on probation for two years subject to annual review by the Grievance Commission Chair, or at earlier times as may be deemed necessary for good cause shown by Bar Counsel. Under the terms of that probation, Attorney Peter E. Rodway of Portland, Maine shall serve as the Monitor of Attorney Napolitano?s law practice. The specific terms of that probation and that Monitor service by Attorney Rodway shall be as set forth in a separate Probation Terms document which is incorporated by reference as a part of this Report.
Accordingly, for the admitted misconduct involved in his representation of Mr. Arif, the Panel hereby accepts the agreement of the parties, including Attorney Napolitano?s separately executed waiver of the right to file a Petition for Review, and directs that Attorney Napolitano receive a reprimand pursuant to M. Bar R. 21(b)(5) subject to probation as described herein and in the related Probation Terms document.
Dated: August 25, 2016
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
John C. Alfano, Public Member
M. Bar R. 21(b)(4)
This Decision and Mandate is incorporated by reference to the related Report of Findings and Decision dated August 25, 2016, in the above-docketed matter.
As the parties have agreed and this Panel has so ordered in its Report, Attorney Robert M. Napolitano shall submit his practice of law to a period of probation pursuant to M. Bar R. 21(b)(4). The person serving as probation attorney is Peter E. Rodway, Esq. of Portland, Maine. The term of such probation is two (2) years unless otherwise ordered by the Grievance Commission or the Maine Supreme Judicial Court (Court). The Grievance Commission further directs that:
a. Attorney Rodway ceases to act as probation attorney and a potential conflict is avoided;
b. Attorney Rodway continues as the probation attorney, but totally excludes Attorney Napolitano?s client?s matter from the process, so that no conflict is deemed to exist;
c. Attorney Rodway continues as probation attorney, but withdraws from the conflicted matter; or
d. Attorney Rodway continues as probation attorney and obligates Attorney Napolitano not to participate in the matter and to promptly refer his client to successor counsel or the Lawyer Referral Service of the Maine State Bar Association.
a. Measures Attorney Napolitano has taken to avoid problematic interactions with his clients, opposing counsel/litigants, jurists and clerks and others related to his practice of law;
b. A description of any client matter identified as delinquent or problematic; and
c. Any professional assistance Attorney Rodway has provided to Attorney Napolitano.
Date: August 25, 2016
Thomas H. Kelley, Esq., Panel B Chair
Board of Overseers of the Bar v. Peter J. Richard, Jr.
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Docket No.: GCF#15-390
Issued by: Grievance Commission
Date: August 25, 2016
Respondent: Peter J. Richard, Jr.
Bar Number: 004674
Order: Admonition
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Misconduct
M. Bar R. 13(e)(7)(D)
On August 25, 2016, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Peter J. Richard. The disciplinary proceeding had been commenced by the filing of a stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 3, 2016.
At the August 25, 2016 stipulated hearing, the Board was represented by Bar Counsel J. Scott Davis. Peter J. Richard, Jr., did not appear. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel?s review and consideration.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Mr. Richard violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar.
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Mr. Richard violated his duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once he was administratively suspended. Ultimately, Mr. Richard did file the affidavit as contemplated by M. Bar R. 4(K), indicating that he had not been practicing law, and that he had no actual clients at the time of his administrative suspension. As a result, it appears that there was no actual injury to any client, or the public resulting from Mr. Richard?s delay in filing his affidavit.
In sum, the evidence of misconduct supports the reviewing Panel?s findings, and Peter J. Richard, Jr. agrees that he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that Mr. Richard?s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Mr. Richard. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Richard.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Peter J. Richard, Jr. pursuant to M. Bar R. 13(e)(10)(B).
Date: August 25, 2016
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
John C. Alfano, Public Member
Board of Overseers of the Bar v. Randy L. Robinson, Esq.
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Docket No.: GCF#15-313
Issued by: Grievance Commission
Date: August 30, 2016
Respondent: Randy L. Robinson, Esq.
Bar Number: 009251
Order: Reprimand
Disposition/Conduct: Competence, Candor Toward the Tribunal, Fairness to Opposing Party and Counsel, Truthfulness in Statements to Others, Misconduct
M. Bar R. 13(e)(10)(C) & 21(b)(5)
On August 30, 2016, with due notice and pursuant to Maine Bar Rule 13(e), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Randy L. Robinson, Esq. The Board of Overseers of the Bar (the Board) commenced that disciplinary proceeding by filing a Disciplinary Petition on February 24, 2016.
At the hearing, Attorney Robinson appeared with his attorney, Stephen C. Whiting, Esq., and the Board was represented by Bar Counsel J. Scott Davis. Prior to that hearing date, the parties submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. Having reviewed those stipulated proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Randy L. Robinson, Esq. has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Robinson was admitted to the Maine bar in 2002 and has practiced mainly as a solo practitioner.
This complaint matter was initiated on a sua sponte basis by Bar Counsel Davis under Maine Bar Rule 2(b)(2), as a result of the Maine Law Court?s decision in Estate of Mildred Maccomb, 2015 ME 126, issued on September 22, 2015 (see attached Exhibit 1).
Within its decision in Maccomb, the Law Court noted and discussed Attorney Robinson?s repetitious failures to properly comply with and follow the Court?s Maine Rules of Appellate Procedure in the appeal by his client (James Richman) of the Kennebec County Probate Court?s Judgment regarding the probate of the Estate of Mildred Maccomb. The Law Court issued two dismissals of Richman?s appeals, each due to Attorney Robinson?s failure to follow those appellate rules. Through Attorney Robinson, Richman then sought reconsideration of the Law Court?s rejection of his second brief. In its Order of July 30, 2015, the Law Court included an entry that specifically ?Rejected? Richman?s brief (filed by Attorney Robinson), and then ordered that an amended brief, ?with correct citations to the record,? must be filed for that matter to properly proceed.
When Attorney Robinson then filed Richman?s second amended brief, the pro se Appellee filed a motion requesting the Law Court reject that still deficient brief. In ¶ 5 of Maccomb, the Law Court specifically referenced and quoted from Attorney Robinson?s stated opposition to that motion:
??counsel (Attorney Robinson) has struggled mightily with the Brief and this Amended Brief, as he double checked for accuracy citations and law as they relate to the body of the Brief, putting too much effort still into substance rather than form, given the Court?s Order.?
In fact, however, from Bar Counsel?s investigation of this grievance matter, he learned that Attorney Robinson had actually enlisted another attorney, Andrews B. Campbell, to make those corrections to the brief. Furthermore, with no specific reason provided, Attorney Robinson reported to Bar Counsel that he ?had very little time left to review the legal and record citations, to make sure that Attorney Campbell had corrected them appropriately.?
As a result, Attorney Robinson now agrees that above-quoted statement included by him within his opposition filing (as cited by the Law Court) was a misrepresentation by him to the Law Court in violation M. R. Prof. Conduct 3.3(a); 4.1(a); and 8.4(a)(c)(d). He also agrees that he acted in an incompetent manner by repeatedly failing to follow the Law Court?s appellate rules, in violation of M.R. Prof. Conduct 1.1 and 3.4(c).
The Panel has been informed by Bar Counsel Davis that Attorney Robinson has no prior sanction history on file with the Board.
The Panel further notes that the purpose of bar disciplinary proceedings is not punishment of attorneys, but instead the proper protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Robinson agrees that he did in fact violate the above-referenced portions of the MRPC, the Panel finds that a public reprimand serves those purposes.
Accordingly, for the admitted misconduct involved in his improper representation and handling of Richman?s appellate matter before the Law Court, the Panel hereby accepts the agreement of the parties, including Attorney Robinson?s separately executed waiver of the right to file a Petition for Review. The Panel hereby directs that Attorney Robinson receive a reprimand pursuant to M. Bar R. 21(b)(5).
Dated: August 30, 2016
James A. McKenna, III Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Anita M. Volpe, Esq.
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Docket No.: BAR-16-7
Issued by: Maine Supreme Judicial Court
Date: August 30, 2016
Respondent: Anita M. Volpe, Esq.
Bar Number: 000913
Order: Order of Surrender
Disposition/Conduct: Order of Surrender
MAINE BAR RULE 25
Attorney Anita Volpe was admitted to the Maine bar in 1977. For many years, she has maintained a solo practice focusing primarily on family law, Social Security disability, real estate, probate and estate planning matters.
Pursuant to M. Bar R. 25(d)(2), the Court conducted a final hearing to consider Attorney Volpe's voluntary surrender request of June 15, 2016. That surrender, with supporting Affidavits, was submitted by counsel for Attorney Volpe. On June 22, 2016, the Board of Overseers of the Bar considered the matter and recommended that the Court accept Attorney Volpe's surrender from the Maine bar, subject to conditions as adopted by the Court within this Order.
Final hearing in this matter occurred on August 30, 2016. Appearing with his client on that date was George T, Dilworth, Esq., counsel for Attorney Volpe. Deputy Bar Counsel Aria Eee appeared on behalf of the Board of Overseers of the Bar. Prior to hearing, the parties notified the Court that they had reached agreement as to formal resolution of this matter.
Therefore, following final hearing and the parties' agreement, it is hereby ORDERED:
Attorney Anita M. Volpe's surrender from the Maine bar is accepted, pursuant to M. Bar R. 25(d). As a result, sixty (60) days from the date of this Order, her name shall be removed from the list of practitioners who are admitted to practice law before the courts of the State of Maine. With this Order, the Court, grants Attorney Volpe's request to have an additional thirty (30) days in order to wind down her practice.
It is further ordered that Attorney Volpe shall, consistent with M. Bar R. 31, notify all clients, adverse parties/opposing counsel, financial institutions, and courts wherein she practices of her withdrawal from the practice of law. Attorney Volpe shall provide such notice within sixty (60) days after the effective date of this surrender. Furthermore, Attorney Volpe shall, within, ten (10) days after the effective date of the surrender, file with Bar Counsel, the notification affidavit required by M. Bar R. 31(h).
Pursuant to M. Bar R 25(d)(3), Attorney Volpe's supporting Affidavits of June 15, 2016 are hereby impounded and shall not be available for inspection unless otherwise ordered by the Court. However, should Attorney Volpe seek reinstatement to the Maine bar, those Affidavits may then be made public without further order of the Court.
Finally, Attorney Volpe shall cooperate with Special Counsel, her practice monitors and any Proxy/Receiver in the wind down of her law practice. In the event that the Lawyers' Fund for Client Protection (LFCP) pays any future claims on her behalf, Attorney Volpe shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees.
This Order is a matter of public record pursuant to M. Bar R. 25(d)(3).
Dated: August 30, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Carl G. Buzawa
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Docket No.: GCF# 15-366
Issued by: Grievance Commission
Date: September 8, 2016
Respondent: Carl G. Buzawa
Bar Number: 003703
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate and provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On September 8, 2016, with due notice, panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Carl G. Buzawa. On June 7, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Mr. Buzawa [Buzawa] along with a Summons requiring him to answer the Petition within twenty-one days.
The Summons specifically warned Buzawa that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Buzawa did not answer the Board?s Petition. Likewise, Buzawa did not appear at, nor participate in, the September 8, 2016, public disciplinary hearing.
Respondent Carl G. Buzawa of Carlisle, Massachusetts, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Buzawa was admitted to the Maine bar in 1986 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Mr. Buzawa was administratively suspended by the Board due to his failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Buzawa on November 24, 2015, as a result of Buzawa?s subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following his summary administrative suspension. Buzawa failed to file a response in defense of his actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On May 17, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Buzawa had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Buzawa violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Buzawa violated his duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once he was administratively suspended. Buzawa?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Buzawa's continuing failure to file an affidavit complying with M. Bar R. 4(k)(8), is an aggravating circumstance.
Because the evidence supports a finding that Buzawa did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Carl G. Buzawa which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(B)(5).
Dated: September 8, 2016
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, Public Member
Board of Overseers of the Bar v. Jeffrey S. Hamm
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Docket No.: GCF#15-377
Issued by: Grievance Commission
Date: September 8, 2016
Respondent: Jeffrey S. Hamm
Bar Number: 004641
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate and provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On September 8, 2016, with due notice, panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Jeffrey S. Hamm. On June 7, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Mr. Hamm [Hamm] along with a Summons requiring him to answer the Petition within twenty-one days.
The Summons specifically warned Hamm that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Hamm did not answer the Board?s Petition. Likewise, Hamm did not appear at, nor participate in, the September 8, 2016, public disciplinary hearing.
Respondent Jeffrey S. Hamm of Gorham, Maine, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Hamm was admitted to the Maine bar in 2010 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Mr. Hamm was administratively suspended by the Board due to his failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Hamm on November 24, 2015, as a result of Hamm?s subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following his summary administrative suspension. Hamm failed to file a response in defense of his actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On May 17, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Hamm had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Hamm violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Hamm violated his duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once he was administratively suspended. Hamm?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Hamm's continuing failure to file an affidavit complying with M. Bar R. 4(k)(8), is an aggravating circumstance.
Because the evidence supports a finding that Hamm did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Jeffrey S. Hamm which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(B)(5).
Dated: September 8, 2016
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, Public Member
Board of Overseers of the Bar v. Jeremey A. Miller
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Docket No.: GCF#15-384
Issued by: Grievance Commission
Date: September 8, 2016
Respondent: Jeremey A. Miller
Bar Number: 004398
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate and provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On September 8, 2016, with due notice, panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Jeremey A. Miller. On June 7, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Mr. Miller [Miller] along with a Summons requiring him to answer the Petition within twenty-one days.
The Summons specifically warned Miller that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Miller did not answer the Board?s Petition. Likewise, Miller did not appear at, nor participate in, the September 8, 2016, public disciplinary hearing.
Respondent Jeremey A. Miller of Concord, New Hampshire, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Miller was admitted to the Maine bar in 2008 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Mr. Miller was administratively suspended by the Board due to his failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Miller on November 24, 2015, as a result of Miller?s subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following his summary administrative suspension. Miller failed to file a response in defense of his actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
May 17, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Miller had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Miller violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Miller violated his duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once he was administratively suspended. Miller?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Miller's continuing failure to file an affidavit complying with M. Bar R. 4(k)(8), is an aggravating circumstance.
Because the evidence supports a finding that Miller did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Jeremey A. Miller which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(B)(5).
Dated: September 8, 2016
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, Public Member
Board of Overseers of the Bar v. Alyson L. Peverly
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Docket No.: GCF#15-389
Issued by: Grievance Commission
Date: September 8, 2016
Respondent: Alyson L. Peverly
Bar Number: 005501
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate and provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On September 8, 2016, with due notice, panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Alyson L. Peverly. On June 7, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Ms. Peverly [Peverly] along with a Summons requiring her to answer the Petition within twenty-one days.
The Summons specifically warned Peverly that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Peverly did not answer the Board?s Petition. Likewise, Peverly did not appear at, nor participate in, the September 8, 2016, public disciplinary hearing.
Respondent Alyson L. Peverly of Eliot, Maine, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Peverly was admitted to the Maine bar in 2014 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Ms. Peverly was administratively suspended by the Board due to her failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Peverly on November 24, 2015, as a result of Peverly?s subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following her summary administrative suspension. Peverly failed to file a response in defense of her actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On May 17, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Peverly had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Peverly violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Peverly violated her duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once she was administratively suspended. Peverly?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Peverly's continuing failure to file an affidavit complying with M. Bar R. 4(k)(8), is an aggravating circumstance.
Because the evidence supports a finding that Peverly did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Alyson L. Peverly which is now hereby issued and imposed upon her pursuant to M. Bar R. 21(B)(5).
Dated: September 8, 2016
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, Public Member
Board of Overseers of the Bar v. Adam B. Zimmerman
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Docket No.: GCF#15-393
Issued by: Grievance Commission
Date: September 8, 2016
Respondent: Adam B. Zimmerman
Bar Number: 004761
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate and provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On September 8, 2016, with due notice, panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Adam B. Zimmerman. On June 7, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Mr. Zimmerman [Zimmerman] along with a Summons requiring him to answer the Petition within twenty-one days.
The Summons specifically warned Zimmerman that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Zimmerman did not answer the Board?s Petition. Likewise, Zimmerman did not appear at, nor participate in, the September 8, 2016, public disciplinary hearing.
Respondent Adam B. Zimmerman of Portland, Maine, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Zimmerman was admitted to the Maine bar in 2010 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Mr. Zimmerman was administratively suspended by the Board due to his failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Zimmerman on November 24, 2015, as a result of Zimmerman?s subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following his summary administrative suspension. Zimmerman failed to file a response in defense of his actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On May 17, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Zimmerman had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Zimmerman violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Zimmerman violated his duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once he was administratively suspended. Zimmerman?s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Zimmerman's continuing failure to file an affidavit complying with M. Bar R. 4(k)(8), is an aggravating circumstance.
Because the evidence supports a finding that Zimmerman did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Respondent Adam B. Zimmerman which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(B)(5).
Dated: September 8, 2016
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, Public Member
Board of Overseers of the Bar v. Richard A. Foley, Esq.
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Docket No.: GCF#15-203
Issued by: Grievance Commission
Date: October 13, 2016
Respondent: Richard A. Foley, Esq.
Bar Number: 001804
Order: Reprimand
Disposition/Conduct: Fees, Conflict-of-Interest: Current Clients
On October 13, 2016, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Richard A. Foley. The Board of Overseers of the Bar (the Board) commenced this disciplinary proceeding by its April 25, 2015 filing of a Disciplinary Petition.
At the October 13, 2016 hearing, the Board was represented by Deputy Bar Counsel Aria Eee and Attorney Foley appeared with his counsel, James M. Bowie, Esq. Prior to the hearing, the parties had submitted a Stipulated Proposed Sanction Report for the Grievance Commission Panel?s review and consideration. Also prior to that hearing, Complainants Judith Shaw, Esq. Karla Black, Esq. and Carrie Carney, Esq. each were notified of the hearing date and provided with a copy of the proposed sanction report. Complainants Judith Shaw, Esq. and Karla Black, Esq. attended the October 13 stipulated hearing.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
Respondent, Richard A. Foley, Esq., was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Foley was and remains subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (MRPC). Attorney Foley practices law in a two person firm in Augusta, Maine. Based upon the stipulations by the parties, the Panel makes the following findings:
The Maine Rules of Professional Conduct specifically require attorneys to uphold their duties to clients and the courts. Although the above-outlined conduct amounts to a violation of those Rules, the Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public. According to M. Bar R. 21(c), the various factors enumerated within the ABA ?Annotated Standards for Imposing Lawyer Sanctions,? should be assessed prior to imposing sanctions upon an attorney. Those factors include whether certain duties were violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer?s misconduct, and the existence of any aggravating or mitigating circumstances. As referenced earlier herein, Attorney Foley has no prior disciplinary or sanction history, which is credited as a mitigating factor. His former client, R.P., is a more vulnerable client than others who are not similarly-situated, which serves as an aggravating factor.
Despite those circumstances, there is no evidence on this record that Attorney Foley personally benefited from the actions he took on behalf of R.P., except to the extent that he billed her for the time he spent providing the 2014-2015 services. The Panel notes, however, that, Rule 1.8?s limitations on an attorney seeking or acquiring an ability to personally benefit from a Power of Attorney, even though that power may not be exercised, requires that the attorney comply stringently with the requirements of that Rule. Attorney Foley concedes that he did not provide that communication to his client.
Similarly, Rule 1.5(b) requires that the attorney make clear the scope of the provided legal representation and the manner in which the attorney will be billing the client. In a case such as this, where Attorney Foley undertook to provide general advice to R.P. that had been previously provided to her by others, he was required to be specific in explaining to R.P. the services he would be providing at his regular hourly rate. Attorney Foley concedes that he failed to have a full and complete discussion of his billing with his client.
In sum, the evidence of misconduct supports the Panel?s findings that Attorney Foley violated his obligations under Rules 1.5 and 1.8 to his client, R.P. Attorney Foley reports that those violations were inadvertent. The Panel makes no determination whether R.P. suffered any pecuniary loss (other than having been billed for attorney?s fees) as a result of Attorney Foley?s actions. Based upon his admissions, the Panel finds that there is little likelihood of repetition of the behavior by Attorney Foley. However, given the absolute prohibition against self-dealing between an attorney and a client except by stringent compliance with Rule 1.8, the Panel cannot find that Attorney Foley?s violations and resulting misconduct were minor. Accordingly, the Panel concludes that a reprimand is the proper sanction to impose upon Attorney Foley.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of a Public Reprimand, which is now hereby issued and imposed upon Richard A. Foley, Esq., pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: October 13, 2016
David S. Abramson, Esq., Panel Chair
Stephanie P. Anderson, Esq., Panel Member
Sallie M. Crittendon, Public Member
Board of Overseers of the Bar v. Erika L. Frank, Esq.
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Docket No.: GCF#16-094
Issued by: Grievance Commission
Date: October 13, 2016
Respondent: Erika L. Frank, Esq.
Bar Number: 008326
Order: Reprimand
Disposition/Conduct: Meritorious Claims and Contentions, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e) & 21(b)(5)
On October 13, 2016, with due notice and pursuant to Maine Bar Rule 1.3(e)(7), a Panel of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Erika L. Frank, Esq. This disciplinary proceeding commenced on September 26, 2016, by the Board?s filing of a Stipulated Disciplinary Petition.
At the October 13, 2016, hearing, Attorney Frank appeared pro se and the Board was represented by Aria Eee, Deputy Bar Counsel. Ms. P1, who is the Complainant in this proceeding, attended the stipulated hearing, and received an advanced copy of this proposed order. Ms. P has had the opportunity to remark on the proposal and her comments have been considered by the Grievance Commission Panel.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Erika L. Frank, Esq., of Windham, Maine, was at all times relevant hereto an attorney duly admitted to the practice of law in Maine. As such she was and is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Frank was admitted to the Maine Bar in 1996 and at the time of the relevant events, Frank was a solo practitioner with a varied civil law practice.
According to the parties? stipulations, the Panel finds the following relevant facts: During her client, Mr. P?s divorce action, Attorney Frank served as successor counsel, following mediation which involved Mr. P?s prior counsel. In an attempt to achieve settlement on terms desired by her client, Attorney Frank wrote a letter intended to expedite finalization of the matter. In doing so, however, she engaged in improper negotiations. The specific language of that settlement letter contained terminology that reflected a quid pro quo, which included the below statements:
?If your client will not agree to the terms of settlement proposed in my February 18, 2016 letter, then we intend to pursue Ms. P for the following: Violation of the PFA?Child abuse based upon videos of the children speaking of [her] abuse of [the son]; and ?Federal offense of opening Mr. P?s mail without his knowledge or consent. If we do not have a response by March 11, 2016 I will prepare to take action on the items listed above.?
The Panel finds that Attorney Frank?s transmittal of that letter, with the specific language as detailed above, constituted a violation of MRPC 3.1(b). That Rule is as follows:
3.1 Meritorious Claims and Contentions
(b) A lawyer shall not report or threaten to report misconduct to a criminal, administrative or disciplinary authority solely to obtain an advantage in a civil matter.
The letter she sent to opposing counsel arguably suggests that Attorney Frank would make a referral to criminal and or administrative authorities. In that regard, while Attorney Frank herself did not report Ms. P to DHHS, her client (who was copied on the letter to opposing counsel) did make such a report. He did so on March 14, 2016, two days after the deadline given by Attorney Frank in her letter. DHHS conducted a subsequent investigation of Ms. P?s parenting which according to her attorney, proved very distressing to Ms. P and the family. Also according to her attorney, Ms. P?s legal fees were increased due to the additional work required of him to ready witnesses to rebut any charges of child maltreatment.
Although Attorney Frank was unaware of her own client?s report to DHHS, the Panel finds that she should have anticipated him doing so, given his involvement in the DHHS issue. Attorney Frank should also have anticipated that by sending a letter which included the above-cited language, it would result in Ms. P?s perceiving such a letter as a threat to pursue criminal and or child abuse charges.
The Panel accepts Attorney Frank?s explanation that she did not intend to cause distress to Ms. P, and further accepts her acknowledgement that such upset was nevertheless a reasonable reaction to the letter sent by Attorney Frank. The Panel finds that the letter caused actual harm to Ms. P and constituted a violation of MRPC 3.1(b) and 8.4(d). By way of mitigation, however, Attorney Frank has expressed remorse and reports that DHHS issued no adverse findings against Ms. P. Attorney Frank further understands how to avoid such errors in her future course of dealing with adverse litigants.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to their clients and as officers of the court. Due to Attorney Frank?s actions, Ms. P experienced further avoidable distress in her acrimonious divorce matter. Attorney Frank has accepted responsibility for her improper treatment of Ms. P (by way of the aforementioned letter) and acknowledged the upset it caused her.
The Panel notes that Attorney Frank was previously reprimanded in May 2012 for conduct related to her lack of diligence in serving as a real estate closing agent. Attorney Frank was also reprimanded in 2009 for conduct related to conflicts, standards of care and judgment and conduct prejudicial to the administration of justice. Prior to that, in August 2006, Attorney Frank received a dismissal with a warning for her violations concerning client communication. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Frank agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel finds that a Public Reprimand serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Frank?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand. Pursuant to M. Bar R. 21(b)(5), the Panel hereby issues that Reprimand to Erika L. Frank, Esq.
Dated: October 13, 2016
Andre J. Hungerford, Esq., Panel Chair
Stephanie P. Anderson, Esq., Panel Member
Sallie M. Crittendon, Public Member
1Initials are used throughout this Order to protect the privacy of the family law clients and their children.
Board of Overseers of the Bar v. Michael R. Brooks
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Docket No.: GCF#15-364
Issued by: Grievance Commission
Date: October 7, 2016
Respondent: Michael R. Brooks
Bar Number: 009925
Order: Admonition
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate or Attempt to Violate any provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On October 3, 2016, with due notice, panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Michael R. Brooks. On August 2, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Mr. Brooks [Brooks] requiring him to answer the Petition within twenty-one days.
A letter from Bar Counsel dated August 2, 2016, specifically warned Brooks that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Although Brooks did not answer the Board?s Petition, he did appear at the October 3, 2016 public disciplinary hearing.
Respondent Michael R. Brooks of Madison, New Hampshire, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Brooks was admitted to the Maine bar in 2005 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Mr. Brooks was administratively suspended by the Board due to his failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Brooks on November 24, 2015, as a result of Brooks? subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following his summary administrative suspension. Brooks failed to file a response in defense of his actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On June 9, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Brooks had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Brooks violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar, nor has he completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Brooks violated his duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once he was administratively suspended.
Ultimately, Brooks did file the affidavit as contemplated by M. Bar R. 4(K), indicating that he had not been practicing law, and that he had no actual clients at the time of his administrative suspension. As a result, it appears that there was no actual injury to any client, or the public resulting from Brooks? delay in filing his affidavit.
In sum, the evidence of misconduct supports the reviewing Panel?s findings, and Michael R. Brooks agrees that he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that Brooks? misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Brooks. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Brooks.
Therefore, the Panel concludes that the appropriate disposition of this case is the issuance of an ADMONITION, which is now hereby issued and imposed upon Michael R. Brooks pursuant to M. Bar R. 13(e)(10)(B).
Dated: October 7, 2016
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Sarah E. Desormiers
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Docket No.: GCF#15-372
Issued by: Grievance Commission
Date: October 7, 2016
Respondent: Sarah E. Desormiers
Bar Number: 009946
Order: Admonition
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate or Attempt to Violate any provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On October 3, 2016, with due notice, panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Sarah E. Desormiers. On August 2, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Ms. Desormiers [Desormiers] requiring her to answer the Petition within twenty-one days.
A letter from Bar Counsel dated August 2, 2016, specifically warned Desormiers that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Although Desormiers did not answer the Board?s Petition, she did appear at the October 3, 2016 public disciplinary hearing.
Respondent Sarah E. Desormiers of Portland, Maine, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Desormiers was admitted to the Maine bar in 2005 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Ms. Desormiers was administratively suspended by the Board due to her failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Desormiers on November 24, 2015, as a result of Desormiers? subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following her summary administrative suspension. Desormiers failed to file a response in defense of her actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On June 9, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Desormiers had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Desormiers violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Desormiers violated her duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once she was administratively suspended.
Ultimately, Desormiers did file the affidavit as contemplated by M. Bar R. 4(K), indicating that she had not been practicing law, and that she had no actual clients at the time of her administrative suspension. As a result, it appears that there was no actual injury to any client, or the public resulting from Desormiers? delay in filing her affidavit.
In sum, the evidence of misconduct supports the reviewing Panel?s findings, and Sarah E. Desormiers agrees that she did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that Desormiers? misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Desormiers. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Desormiers.
Therefore, the Panel concludes that the appropriate disposition of this case is the issuance of an ADMONITION, which is now hereby issued and imposed upon Sarah E. Desormiers pursuant to M. Bar R. 13(e)(10)(B).
Dated: October 7, 2016
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Colleen A. Mathews
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Docket No.: GCF#15-383
Issued by: Grievance Commission
Date: October 7, 2016
Respondent: Colleen A. Mathews
Bar Number: 004234
Order: Admonition
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate or Attempt to Violate any provision of the MRPC or the MBR, Conduct Prejudicial to the Administration of Justice
M. BAR R. 13
On October 3, 2016, with due notice, panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by Respondent Colleen A. Mathews. On August 2, 2016, Assistant Bar Counsel Alan P. Kelley filed with the Board of Overseers of the Bar [Board] a Disciplinary Petition. On that same date, Bar Counsel served that Disciplinary Petition on Ms. Mathews [Mathews] requiring her to answer the Petition within twenty-one days.
A letter from Bar Counsel dated August 2, 2016, specifically warned Mathews that failure to file an answer to the Disciplinary Petition within 21 days from the date of service would mean that the misconduct alleged in the Petition ?shall be taken as admitted, but you may be heard on the question of sanctions.? Although Mathews did not answer the Board?s Petition, she did appear at the October 3, 2016 public disciplinary hearing.
Respondent Colleen A. Mathews of Sullivan, New Hampshire, was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Mathews was admitted to the Maine bar in 2007 and is currently subject to an administrative non-disciplinary suspension. Effective October 15, 2015, Ms. Mathews was administratively suspended by the Board due to her failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). The Board filed a grievance complaint against Mathews on November 24, 2015, as a result of Mathews? subsequent failure to file the required affidavit of compliance required by M. Bar R. 4(k)(8) following her summary administrative suspension. Mathews failed to file a response in defense of her actions. Such failure to respond to Bar Counsel?s inquiries violated M. R. Prof. Conduct 8.1(b).
On June 9, 2016, a panel of the Grievance Commission reviewed this case and found probable cause to believe that Mathews had engaged in misconduct subject to sanction under the Maine Bar Rules. Thus, the Grievance Commission panel authorized Bar Counsel to prepare and present a formal disciplinary petition before a different panel of the Grievance Commission.
Mathews violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a)(d). As a consequence of her administrative suspension, she is not currently a licensed member of the Maine Bar, nor has she completed a change of status to inactive or withdrawn. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Mathews violated her duties to the legal system by failing to complete the annual registration requirements in 2015 and by failing to file the required notification affidavit once she was administratively suspended.
Ultimately, Mathews did file the affidavit as contemplated by M. Bar R. 4(K), indicating that she had not been practicing law, and that she had no actual clients at the time of her administrative suspension. As a result, it appears that there was no actual injury to any client, or the public resulting from Mathews? delay in filing her affidavit.
In sum, the evidence of misconduct supports the reviewing Panel?s findings, and Colleen A. Mathews agrees that she did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that Mathews? misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Mathews. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Mathews.
Therefore, the Panel concludes that the appropriate disposition of this case is the issuance of an ADMONITION, which is now hereby issued and imposed upon Colleen A. Mathews pursuant to M. Bar R. 13(e)(10)(B).
Dated: October 7, 2016
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Christopher D. Hardy, Esq.
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Docket No.: BAR-16-19
Issued by: Maine Supreme Judicial Court
Date: October 18, 2016
Respondent: Christopher D. Hardy, Esq.
Bar Number: 002636
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Jesse Bifulco is appointed the Receiver of the law practice of Christopher D. Hardy. As Receiver, Attorney Bifulco shall:
a. a report of his actions and the status of the Receivership at six month intervals; and
b. with the final report, a record of hours worked and disbursements made, in the event payment of legal fees at the State court appointment rate is requested. The assets of the law office of Attorney Hardy shall be the first method of compensation to the Receiver and his agents, although ultimately, the Receiver may elect to serve in a pro bono capacity or be compensated from another source (e.g., the estate of Attorney Hardy).
It is further Ordered Attorney Bifulco shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: October 18, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. John S. Jerabek, Esq.
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Docket No.: BAR-16-9
Issued by: Maine Supreme Judicial Court
Date: October 27, 2016
Respondent: John S. Jerabek, Esq.
Bar Number: 007699
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
Before the Court is a Petition for Discharge of the Receiver appointed by this Court to oversee the concluding of the law practice of John S. Jerabek, Esq. The Petition has been reviewed by Special Bar Counsel for the Board of Overseers of the Bar. The Board joins in the Petition for Discharge of the Receiver.
After consideration of the Court's Order Appointing Receiver, the Receiver's Report of October 18, 2016 and the Petition for Discharge, the Court finds:
Based upon the foregoing, the Court makes the following findings and reaches the following conclusions:
THEREFORE it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P.79(a).
Dated: October 27, 2016
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: GCF#15-063
Issued by: Grievance Commission
Date: November 10, 2016
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Reprimand
Disposition/Conduct: Communication, Responsibilities Regarding Nonlawyer Assistants, Bar Admission and Disciplinary Matters
M. Bar R. 13(e)
On September 26 and September 27, 2016, pursuant to due notice, Panel A of the Grievance Commission conducted a disciplinary hearing open to the public according to Maine Bar Rule 13(e), concerning the Respondent, Anthony P. Shusta II, Esq., of Madison, Maine. Panel members included Acting Chair Sarah McPartland-Good, Esq., Catherine L. Haynes, Esq., and Milton R. Wright, Public Member. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Respondent Anthony P. Shusta II, Esq., was present and was represented by William D. Robitzek, Esq. Complainant Alan T. Belanger was also present for both days of the hearing.
This proceeding was initiated by the filing of a Formal Disciplinary Petition by the Board of Overseers of the Bar dated April 21, 2016. Attorney Shusta filed a response through counsel dated May 25, 2016. Those documents are part of the Board's official record. The Board submitted Exhibits 1-21 and those exhibits were accepted by the panel at the hearing without objection. Attorney Shusta submitted Exhibits 1 and 2 at the hearing and those were accepted by the panel at the hearing without objection.
Respondent Anthony P. Shusta II, Esq., of Madison, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Shusta was admitted to the Maine Bar in 1985 and is currently practicing as a solo practitioner.
The events that led to this proceeding began in October of 2013 when Mr. Belanger was involved in a motor vehicle accident. Upon a recommendation from his brother, Mr. Belanger called Attorney Shusta regarding representation on a personal injury claim stemming from the accident.
Attorney Shusta and Mr. Belanger made an appointment for the afternoon of October 31, 2013. Attorney Shusta left the office before the appointment on October 31, 2013, and Mr. Belanger instead met with a paralegal who was new to handling personal injury claims and (according to her May 29, 2015 Affidavit) had only been working for Attorney Shusta since October 14, 2013 (hereinafter "Paralegal JP"). Attorney Shusta's receptionist, Tammy Gray, testified that she overheard Mr. Belanger telling Paralegal JP that he "almost died" in the accident "twenty times" during the meeting. She testified that he was "quite excited" and "wound up" during his meeting with Paralegal JP.
Paralegal JP completed a Personal Injury/Auto Accident Intake Sheet. She asked Mr. Belanger to sign documents, including two Contingency Fee Agreements that apparently did not contain the name of the client, did not describe the claim in paragraph 1, and did not list any additional legal fees in paragraph 3. Mr. Belanger testified that Paralegal JP did not explain the Contingency Fee Agreement to him and did not read it with him. He testified that Paralegal JP told him to "just sign it" and that he would "be in good hands." Mr. Belanger did not read the Contingency Fee Agreement. He signed one or more documents. Paralegal JP photocopied the Contingency Fee Agreement with his signature and no handwritten entries and gave it to Mr. Belanger for his records.
Mr. Belanger and Attorney Shusta met in person for the first time on February 4, 2015, after Attorney Shusta had negotiated a settlement with Progressive Insurance Company. Mr. Belanger testified that he was shocked when Attorney Shusta presented him with a Disbursement Sheet because he did not understand that Attorney Shusta would be entitled to take one third of any judgment or settlement before medical bills were deducted. In other words, Mr. Belanger thought that Attorney Shusta would be entitled to one third of the net amount collected after medical expenses were paid and not the gross amount collected. Mr. Belanger testified that this was never explained to him and Attorney Shusta testified that this was a misunderstanding.
Throughout the course of their attorney-client relationship, Mr. Belanger and Attorney Shusta and/or Paralegal JP had several communications regarding medical bills (including November 18, 2013, December 27, 2013, May 14, 2014, and October 21, 2014). Mr. Belanger testified that Attorney Shusta had told him to send the medical bills to him and that he would "take care of them." He testified that Attorney Shusta did not tell him that he would be responsible to pay the medical bills out of his portion of any settlement. Mr. Belanger testified that he expected that when bills came in, Attorney Shusta would thereafter contact the insurance company and make sure that they were paid. Mr. Belanger testified that he emphasized to Attorney Shusta that it was "extremely important" to him that his bills be paid because collection agencies were coming after him. This was another misunderstanding.
Attorney Shusta testified that he explained to Mr. Belanger that the medical providers should not be paid until after a settlement or verdict had been reached because it is possible to negotiate with medical providers on the amounts of their bills. Although Attorney Shusta testified that it is not possible to negotiate with Mr. Belanger's own ?med pay? carrier, the expert witness called by Attorney Shusta, Michael Welch, an attorney from Hardy, Wolf and Downing in Lewiston, testified that ?med pay? is negotiable and not necessarily dollar for dollar.
Mr. Belanger was also surprised when he saw the Disbursement Sheet on February 4, 2015, not only because he thought the medical bills had already been paid, but also because the monies Attorney Shusta had received from Mr. Belanger's own ?med pay? policy were not reflected. Attorney Shusta testified that this was an oversight.
Mr. Belanger filed a grievance complaint against Attorney Shusta with the Board of Overseers of the Bar on March 3, 2015. In his March 24, 2015, response to the grievance complaint, Attorney Shusta enclosed a copy of the Contingency Fee Agreement from his file. That version of the Contingency Fee Agreement had a client name and entries in paragraph 1 and paragraph 3 which had not been present when Mr. Belanger signed the document. In response to an inquiry from Bar Counsel about whether a document had been modified after his client had signed it, Attorney Shusta submitted two different sworn Affidavits from Paralegal JP. Attorney Shusta testified that he had dictated the May 29, 2015 Affidavit in which Paralegal JP states that the handwritten information had "somehow been deleted from the agreement Mr. Belanger submitted..."
Four months later in September of 2015 when leaving Attorney Shusta's employ, Paralegal JP made a passing remark to Attorney Shusta regarding having modified the Contingency Fee Agreement after Mr. Belanger had signed it and after she had given him a copy. At no time between September of 2015 and the hearing date of September 26, 2016, did Attorney Shusta notify the Board that he had submitted an Affidavit which he had discovered to be untrue. In fact, paragraph 23 of the Formal Disciplinary Petition alleges:
23. Attorney Shusta and his paralegal, Ms. *, have continuously claimed that no additional language was added or any changes ever made to the CFA after Mr. Belanger signed it on October 31, 2013.
In his Response to Disciplinary Petition in May of 2016, Attorney Shusta responds as follows:
23. Respondent admits that based on his representations from his paralegal, he was advised that the document provided in his response of March 24, 2015 had been executed by Mr. Belanger before Ms. *.
Attorney Shusta made no mention of the fact that Paralegal JP's Affidavit was untrue.
It was difficult for the panel to comprehend fully the pattern of communication between Mr. Belanger and Attorney Shusta, in part because Attorney Shusta does not routinely memorialize conversations with his clients or keep all phone message slips. Attorney Shusta testified that he has changed his practice such that he now returns client calls in the evening if he has not been able to return the client calls during the day. Attorney Shusta's telephone records were not introduced as an exhibit and so only Attorney Shusta's itemized bill, Mr. Shusta's file memos, and Mr. Belanger's telephone records could be examined for evidence of calls between Attorney Shusta's office and Mr. Belanger. Neither witness could recall dates and times of conversations. The Panel finds that there is insufficient evidence of a lack of communication between Mr. Belanger and Attorney Shusta and his office. Except for a period surrounding Thanksgiving of 2014, the evidence shows that Attorney Shusta and his office were in regular contact with Mr. Belanger.
Likewise, the Panel does not find that Attorney Shusta violated any of the Maine Rules of Professional Conduct as it relates to the settlement offer he negotiated with Progressive Insurance. The evidence shows that Attorney Shusta did what was necessary to obtain an offer which was in a reasonable settlement range.
The Panel does have three areas of concern about Attorney Shusta's conduct that raise questions under the Rules of Professional Conduct:
The Panel acknowledges that the alterations to the contingency fee agreement made by Paralegal JP do not pertain to the net vs. gross point of contention, but this Affidavit and Attorney Shusta's submission to the Board cast doubt on the veracity of Mr. Belanger's claims with respect to the contingency fee agreement he actually received. Attorney Shusta became aware that Mr. Belanger's claims with respect to the contingency fee agreement he received were true a full 12 months before the hearing in this matter at which he informed the Board that he had submitted an Affidavit that was false. Attorney Shusta testified that he did not share the fact that Paralegal JP's Affidavit was false because he ?didn't really think about it.? The Panel finds that Attorney Shusta is responsible for the conduct of Paralegal JP (which would be a violation of the Rules of Professional Conduct if engaged in by a lawyer) because his failure to correct the false submission and his inaccurate filings with the Board amount to a ratification of the conduct involved pursuant to Rule 5.3(c)(1).
The Panel also finds that Attorney Shusta had a duty pursuant to Rule 8.1(b) to disclose a fact necessary to correct the misapprehension caused by his paralegal's false Affidavit and his submissions to the Board. Because Attorney Shusta failed to do so, he caused the initial Grievance Panel to review false evidence, Mr. Belanger stood unfairly accused of having altered a signed contract, and the Board had to prepare to prove an element of its case unnecessarily. All of this could have been prevented if Attorney Shusta had come forward when he learned that he had submitted false testimony.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. The Board established by a preponderance of the evidence that Attorney Shusta has violated those rules. The panel finds that Attorney Shusta?s misconduct subject to sanction was not minor and that there clearly was injury to his client, the legal system and the profession. A majority of the panel concludes that the appropriate sanction in this matter is the issuance of a public Reprimand, which is now hereby issued and imposed upon Anthony P. Shusta II, Esq., pursuant to Maine Bar Rule 13(e)(10)(C).
Date: November 10, 2016
Sarah McPartland-Good, Esq., Acting Panel Chair
Catherine L. Haynes, Esq., Panel Member
I agree with the Panel in all respects, except that I believe that Attorney Shusta?s conduct warrants a period of probation. I base this upon the manner in which he treated his client and conducted himself in these proceedings. He did not take the time to explain the Contingency Fee Agreement or payment of medical bills to the extent that was reasonably necessary to permit Mr. Belanger to make informed judgments regarding the representation. He was reprimanded by the Board of Overseers of the Bar for an issue relating to a fee agreement in 2013, just six months before he instructed a paralegal who had been with his office a very short time to meet with a client and obtain a signature on a Contingency Fee Agreement. I find this prior disciplinary record to be an aggravating factor. Attorney Shusta allowed his own client to stand unfairly accused of altering a contract after it was signed when he could have corrected the record a full year prior to the hearing in this matter. His submissions to the Board contain matters that are untrue. I did not find him to be a credible witness. His misconduct harmed his client, but also the public and the legal profession. At the hearing, Attorney Shusta showed no recognition of this misconduct and harm, and certainly no remorse. I believe that probation would protect the public and that is the sanction I find most suitable.
Milton R. Wright, Public Member
Board of Overseers of the Bar v. In Re Elizabeth M. Brogan
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Docket No.: BAR-16-21
Issued by: Maine Supreme Judicial Court
Date: November 10, 2016
Respondent: Elizabeth M. Brogan
Bar Number: 003671
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement
M. Bar R. 4(i) & 29
Elizabeth M. Brogan has petitioned for reinstatement to the Bar of the State of Maine. Bar Counsel has stipulated to Ms. Brogan's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Ms. Brogan's Petition for Reinstatement and, based on her representations that she has satisfied the applicable provisions of that Rule, determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Elizabeth M. Brogan, Bar# 003671, is hereby reinstated to the Bar of the State of Maine with all the corresponding rights and responsibilities.
Dated: November 10, 2016
Chief Justice Leigh I. Saufley
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Martha D. Kelley
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Docket No.: BAR-16-24
Issued by: Maine Supreme Judicial Court
Date: November 16, 2016
Respondent: Martha D. Kelley
Bar Number: 007310
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement
M. Bar R. 4(i) & 29
Martha D. Kelley has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Ms. Kelley's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Ms. Kelley's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Martha D. Kelley, Bar #007310, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: November 16, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Seth T. Carey, Esq.
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Docket No.: BAR-16-15
Issued by: Maine Supreme Judicial Court
Date: November 21, 2016
Respondent: Seth T. Carey, Esq.
Bar Number: 009970
Order: Order
Disposition/Conduct: Order superseding 2/2/2016 Report of Findings and Order
Sanction: Suspended Suspension with Conditions
Violations: M.R.P.C. 1.1, 1.3, 3.3(a)(3), (b), & 8.4(a), (d)
M. Bar R. 13(g)
This disciplinary matter was initiated by the Board of Overseers of the Bar through the filing of three separate disciplinary informations dated June 15, July 8 and August 8, 2016, pursuant to Maine Bar Rule 13(g). Attorney Seth T. Carey filed his answer to each information on July 28, August 8 and September 1, 2016, respectively.
After due notice, the Court conducted a disciplinary proceeding on November 21, 2016. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis and Deputy Bar Counsel Aria Eee. Attorney Carey appeared as his own counsel.
The parties have participated in a judicial settlement conference and have agreed to the entry of this negotiated Order identifying Attorney Carey?s misconduct and the resulting sanctions imposed by the Court.
Based upon the parties? negotiated agreement, and after hearing through Bar Counsel from the respective complainants (as applicable), Attorney Carey, and the Board, the Court issues the following Order:
A. Judge Maria Woodman
Attorney Seth T. Carey was admitted to the Maine Bar on May 24, 2006, and is currently engaged in private practice in Rumford, Maine. Attorney Carey is also licensed to practice law in Massachusetts and Connecticut.
In late 2014, Judge Maria Woodman1 filed a grievance complaint concerning her and other jurists' observations of Attorney Carey's repeated incompetence in court matters. Both in the complaint and later during the testimonial evidence presented at the proceeding before the Board?s Grievance Commission under M. Bar R. 13(e), four jurists recounted their experiences, observations, and concerns about Attorney Carey?s lack of core competence. Throughout the complaint investigation and the subsequent disciplinary proceeding, Attorney Carey has been adamant that the jurists? accounts were inaccurate and that they had colluded in a conspiracy against him. Although he may continue to disagree with the jurists? testimony, Attorney Carey wishes to move forward in his legal career. He has determined to set aside his disagreements and accept that multiple jurists have found his skills to be inadequate. Attorney Carey agrees that the testimony of the four jurists at the preliminary hearing before the Grievance Commission comprises sufficient evidence for this Court to find that he has demonstrated a lack of core competence in the handling of his clients? respective litigation matters. Based upon that admission, the Court finds that Attorney Carey has at times failed to follow applicable rules, procedures and directives issued by the trial courts referenced above.
As detailed within the facts set forth herein, the Court finds that Attorney Carey engaged in violations of the following Maine Rules of Professional Conduct: 1.1; 1.3; 3.3(a)(3); 3.3(b); 8.4(a); and 8.4(d).
B. Dr. Matthew Donovan
In May 2015, Dr. Matthew Donovan filed a grievance complaint against Attorney Carey.2 In his capacity as a Section 312 Examiner appointed by the Maine Workers? Compensation Board (MWCB), on May 15, 2014 Dr. Donovan performed an independent medical examination (IME) of Attorney Carey?s client, Richard T. That examination concerned Richard T.?s claim of a work related low back injury.
Dr. Donovan then issued an IME report, dated May 15, 2014, in which he concluded and found that Richard T. had regained full work capacity as of an earlier date. Dr. Donovan further opined that Richard T. had only a 5% whole person impairment for his low back and lower extremity condition. At Richard T.?s request, the MWCB permitted the supplementation of records to be provided to Dr. Donovan. The Court?s understanding from the record is that MWCB Hearing Officer Goodnough authorized such a supplementation so that Dr. Donovan could determine whether the additional information would affect or in any way change his opinion of Richard T.?s medical condition and ability to work. The documents provided by Attorney Carey for Dr. Donovan?s review, however, did not contain any new medical records. Thereafter, on October 2, 2014, Dr. Donovan issued an IME supplemental report that included the following statement: ?Comparing the index of records received today to those received initially there are no new encounter dates noted. Dates of treatment are exactly equal. Therefore, my opinion remains unaltered.? By an October 6, 2014, ?Order Denying New Section 312 Examination and Granting Motion to Depose Dr. Donovan,? Hearing Officer Goodnough authorized both parties to ?bring relevant additional records to the deposition (if they exist, even if generated after the initial April 15, 2014 exam) and ask Dr. Donovan questions about them so long as such records are exchanged by the parties, and provided to Dr. Donovan?s office within 14 days of the date of the deposition.? The deposition of Dr. Donovan was scheduled to occur on February 26, 2015. Despite the specific requirements of the October 6, 2014 Order, Attorney Carey did not forward additional medical records to Dr. Donovan until February 22, 2015 (a Sunday). In addition, Attorney Carey failed to contemporaneously send or provide any copies of those records to opposing counsel. Attorney Carey?s client did not prevail in his claim before the MWCB. In his decision denying the client?s claim, Hearing Officer Goodnough made the following findings:
10. I find and conclude that the employee failed to prove he has remained partially or totally incapacitated on account of his work injury following his termination. This finding is consistent with Dr. Donovan?s report and testimony and the medical record as a whole. It is not consistent with Dr. Esponette?s report. However, because Dr. Esponette?s report was not provided to Dr. Donovan in a manner consistent with the October 6, 2014 procedural Order discussed above, it cannot be considered clear and convincing contrary evidence.
Within his complaint against Attorney Carey, Dr. Donovan expressed concern regarding Attorney Carey?s conduct both in preparation for and during the deposition. Attorney Carey has asserted that the doctor?s complaints about him were filed in retaliation for a complaint made by his clients about the doctor to the Board of Registration of Medicine. He acknowledges, however, that in his April 21, 2015 decision, Hearing Officer Goodnough specifically found that Attorney Carey had failed to make certain that the additional medical reports were available to Dr. Donovan, and that he ?asked many questions [at Dr. Donovan?s deposition] concerning various medical reports, documents, and affidavits that had not previously been admitted into evidence.?
Attorney Carey?s failure to timely provide the necessary medical documents to Dr. Donovan constituted violations of M.R. Prof. Conduct 1.1[competence] and 1.3 [diligence].
C. Attorney Bernard J. Kubetz
In his role as legal counsel for Bangor Savings Bank (BSB), on or about January 25, 2016, Attorney Bernard J. Kubetz filed a grievance complaint against Attorney Carey.3 BSB had contacted Attorney Kubetz concerning Attorney Carey?s handling of his IOLTA (Interest on Lawyer?s Trust Account) account maintained at the bank. Attorney Carey established that IOLTA account in 2013, and listed himself as the sole authorized owner of that account.
Within his complaint, Attorney Kubetz detailed several account irregularities associated with Attorney Carey?s IOLTA account. Multiple checks had been drawn on Attorney Carey?s account that did not fall within the intended and limited use of an IOLTA account as provided in M. Bar R. 6 and M.R. Prof. Conduct 1.15. Those checks demonstrated that Attorney Carey used his IOLTA account to improperly make payments for both personal and professional expenses during the course of many months. In his response to Bar Counsel, Attorney Carey described that misuse as his ?mistakes,? and explained that he had earned (or nearly earned) all monies present in the account. Even if that explanation is accurate, Attorney Carey admits that he failed to abide by the rules governing client trust accounts. This failure is troubling because, as an attorney licensed for more than ten years, Attorney Carey knew or should have known that he could not commingle funds or draw upon his IOLTA account for personal and other non-client expenses. If Attorney Carey had indeed earned all of the funds, he should have transferred the earned funds into his operating account. Had Attorney Carey done so, he would have been able to pay those non-client expenses in a manner consistent with the Maine Rules of Professional Conduct. The Court finds that, at a minimum, Attorney Carey?s conduct reflects improper bookkeeping and business practices in violation of M.R. Prof. Conduct, Rule 1.1 [competence]. Should such conduct continue, the Court will have to conclude that Attorney Carey?s misuse of his IOLTA account demonstrates at best a reckless disregard of the regulations governing, and the important function served by client trust accounts.
The Court notes that Attorney Carey has previously been sanctioned for misconduct, some of which is similar to the instant matters and some of which is unrelated to those concerns. See two Orders of Suspension, February and October 2009, respectively.
Pursuant to the parties? submitted proposal as supplemented by the Court, it is now hereby ORDERED as follows: Attorney Seth T. Carey is suspended from practicing law in Maine for two years, with all of that suspension being suspended, subject to Conditions #1 through #28 as set forth below. The Court urges Attorney Carey to use the two year period of suspended suspension with monitoring to seek guidance and accept direction from his monitoring colleagues on issues of office management, client and court communication, and litigation strategy, and to discuss with MAP and his monitors how to appropriately engage with the Maine bench and bar so that he may effectively represent his clients. In that regard, the Court issues the following conditions of Attorney Carey?s suspended suspension, which becomes effective seven days following the issuance of this Order.
Dated: November 21, 2016
G. Arthur Brennan
Active Retired Justice
Maine Superior Court
1At the time her complaint was filed, December 2014, Judge Woodman was a Family Law Magistrate.
2Given the pendency of the Board?s information resulting from Judge Woodman?s grievance complaint, the Board filed its information in Dr. Donovan?s matter directly with the Court without any hearing before the Grievance Commission. See M. Bar R. 13(d)(6).
3This matter is before the Court under M. Bar R. 13(d)(6), as discussed above in footnote 2.
Board of Overseers of the Bar v. In Re Andrews Bruce Campbell, Esq.
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Docket No.: 2:16-cv-413-NT
Issued by: United States Chief District Judge
Date: December 1, 2016
Respondent: Andrews Bruce Campbell, Esq.
Bar Number: 001344
Order: Reinstatement Denied
Disposition/Conduct: Reinstatement Denied
Mr. Campbell has a long history of bar disciplinary actions, which are detailed in numerous bar disciplinary opinions. There is no need for me to recount that record here, but for a chronicle of events occurring before 2000 interested readers can consult Board of Overseers of the Bar v. Andrews Bruce Campbell, Docket No. Bar 98-1 (Me. 1999), Suffice it to say that Mr. Campbell was suspended from practice in the State of Maine in December of 1987, ultimately disbarred from practice altogether, reinstated with conditions, and finally reinstated without conditions in July of 2001.
In the last 15 years or so, Mr. Campbell has continued to have difficulties related to his understanding of, and ability to follow, the ethical rules for the practice of law in Maine. Since his 2001 reinstatement, Attorney Campbell has been reprimanded on two occasions by Grievance Commission Panels. A 2006 reprimand resulted from Mr. Campbell's failure to clarify that he did not represent an individual and his failure to return that individual's original documents in a timely manner. Me. Grievance Comm'n, Docket No. GCF-04-185 (March 28, 2006). A 2010 reprimand resulted from Mr. Campbell's failure to appropriately account for funds received from his client and the failure to maintain accurate records of the personal property he and his associate removed from the client's home. Me. Grievance Comm'n, Docket No. GCF-08-280 (April 13, 2010).
Most recently, Mr. Campbell was suspended from the practice of law in the Maine Courts on November 1, 2015. On November 18, 2015, I imposed a corresponding suspension for the Federal District Court for the District of Maine. The 2015 suspensions followed complaints from three different individuals. Mr. Campbell and the Board of Overseers of the Bar stipulated to the facts underlying the grievance filings and a finding that the facts constituted violations of Rules 3.1(a), 3.2(f), 3.4(b), 1.4(c), 3.4(d) and 3.4(f) of the then-applicable Maine Bar Rules and Rules l.8(c), 1.9(a), 1.9(c) , 3.7, 8.4(a) and 8.4(d) of the Maine Rules of Professional Conduct. The parties also agreed to the form and terms of the six-month sanction that Justice Alexander ultimately accepted. Generally, Mr. Campbell's violations involved self dealing and various conflicts of interest, but a more thorough recitation of his conduct can be found at Board of Overseers of the Bar v. Andrews Bruce Campbell, Docket No. Bar 14-8, at 15-17. Mr. Campbell's six month Maine suspension was ordered to "end without further action by the Court on May 1, 2016." Id. at 22.
Mr. Campbell has now moved for reinstatement to the bar of this Court. Motion for Reinstatement (ECF No.1). Unlike the Maine Bar Rules which allow a more-or-less automatic reinstatement for suspensions of six months or less, see Me. Bar. Rule 28, the Local Rules for the District of Maine require, for suspensions of more than three months, that the Court hold a hearing to determine whether a petitioner seeking reinstatement has demonstrated ''by clear and convincing evidence that [he] no longer has any incapacity and possesses the moral qualifications, competency and learning in the law required for admission to practice law before this Court and that [his] resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive of the public interest." D. Me. Loc. R. 83.3(g)(3).
I held a hearing on November 14, 2016, at which counsel for the Board of Overseers of the Bar did not object to Mr. Campbell's reinstatement. Mr. Campbell, who was represented by counsel, testified about the circumstances of his most recent ethical missteps and explained that he now recognizes what the rules require in those circumstances. While it is laudable that Mr. Campbell has learned from his mistakes, this method of learning the rules by violating them leaves much to be desired. I want to ensure that Mr. Campbell fully understands his ethical obligations before he is readmitted to practice in this Court.
Accordingly, I DENY the Motion for Reinstatement without prejudice at this time. Mr. Campbell may reapply for reinstatement to the bar of this Court if and when he is able to demonstrate that he has taken and achieved what would constitute a passing score in the State of Maine on the Multi-State Professional Responsibility Examination.
SO ORDERED.
Dated this 1st day of December, 2016.
Nancy Torresen
United States Chief District Judge
Board of Overseers of the Bar v. Jay H. Otis
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Docket No.: BAR-13-7
Issued by: Maine Supreme Judicial Court
Date: December 1, 2016
Respondent: Jay H. Otis
Bar Number: 002941
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32(c)
This matter was heard by the undersigned Justice of the Court, upon a Petition of the Board of Overseers of the Bar (?the Board?) to Discharge Roberta E. Winchell as Receiver of the law practice of Jay H. Otis (?Mr. Otis?). The Board represents it provided copies of its Petition and the Final Report of the Receiver to Mr. Otis. No hearing was requested by the Board, the Receiver or Mr. Otis. As 21 days has passed since the filing of the Petition, pursuant to M. R. Civ. P. 7(c) opposition to the Petition is deemed waived. Therefore the Court makes the following findings, and enters the following orders:
Accordingly, it is ORDERED:
The Clerk is directed to incorporate this Order by reference upon the docket.
Dated: December 1, 2016
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Peter T. Dawson, Esq.
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Docket No.: BAR-13-1
Issued by: Maine Supreme Judicial Court
Date: December 1, 2016
Respondent: Peter T. Dawson, Esq.
Bar Number: 000294
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Me. Bar Rule 32(c)
Before the Court is a Petition for Discharge of the Receiver appointed by this Court to oversee the concluding of the law practice of Peter T. Dawson, Esq. The Petition is joined by Special Bar Counsel Paul Chaiken on behalf of the Overseers of the Bar. After consideration of the Court's Order Appointing Receiver, the Receiver's Report of Services Rendered, and the Petition for Discharge, the Court finds:
Based upon the foregoing, the Court makes the following findings and reaches the following conclusions:
THEREFORE it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference.
Dated: December 1, 2016
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Diane M. Edgecomb, Esq.
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Docket No.: BAR-15-8
Issued by: Maine Supreme Judicial Court
Date: December 1, 2016
Respondent: Diane M. Edgecomb, Esq.
Bar Number: 007169
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
By joint Petition for Discharge, Marsha Traill Weeks and Board of Overseers of the Bar, through its Special Counsel, have averred:
The Court accepts the averments as set forth in the Petition for Discharge. The Court finds the actions taken by the Limited Receiver are approved. The Court further finds the plan for disposition of the client files is appropriate. Marsha Weeks Traill is discharged as Limited Receiver of the law practice of Diane M. Edgecomb.
The Court extends its gratitude to Attorney Weeks Traill for her efforts in protecting the clients of and closing the law office of Diane M. Edgecomb.
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P. 79(a).
Date: December 1, 2016
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Emily Drake Dickinson
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Docket No.: BAR-16-26
Issued by: Maine Supreme Judicial Court
Date: December 2, 2016
Respondent: Emily Drake Dickinson
Bar Number: 003102
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement
Upon the Petition of Emily Dickinson for reinstatement as an active Maine attorney from inactive status, Ms. Dickinson's Petition is now GRANTED without hearing.
Effective immediately, Emily Dickinson is HEREBY reinstated to active status in the Bar of the State of Maine with all the rights and responsibilities relating thereto.
Dated: December 2, 2016
Joseph M. Jabar
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Darrick X. Banda, Esq.
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Docket No.: GCF#16-043
Issued by: Grievance Commission
Date: December 19, 2016
Respondent: Darrick X. Banda, Esq.
Bar Number: 009329
Order: Admonition
Disposition/Conduct: Dealing with Unrepresented Person
M. BAR R. 13(e) and 21(b)(5)
On December 19, 2016, with due notice and pursuant to Maine Bar Rule 1.3(e)(7), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Darrick X. Banda, Esq. This disciplinary proceeding commenced on October 20, 2016 by the Board of Overseers of the Bar?s (Board) filing of a Stipulated Disciplinary Petition.
At that hearing, Attorney Banda was represented by Attorney James M. Bowie, and the Board was represented by Bar Counsel J. Scott Davis. The complainant, District Attorney Andrew Robinson had been provided by Bar Counsel Davis with a copy of the parties? proposed Stipulated Report and was not present at that proceeding.
Having reviewed the stipulated, proposed findings within that report as presented by counsel, the Panel makes the following disposition:
Respondent Darrick X. Banda, Esq., of Augusta, Maine, was at all times relevant hereto an attorney duly admitted to the practice of law in Maine subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Banda was admitted to the Maine Bar in 2002 and at the time of the relevant events, he was a sole practitioner with a law office located in Augusta, Maine.
According to the parties? stipulations, the Panel finds the following relevant facts:
This complaint was filed by Prosecutorial District Three District Attorney Andrew Robinson regarding the conduct of defense counsel Darrick Banda, a former criminal prosecutor in District Four (Augusta/Skowhegan).
DA Robinson complained concerning the manner in which Banda contacted and spoke with Savannah C, the victim in the then-pending domestic violence (DV) Assault charge against Banda?s client, Andrew S.
On December 18, 2015 Banda telephoned and spoke with Savannah shortly after she had just met with an Assistant District Attorney (ADA) in Robinson?s office to review that pending DV Assault case. Banda?s comments with Savannah included the different manners in which it might be resolved. Such a discussion was certainly proper and appropriate for Banda to engage in with Savannah, as the facts indicate she was willing to do so. In that telephone discussion with Savannah, Banda discussed and explained the results and ramifications of her not testifying for the State (the prosecutor) against Andrew, both under subpoena and without a subpoena. In that discussion, Banda provided Savannah with legal information concerning her appearance as a witness against his client, Andrew.
From that discussion, Savannah was also informed by Banda about the likely result with Andrews? charges if she was not subpoenaed and did not appear at court, i.e. that the case would be dismissed because the State would not be able to proceed without her testimony.
In his initial response to Bar Counsel Davis? investigative inquiry, Banda agreed that as part of his discussion with Savannah, he explained her Fifth Amendment rights under the facts of the case. Banda?s comments to Savannah included his clarification to her ?that (because) she did not have a good faith basis to invoke her right to remain silent, she would have a legal obligation to appear and answer questions truthfully if she were in fact subpoenaed to testify.? In addition, Banda also agrees that he informed Savannah that from his analysis of the case he did not think she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.
Such comments constituted ?legal advice? by Banda to an unrepresented person that had legal interests adverse to those of his client, Andrew. Although Banda may have intended to interview Savannah in preparation for defending the charge against Andrew, under the actual facts in this matter he crossed into the prohibited realm of providing ?legal advice to an unrepresented person,? as prohibited by M. R. Prof. Conduct 4.3.
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients, the legal profession and to the courts. Due to Banda?s above-outlined failure to properly comply with the safeguards required by Rule 4.3, a sanction is required under the Maine Bar Rules. The panel notes that Banda has no prior sanction record with the Board and has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Banda expressed his remorse for his violation of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Banda agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, the Panel finds under M. Bar R. 21(b)(1) that this was a minor violation; there was little or no injury caused to a client, the public, the legal system or the profession; and there is little likelihood of repetition by Banda. As a result, the Panel finds and agrees that an admonition serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Banda?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a public admonition to Darrick X. Banda, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(b)(1).
Date: December 19, 2016
Teresa M. Cloutier, Esq., Acting Chair
Carolyn A. Silsby, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. In Re Ernest J. Babcock
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Docket No.: BAR-16-27
Issued by: Maine Supreme Judicial Court
Date: December 27, 2016
Respondent: Ermest J. Babcock
Bar Number: 001260
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement
M. Bar R. 4(i) & 29
Ernest J. Babcock has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Mr. Babcock's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Mr. Babcock's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Ernest J. Babcock, Bar #001260, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: December 27, 2016
For the Court,
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Stanley E. Sproul
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Docket No.: BAR-16-6
Issued by: Maine Supreme Judicial Court
Date: December 27, 2016
Respondent: Stanley E. Sproul
Bar Number: 001810
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
Before the Court is a Petition for Discharge of Receiver Lester F. Wilkinson, Esq., who was appointed by this Court to oversee the concluding of the law practice of Stanley E. Sproul, Esq. The Petition was submitted by Special Bar Counsel for the Board of Overseers of the Bar.
After consideration of the Court?s Order Appointing Receiver, the Receiver?s Report of December 2, 2016, and the Petition for Discharge, the Court finds:
Upon motion of Paul Chaiken, Special Bar Counsel to the Maine Board of Bar Overseers, the Court appointed Lester F. Wilkinson, Esq., as Receiver of the law practice of Stanley E. Sproul, Esq. for the purpose of obtaining possession of files belonging to the clients and former clients of Stanley E. Sproul, securing funds held in Stanley E. Sproul?s operating and trust accounts, obtaining Stanley E. Sproul?s trust account records, and protecting the interests of the clients and/or former clients of Stanley E. Sproul, Esq.
Lester F. Wilkinson, Esq., Receiver of the law practice of Stanley E. Sproul, Esq., has taken necessary and reasonable steps to fulfill his obligations as Receiver of the law practice of Stanley E. Sproul, Esq. He attempted to return client files to their rightful owners. He determined the law office of Stanley E. Sproul was not holding client funds in any IOLTA or trust account.
Lester F. Wilkinson, Esq. has reviewed Stanley E. Sproul?s client files. He generated an inventory of the client files and has provided that inventory to Special Bar Counsel. There were no open or current client files. No clients of the law office of Stanley E. Sproul sought to pick up their files or documents, despite the Receiver?s reasonable efforts to provide them notice that they should do so. As all of the files were eligible for destruction, the Receiver disposed of the files.
Lester F. Wilkinson seeks no compensation for his work as Receiver. He does not seek reimbursement for out of pocket expenses he incurred in connection with his service as a Receiver.
Based upon the foregoing, the Court makes the following findings and reaches the following conclusions:
Lester F. Wilkinson, Esq., Receiver of the law practice of Stanley E. Sproul, Esq., has taken all reasonable steps to discharge his obligations as Receiver of the law practice of Stanley E. Sproul, Esq., to return all client files, to arrange for the secure retention and destruction of those client files, and to confirm that Stanley E. Sproul held no unearned client funds at the time of his death.
THEREFORE it is hereby ORDERED:
The actions of Lester F. Wilkinson, as Receiver of the law practice of Stanley E. Sproul, as described in the Report of the Receiver, are approved;
Lester F. Wilkinson, Esq. is discharged as Receiver of the law practice of Stanley E. Sproul, Esq.
The Court extends it gratitude to Attorney Wilkinson for his efforts in protecting the clients of and closing the law office of Stanley E. Sproul, Esq.
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P. 79(a).
Dated: December 27, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. David M. Blumenthal
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Docket No.: BAR-16-23
Issued by: Maine Supreme Judicial Court
Date: December 27, 2016
Respondent: David M. Blumenthal
Bar Number: 007917
Order: Suspension
Disposition/Conduct: Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts; Responsibilities Regarding Nonlawyer Assistants; Misconduct
This Court has received a certified copy of the October 6, 2016 Order of Term Suspension/Stayed issued by the Commonwealth of Massachusetts Supreme Judicial Court. The Order suspended David M. Blumenthal for his violations of the Massachusetts Rules of Professional Conduct. Specifically those violations include failing to keep complete IOLTA account records including receipt, maintenance, and distribution of those funds.
In this reciprocal discipline action filed by the Maine Board of Overseers of the Bar, Mr. Blumenthal has filed no response to this Court's November 17, 2016 Order and Notice. That Order provided Mr. Blumenthal an opportunity to show cause why the Court should not impose identical discipline to that imposed upon him in Massachusetts.
Upon consideration of the Board's Petition for Reciprocal Discipline and Mr. Blumenthal's lack of objection to an identical suspension in Maine, it is hereby ORDERED as follows:
Dated: December 27, 2016
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Janet C. McCaa, Esq.
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Docket No.: BAR-16-13
Issued by: Maine Supreme Judicial Court
Date: December 30, 2016
Respondent: Janet C. McCaa, Esq.
Bar Number: 003594
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Me. Bar Rule 32(c)
Before the Court is a Petition for Discharge of the Co-Receivers appointed by this Court to oversee the concluding of the law practice of Janet C. McCaa, Esq. The Petition has been reviewed by Special Bar Counsel for the Board of Overseers of the Bar. The Board joins in the Petition for Discharge of the Co-Receivers.
After consideration of the Court?s Order Appointing Receivers, the Co-Receivers? Final Report and the Petition for Discharge, the Court finds:
Based upon the foregoing, the Court makes the following findings and reaches the following conclusions:
THEREFORE it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P. 79(a).
Dated: December 30, 2016
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Teresa A. Curtin
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Docket No.: BAR-16-22
Issued by: Maine Supreme Judicial Court
Date: January 19, 2017
Respondent: Teresa A. Curtin
Bar Number: 009391
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement
M. Bar R. 4(i) & 29
Teresa A. Curtin has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Ms. Curtin's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Ms. Curtin's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Teresa A. Curtin, Bar# 009391, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: January 19, 2017
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Valeriano Diviacchi
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Docket No.: BAR-16-2
Issued by: Maine Supreme Judicial Court
Date: January 19, 2017
Respondent: Valeriano Diviacchi
Bar Number: 006975
Order: Suspension
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
This matter was initiated based upon a referral to Maine Bar Counsel by the General Counsel of the Massachusetts Board of Bar Overseers on December 18, 2015 then providing Maine Bar Counsel with the Order of Term Suspension imposed by a Single Justice of the Massachusetts Supreme Judicial Court, In re Valeriano Diviacchi, on December 3, 2015.
Valeriano Diviacchi was admitted to the Maine Bar on May 1, 1990; however, he was registered as a non-resident attorney and practiced law in Massachusetts. On May 1, 2015, prior to the effective date of the current revised Maine Bar Rules, he withdrew from his active non-resident status in the State of Maine. Pursuant to current Maine Bar Rule 4, he is currently on "inactive" status in the State of Maine, and is eligible for administrative reinstatement to active status pursuant to the provisions of M. Bar R. 4(j).
On January 14, 2016 the Maine Board of Overseers of the Bar filed a Petition for Reciprocal Discipline pursuant to M. Bar R. 26(c) seeking the imposition of a twenty seven (27) month period of suspension from the practice of law upon Defendant Diviacchi, as discipline substantially identical in Maine to the discipline imposed under the December 3, 2015 Massachusetts Order.
On February 3, 2016, this Court ordered that Defendant Diviacchi inform it in writing of any claim by him that imposition by this Court of a discipline substantially identical to that imposed by the Commonwealth of Massachusetts would be unwarranted and the reasons therefore within 30 days of service of this Court's order upon him. By letter dated January 29, 2016, Bar Counsel served that Order on Defendant Diviacchi by regular mail pursuant to M. Bar R.15.
Defendant Diviacchi notified this Court on February 22, 2016 that he had entered an appeal of the twenty seven (27) month suspension imposed upon him by the Single Justice of the Massachusetts Supreme Judicial Court. On May 9, 2016, this Court deferred further action pending resolution of Defendant Diviacchi's appeal by the Massachusetts Supreme Judicial Court.
On November 2, 2016, the Supreme Judicial Court of Massachusetts issued its opinion denying Respondent Diviacchi's appeal. (See In the Matter of Diviacchi, 475 Mass. 1013). On November 7, 2016, Defendant Diviacchi filed an objection to the decision seeking a rehearing; however on December 2, 2016 the Massachusetts Supreme Judicial Court denied his petition for rehearing, and the original Order of Term Suspension is now final.
Accordingly, pursuant to M. Bar R. 26(e), it is hereby ORDERED as follows:
DATED: January 18, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Aaron Fethke, Esq.
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Docket No.: BAR-16-11
Issued by: Maine Supreme Judicial Court
Date: January 30, 2017
Respondent: Aaron Fethke, Esq.
Bar Number: 009642
Order: Suspended Suspension
Disposition/Conduct: Misconduct
M. Bar R. 13(g)(4)
This disciplinary matter concerns a grievance Complaint filed by John D. Pelletier, Esq. against Attorney Aaron Fethke of Searsport, Maine. It is now before the Court by agreement as a result of an Information filed by the Board of Overseers of the Bar on July 7, 2016 pursuant to M. Bar R. 13(g)(1).
A hearing was conducted at the Cumberland County Superior Court in Portland, Maine on January 27, 2017. At the hearing, the Board of Overseers was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Fethke was present and represented by Attorney James M. Bowie, Esq. The parties stipulated to the following facts that led to the grievance filings and to a finding that those facts constitute Attorney Fethke's violation of specific portions of the Maine Rules of Professional Conduct. The parties also agreed to the form and parameters of the sanction to be imposed by the Court based upon Fethke's admitted violations of Rule 8.4(a)(c)(d) of the Maine Rules of Professional Conduct. Prior to that hearing, Complainant John D. Pelletier, Esq. was notified by Bar Counsel of the parties' proposed stipulation and sanction. Attorney Pelletier was present for the hearing, and both Attorney Pelletier and Attorney Fethke testified before the court.
The parties agree and the Court so finds that Attorney Fethke's actions were in violation of the Maine Rules of Professional Conduct and the Maine Bar Rules as follows:
8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
Based upon the above-outlined findings and conclusions, and subject to the conditions and requirements set forth in this Order and Decision, Attorney Fethke is suspended from practicing law in Maine for four months, with that suspension being suspended for a period of one year commencing immediately. The following special conditions will apply to Attorney Fethke for the period that his suspension is suspended:
Dated: January 30, 2017
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: GCF#15-291
Issued by: Grievance Commission
Date: February 28, 2017
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On February 28, 2017, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, Anthony P. Shusta II, Esq. This disciplinary proceeding had been commenced by the filing of a formal Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 21, 2016.
At the hearing, Attorney Shusta was represented by William D. Robitzek, Esq. The Board was represented by Assistant Bar Counsel Alan P. Kelley. Complainant Loralie M. Spooner Esq. did not attend the hearing but was provided with a copy of the proposed order in advance of the hearing. Prior to that date, the parties negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected and the office of Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Dated: February 28, 2017
Sarah McPartland-Good, Esq., Acting Panel Chair
Catherine L. Haynes, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Eliot Field, Esq.
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Docket No.: BAR-17-2
Issued by: Maine Supreme Judicial Court
Date: February 27, 2017
Respondent: Eliot Field, Esq.
Bar Number: 001680
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, David B. Soule, Jr., Esq., is appointed Receiver for final closing of the law practice of Eliot Field. Pursuant to this Order, Attorney Soule shall:
As a service to the bar, Attorney Soule may serve as Receiver for the Field law office on a pro bono basis. However, Attorney Soule shall submit a semi-annual written report to the Court, copied to the Board?s Special Counsel, containing a record of time worked and disbursements made in this matter. The law office of Eliot Field shall be the first choice for source of payment for the disbursements and any legal fees (at the state court appointment rate) sought by the Receiver. If insufficient assets are available from the law office, the Board of Overseers may be an alternate payment source for expenses related to the law office closure.
Attorney Soule shall act as Receiver until discharged by the Court in accordance with M. Bar R 32(c).
Attorney Soule so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Attorney Soule may be engaged by any former client of Eliot Field provided that the client is informed in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver?s employment by the client. Attorney Soule is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client?s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of Attorney Soule?s appointment by this Order. Attorney Soule shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: February 27, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Elizabeth Walsh Baldacci
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Docket No.: BAR-16-10
Issued by: Maine Supreme Judicial Court
Date: April 15, 2016
Respondent: Elizabeth Walsh Baldacci
Bar Number: 008056
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
Elizabeth Walsh Baldacci, Esq., who has been on inactive status with the Board of Overseers of the Bar since August 31, 2010, has filed a formal petition for reinstatement to the bar pursuant to M. Bar R. 4(j). Because Baldacci has been on inactive status in the Maine Bar for over five years, the Court has the discretion to relieve her of the requirement to petition the Court for reinstatement. See M. Bar. R.4(j).
It is ORDERED that the Board of Overseers may, in its discretion, administratively reinstate Attorney Baldacci to active status in the Maine bar without further action by the Court. If the Board declines to reinstate Attorney Baldacci without further Court proceedings, she may notify the Executive Clerk of this Court that the Board has declined to administratively reinstate her, and the Court will then consider her petition for reinstatement.
Dated: April 15, 2016
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Daniel L. Lacasse, Esq.
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Docket No.: BAR-17-3
Issued by: Maine Supreme Judicial Court
Date: March 1, 2017
Respondent: Daniel L. Lacasse, Esq.
Bar Number: 002433
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, John A. Churchill, Esq., is appointed the Receiver of the law practice of Daniel L. Lacasse. Attorney Churchill shall:
It is further Ordered that Attorney Churchill shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: March 1, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Daniel G. Lilley, Esq.
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Docket No.: BAR-17-4
Issued by: Maine Supreme Judicial Court
Date: March 15, 2017
Respondent: Daniel G. Lilley, Esq.
Bar Number: 001870
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Attorneys John A. McArdle and Amber L. Tucker are appointed Co-Receivers in order to wind down and close the law practice of deceased attorney, Daniel G. Lilley. Attorneys McArdle and Tucker shall have the authority to:
It is further Ordered that Attorneys McArdle and Tucker shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar R. 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: March 15, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jeremey A. Miller
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Docket No.: BAR-16-20
Issued by: Maine Supreme Judicial Court
Date: March 10, 2017
Respondent: Jeremey A. Miller
Bar Number: 004398
Order: Suspension
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
Jeremey A. Miller was admitted to the Maine bar in 2008. In October 2015, Mr. Miller became administratively suspended due to his failure to timely renew his licensure and pay the required fees/assessments. Prior to his suspension, Mr. Miller was registered with the Maine Board of Overseers of the Bar (the Board) as a non-resident active attorney. According to the Board?s records, Mr. Miller had almost exclusively been practicing in New Hampshire.
In September 2016, the Board received certified confirmation that the New Hampshire Supreme Court issued an August 25, 2016 Suspension Order against Mr. Miller. The Court?s imposition of a one year suspension was based upon Mr. Miller?s violations of N. H. R. Prof. Conduct 1.5; 1.7; 3.4(c), 8.4(a), and 8.4(c). That suspension became effective September 7, 2016.
The Court notes that Mr. Miller?s professional conduct violations included his failure to request and obtain client consent in providing representation to multiple parties in the same transaction; his failure to exercise a duty of good faith and loyalty; and his subsequent failure to properly comply with obligations to a tribunal. In Maine, Mr. Miller?s misconduct would constitute analogous violations of M. R. Prof. Conduct 1.5 (excessive fees); 1.7 (personal conflict of interest); 3.4(c) (knowingly disobeying an obligation under the rules of the tribunal); and 8.4 (c) (misconduct involving deceit).
Based upon the above rule violations, the Court finds that reciprocal discipline in Maine is warranted. Accordingly, the Court ORDERS that Jeremey A. Miller is now suspended from the practice of law in Maine for one year, and he may not return to practicing law in Maine until such time as his Petition for Reinstatement is granted.
Dated: March 10, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: March 16, 2017
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Decision Affirmed
Disposition/Conduct: Appeal of the Petition for Reinstatement to the Maine Bar denied by the Law Court
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 48
Docket: Cum-15-345
Argued: April 5, 2016
Decided: March 16, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
SAUFLEY, C.J.
[¶1] In 2013, Edwin R. Jonas III, who had been admitted to the Maine Bar in 1987, petitioned for reinstatement to the bar from his administrative suspension for failing to register in 1995. A single justice of the Maine Supreme Judicial Court (Gorman, J.) ultimately denied Jonas?s petition for reinstatement. Jonas now appeals to us, in our capacity as the Law Court,1 challenging the processes employed by the Grievance Commission, the Board of Overseers of the Bar, and the single justice in reviewing his petition for reinstatement. Jonas also challenges the single justice?s evidentiary rulings during the de novo hearing on his petition, and the Board?s and the single justice?s conclusion that he failed to meet his burden to show that he was eligible for reinstatement.
[¶2] The record reflects that Jonas has engaged in more than two decades of litigation with his ex-wife during which he was suspended from the bars of three states, jailed for contempt, declared a vexatious litigant, and admonished by a federal court for making frivolous arguments. We affirm the single justice?s judgment declining to reinstate Jonas to the Maine Bar.
A. Facts
[¶3] The single justice?s factual findings, reported here, are supported by witness testimony, the parties? exhibits, and findings and judgments contained in the decisions of other courts and disciplinary bodies before whom Jonas was a party. Preliminarily, we note that this matter is complicated by the fact that, following the completion of the proceedings, the applicable Maine Bar Rules were repealed and replaced in their entirety with rules that substantially changed the procedures for reinstatement since Jonas?s petition was filed.2 See generally M. Bar R. (Tower 2015) (effective July 1, 2015). Except as otherwise indicated, all references to the Maine Bar Rules are to the rules that were in effect at the time of Jonas?s petition. See generally M. Bar R. (Tower 2014).
[¶4] Jonas was admitted to the Maine Bar in 1987. Because of his failure to complete an annual registration, see M. Bar R. 6(b)(1), he was administratively suspended from the Maine Bar in 1995.
[¶5] In 1990, Jonas and his wife, Linda Jonas, were divorced. Since then, Jonas and Linda have been involved in highly contentious post-divorce litigation. In 1995, while the parties were litigating competing post-judgment motions, Linda alleged that Jonas was secretly liquidating assets and hiding the proceeds in accounts in the Cayman Islands, and that he planned to move there with the couple?s children. The New Jersey Superior Court ordered Jonas not to transfer any assets valued over $15,000 and not to remove the children from a five-state area.
[¶6] In direct violation of the court?s order, Jonas obtained a loan of $130,000 secured by a mortgage on his residence and continued efforts to sell commercial property that he rented out as a 7-Eleven building, eventually deeding the store to his sister and a friend to be held in trust for the children. In addition, Jonas secretly kept $438,000 in a bank account in the Cayman Islands, and on September 15, 1995, he absconded with his children to the Cayman Islands, where he enrolled them in school.
[¶7] After Jonas failed to appear at a hearing, the court issued a warrant for Jonas?s arrest, placed the children in Linda?s custody, and took a number of protective measures designed to ensure that Jonas complied with his financial obligations imposed by previous court orders. Jonas continued to defy the court?s orders regarding the payment of his support obligations. Shortly thereafter, Jonas was briefly incarcerated for contempt of court. The New Jersey Appellate Division upheld the series of actions taken by the trial court, stating, ?As evidenced by the record, [Jonas] time and again failed to abide by the court?s orders and deliberately avoided paying alimony and other support to the plaintiff.?
[¶8] As a result of his actions, the New Jersey State Bar suspended Jonas for a period of six months beginning on September 2, 2005, for conduct intended to disrupt a tribunal and conduct that was prejudicial to the administration of justice. Jonas has not been reinstated in New Jersey.
[¶9] In 2006, Jonas was reciprocally suspended from the bar of Pennsylvania for a period of six months based on the discipline imposed in New Jersey. Jonas was reinstated to inactive status in Pennsylvania in 2014. In 2007, Jonas was reciprocally suspended from the Florida bar for a period of one year for committing conduct intended to disrupt a tribunal.
[¶10] After his suspension from the New Jersey bar, Jonas?s post-divorce proceedings in New Jersey continued. Jonas failed to attend multiple hearings during these proceedings. Based on Jonas?s ?obstinate refusal to comply or properly respond to court orders,? the Appellate Division dismissed an appeal from Jonas, stating, ?[Jonas?s] defiance is especially egregious in light of the fact that he was an attorney-at-law of this State and was suspended in this state and others for his willful evasion of court orders.?
[¶11] At some point prior to 2009, Jonas moved to Montana. When Linda sought to domesticate the New Jersey judgments in Montana, Jonas unsuccessfully launched a collateral attack on the judgments. The court granted Linda?s motion to declare Jonas a vexatious litigant and found that in attempting to defy the New Jersey judgments, Jonas had willfully abused his litigation skills by filing ?harassing, duplicative, vexatious, and frivolous? lawsuits, had filed appeals in matters in which he had ?no objective good faith expectation of prevailing,? and had caused ?needless expense and burden? to Linda.
[¶12] During litigation that Jonas instituted in the United States District Court for the District of Montana against Linda, her Montana attorney, and others, Jonas was ordered to show cause why he should not be sanctioned pursuant to Rule 11 of the Federal Rules of Civil Procedure for making frivolous arguments. After Jonas failed to show good cause, the court issued a sanction in the form of an admonishment dated August 7, 2014. A copy of its admonishment was forwarded to the state bars of Maine, New Jersey, and Pennsylvania. By the time the admonishment was forwarded to the Maine Bar, Jonas?s reinstatement proceedings were already pending before the Maine Board of Overseers of the Bar.
B. Procedural History of Jonas?s Petition for Reinstatement in Maine
[¶13] On September 20, 2013, Jonas filed a petition for reinstatement to the Maine Bar with the Supreme Judicial Court and the Board of Overseers of the Bar. The matter was assigned to a single justice of the Supreme Judicial Court. Bar Counsel opposed the petition. On March 4, 2014, the Grievance Commission held a hearing concerning the petition for reinstatement. The Commission recommended to the Board that Jonas be conditionally reinstated to the bar. Both Jonas and Bar Counsel objected to some aspect of the Grievance Commission?s recommendations. In response, the Board created a ?Special Panel? of the Board to review the evidence adduced at the Commission?s hearing, seek additional written arguments from the parties, and make a recommendation to the Board as a whole as to whether the Board should recommend Jonas?s reinstatement.
[¶14] Once the Special Panel completed its work, the full Board met.3 The Board found that Jonas did not meet his burden to establish that he should be reinstated. The Board concluded that the Grievance Commission had failed to consider the necessary factors in determining whether to recommend reinstatement. On September 24, 2014, the Board recommended to the single justice that Jonas?s petition for reinstatement be denied.
[¶15] After briefing and argument on several procedural issues, the single justice scheduled a de novo hearing on Jonas?s petition in which the court provided the parties an opportunity to present all relevant evidence and make a record that was to be ?created anew.?
[¶16] Prior to the hearing, Jonas filed a motion in limine seeking to exclude evidence of any issues regarding Jonas?s conduct that were not raised in the hearing before the Grievance Commission. The single justice denied the motion, noting that Jonas had the burden to prove that he was eligible for reinstatement by clear and convincing evidence, and concluding that ?[d]ue process does not require that the Board notify Mr. Jonas of those aspects of his burden that it anticipates challenging at the hearing, nor does due process limit the Board from challenging any aspect of Mr. Jonas?s presentation.?
[¶17] A two-day bench trial was held on April 27 and 28, 2015. At the trial, Jonas objected to the admission of prior court orders and decisions in cases that involved him. The single justice overruled Jonas?s objections, admitted the few orders and decisions ultimately offered by Jonas, and admitted the many orders and decisions offered by the Board.
[¶18] On June 22, 2015, the single justice issued a judgment finding that Jonas had failed to establish by clear and convincing evidence that he was eligible for reinstatement. See M. Bar. R. 7.3(j)(5). In reaching this conclusion, the single justice ?considered the testimony of witnesses presented during the de novo hearing in April, the documents admitted in evidence at that hearing, the findings and conclusions made by various courts in prior proceedings in which Jonas was a party, and the parties? arguments.? The judgment also indicated, ?some of the cases [relied upon] were specifically provided by the parties at hearing, and others were found in electronic databases that are publicly available.?
[¶19] This appeal followed. See 4 M.R.S. § 57 (2016); In re Application of Feingold, 296 A.2d 492, 496 (Me. 1972).
[¶20] We begin by reviewing the procedures and standards that applied to Jonas?s petition for reinstatement. In doing so, we interpret the meaning of the Maine Bar Rules de novo, looking both to the plain language and to the purpose of the rules. See Bailey v. Bd. of Bar Exam?rs, 2014 ME 58, ¶ ¶ 16, 19-21, 90 A.3d 1137; Bd. of Overseers of the Bar v. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103. As we cautioned at the outset, many of the rules applicable here have been superseded by the Bar Rules that went into effect in 2015.
A. Reinstatement Procedures
[¶21] Pursuant to the bar rules that applied to Jonas?s petition, ?[a]n attorney who ha[d] been suspended for non-disciplinary reasons? could ?petition to the Court for reinstatement.? M. Bar. R. 7.3(j)(4). If Bar Counsel opposed the petition, the matter would ?be immediately referred to the Grievance Commission? for a hearing. M. Bar R. 7.3(j)(5). During the hearing, it was the petitioner?s burden to
present[] clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State[,] . . . [and] that it [wa]s likely that reinstatement w[ould] not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioner?s meeting that burden include[d] evidence that:
M. Bar R. 7.3(j)(5).
[¶22] After a hearing, the Grievance Commission would ?transmit to the Board and to the petitioner its findings and recommendations by written report, and provide the Board with any record it ha[d] made.? M. Bar R. 7.3(j)(6). ?After consideration of a party?s timely objection to the [Grievance Commission?s] report the Board [would] file its recommendations and findings with the Court, together with any record that ha[d] been made.? Id. After the Board filed its recommendation and findings, the Supreme Judicial Court would, ?with or without hearing, grant or deny the petition for reinstatement by written order.? Id.
B. Standard of Evidentiary Admissibility
[¶23] Although the Bar Rules provided standards of evidentiary admissibility that applied to disciplinary proceedings, see M. Bar R. 7.1(e)(2)(C), 7.2(b)(2), they did not expressly address the standards that would apply in reinstatement proceedings, see M. Bar R. 7.3(j).4 Because attorneys may petition for reinstatement from either disciplinary or nondisciplinary suspensions, the same standards of evidentiary admissibility that applied to disciplinary proceedings did not necessarily apply to all petitions for reinstatement. Accordingly, we must first determine whether the Rules of Evidence or the ?reasonable person? standard, which applied in disciplinary proceedings before a Grievance Panel, M. Bar R. 7.1(e)(2)(C), and in attorney admission proceedings, M. Bar Admission R. 9(d)(5)(C), 9(d)(6)(C), applied to the trial held by the single justice. See also 5 M.R.S. § 9057(2) (2016).
[¶24] We begin by reviewing the standard that applies to attorney admission proceedings. If the Board of Bar Examiners holds a hearing on an application for admission to the bar, ?[e]vidence shall be admitted . . . if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.? M. Bar Admission R. 9(d)(5)(C). In such proceedings, the new applicant has the burden to prove that the applicant is ?a person of good character,? is ?fit to practice law,? and ?possesses sufficient learning in the law to practice as an attorney in this State.? M. Bar Admission R. 8-10.
[¶25] If an applicant is denied a certification of good character and fitness to practice law by the Board, the applicant may petition the Court for admission pursuant to Rule 9(d)(6)(A). A single justice of this Court will then conduct a de novo hearing during which the same reasonable person standard of evidentiary admissibility applies. M. Bar Admission R. 9(d)(6)(C).
[¶26] Under the rules applicable to these proceedings, when a suspended attorney petitioned for reinstatement to the bar, the process and the petitioner?s burden were much the same as for an initial application, although the applicable evidentiary standards were not explicitly addressed in the rules.5 Again, the petitioner was the moving party, not the Board of Overseers of the Bar. Because the procedural posture, allocation of burdens, and ultimate consequences of reinstatement proceedings mirrored bar admission proceedings, we conclude that the reasonable person standard of evidentiary admissibility applied to reinstatement proceedings before the Commission and the Board. See M. Bar R. 7.3(j)(5) (providing that a petitioner seeking reinstatement had the burden to show ?the moral qualifications, competency, and learning in law required for admission to practice law in this State? (emphasis added)).
[¶27] In a single justice hearing on a reinstatement petition in which the court, as anticipated by the Rule, did not provide the petitioner with the opportunity for a full de novo factual presentation, the single justice?s determination would be made based on a review of the record as it was ?developed before the Commission and the Board.?6 See In re Williams, 2010 ME 121, ¶ 8, 8 A.3d 666. Thus, the single justice?s determination could have been based entirely on the record provided by the Board, and that record would have been created, as we have just held, utilizing the reasonable person admissibility standard rather than the Rules of Evidence.
[¶28] Because here the single justice took the additional step of providing Jonas with a complete de novo factual hearing instead of engaging in a ?de novo? review of the record, we must determine what standard of evidentiary admissibility applied during Jonas?s de novo reinstatement hearing. We conclude that the fact that the single justice provided Jonas a fully de novo reinstatement hearing does not alter the kind of evidence upon which the reinstatement determination may be made. Thus, the admission of evidence in that proceeding was governed by the same reasonable person standard that applied before the Commission and the Board, and that applies to administrative proceedings and to attorney admission proceedings before a single justice. The Rules of Evidence did not apply.7
C. Review of Jonas?s Arguments
[¶29] Having clarified the nature of the reinstatement proceeding and the standard for the admissibility of evidence, we turn to Jonas?s arguments on appeal. Among his many arguments, Jonas challenges (1) the processes employed by the Commission, the Board, and the single justice in reviewing his petition for reinstatement; (2) evidentiary rulings made during the de novo hearing of his petition; and (3) the Board?s and single justice?s conclusion that he failed to meet his burden to show that he was eligible for reinstatement to the Maine Bar. We discuss each argument in turn.
a. Special Panel
[¶30] Jonas first challenges the Board?s establishment of a ?Special Panel? of the Board to review the Commission?s recommendation to reinstate Jonas to the Maine Bar as a violation of the Bar Rules and his due process rights.
[¶31] After the Board receives the recommendations and findings of the Commission on a petition for reinstatement, ?the Board . . . retains the ultimate responsibility for evaluating such recommendations and findings and making its own findings and recommendations to the Court.? Me. Bd. of Overseers of the Bar Reg. No. 50, 1 Maine Manual on Professional Responsibility R-30 (2004). If the petitioner or Bar Counsel objects, ?the Board will . . . decide . . . what, if any, procedure to establish for hearing the objections to the findings and recommendations of the Commission or Panel.? Id. at R-30 to R-31. Thus, although the regulation does not explicitly mention the creation of a ?Special Panel,? it requires the Board to make independent recommendations and findings and gives the Board broad discretion to adopt an appropriate procedure to consider objections to the Commission?s report.
[¶32] Turning to the purpose of the rules, we have previously noted that, although the Court itself retains ultimate authority to regulate attorneys and the practice of law in Maine, it has delegated some of that authority to the Board of Overseers ?to develop a record and issue recommendations in reinstatement proceedings.? In re Williams, 2010 ME 121, ¶? 5, 8 A.3d 666. The creation of a Special Panel of the Board to review the Grievance Commission?s findings and seek additional input from the parties is consistent with this purpose.
[¶33] Based on the language of the applicable Bar Rules and Board Regulations and the purpose and role of the Board, it was neither inappropriate nor a violation of Jonas?s due process rights for the Board to appoint a ?Special Panel? of the Board to review the Grievance Commission?s recommendation and make its own recommendation to the full Board.8
b. Reinstatement Factors
[¶34] Jonas next argues that because he was seeking reinstatement after an administrative suspension, M. Bar R. 7.3(j)(4), the factors listed in M. Bar R. 7.3(j)(5) did not apply to his petition. That argument is simply incorrect.
[¶35] The procedure set out in 7.3(j)(5) applied to all types of petitions for reinstatement mentioned in section 7.3(j). See Bailey, 2014 ME 58, ¶ ¶ 16-17, 90 A.3d 1137; In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666. This does not mean that each factor would have similar weight in every case; rather, the factors would be considered to the extent that they applied to the petitioner. The Board and single justice appropriately applied the factors to determine whether Jonas had met his burden to demonstrate eligibility for reinstatement.
c. Due Process
[¶36] In addition to his argument that the procedures violated the Bar rules, Jonas argues that the procedures collectively violated his due process rights. We review alleged procedural due process violations de novo. See State v. Jones, 2012 ME 126, ¶ 35, 55 A.3d 432.
[¶37] We have previously held that due process in the context of bar proceedings ?consists of notice of the proceedings and an opportunity to be heard, including the right to confront and cross-examine witnesses.? See In re Williams, 2010 ME 121, ¶ 5, 8 A.3d 666.
[¶38] Jonas had both notice and the opportunity to be heard at every stage of the proceedings. First, he had notice and the opportunity to present his petition to the Grievance Commission. After the Grievance Commission?and then the Board?issued recommendations, the single justice invited the parties to address the process employed by the Grievance Commission and the Board, where Jonas had the opportunity to brief and argue the procedural issues. Jonas was then provided a full de novo hearing before the single justice.9 Before holding a hearing, the single justice allowed Jonas to file motions in limine and heard his evidentiary arguments. At the hearing, Jonas was again given the opportunity to present witnesses and documentary evidence, and to address the evidence offered by the Board. At each stage of the proceedings, Jonas was represented by capable counsel. Jonas was not deprived of due process at any stage of the proceedings. See In re Williams, 2010 ME 121, ¶ ¶ 5-9, 8 A.3d 666.
[¶39] Jonas next argues that the single justice erroneously took judicial notice of the facts found in judgments from other jurisdictions in which Jonas?s conduct was assessed. See M.R. Evid. 201. We review evidentiary rulings for clear error or abuse of discretion. State v. Dolloff, 2012 ME 130, ¶ 24, 58 A.3d 1032.
[¶40] As we have concluded, the Rules of Evidence did not apply in these proceedings. Bar reinstatement proceedings required the single justice to determine, inter alia, that the petitioner was of good moral character, and that reinstatement would not be detrimental to the integrity and standing of the Bar. See M. Bar R. 7.3(j)(5). In such a proceeding, the single justice was bound to consider the petitioner?s conduct as an attorney and litigant in determining whether the petitioner was eligible for reinstatement. Judgments and orders relating to prior litigation involving that attorney are uniquely relevant to that determination. Thus, pursuant to the reasonable person standard of admissibility, the single justice did not err or abuse her discretion in considering the extensive history of judgments and orders against Jonas. Cf. M. Bar R. 7.3(h)(4) (?A final adjudication in another jurisdiction that an attorney had been guilty of misconduct may be treated as establishing the misconduct for purposes of a disciplinary proceeding in this State.?). Furthermore, as a litigant in family matters and as an attorney facing potential discipline, Jonas had the motivation and formal opportunity to offer evidence and argument. Because of the process afforded in the prior proceedings and the nature of the proceedings before the single justice, the facts found in the judgments that were relied on by the single justice constituted the kind of information upon which a reasonable person would rely. The single justice did not err or abuse her discretion in considering the judgments involving Jonas, including the factual findings contained in those judgments.10
[¶41] To be reinstated, Jonas was required to demonstrate, by clear and convincing evidence, that he possessed the moral qualifications, competency, and learning in law required for admission to practice law in this State, as well as to demonstrate, by clear and convincing evidence, that it was likely that reinstatement would not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest. M. Bar R. 7.3(j)(5). We review a single justice?s factual findings for clear error. Bailey, 2014 ME 58, ¶ 16, 90 A.3d 1137. Because Jonas had the burden of proof, he can prevail only if he can establish that the single justice was ?compelled to find in his favor.? See In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666.
[¶42] Jonas argued that any misconduct that he committed leading to his New Jersey suspension was part of his personal life and should not be dispositive as to his moral character as an attorney. He continued to deny responsibility for many of his actions. For example, he asserted that his decision to abscond with his children in direct violation of the court?s order was not premeditated, and that the New Jersey courts, his former wife, and her attorney were biased and had formed a conspiracy against him. The single justice found that these explanations were not credible.
[¶43] Furthermore, the Board offered ample evidence, upon which the single justice could rely, to rebut Jonas?s contention that he has behaved ethically since his suspension from the New Jersey bar in 2005. Specifically, the evidence showed that Jonas has demonstrated a pattern of disrespect and contempt for every level of the court system over many years, and in so doing he has abused the very litigation skills that he now seeks to use in Maine.
[¶44] Based on the above evidence, the single justice did not err in finding that Jonas failed to meet his burden of proving, by clear and convincing evidence, that he recognizes the wrongfulness and seriousness of his misconduct, M. Bar R. 7.3(j)(5)(C), or that he has the requisite honesty and integrity to practice law, M. Bar R. 7.3(j)(5)(E). The single justice was not compelled to find that Jonas possesses the moral qualifications, competency, and learning in law required for admission to practice law in this State, and that it is likely that reinstatement will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest. See M. Bar R. 7.3(j)(5); Bailey, 2014 ME 58, ¶ 57, 90 A.3d 1137. Jonas?s proven willingness to abuse his law license and legal skills, disrespecting multiple tribunals and the truth, left the single justice little choice in this matter.
[¶45] The procedures employed at each stage of the proceedings in this case complied with the Bar Rules and provided Jonas with extensive due process. Jonas was provided ample notice and opportunity to present his case at each level of the proceedings. There was no error in the single justice?s consideration of the multitude of judgments and orders against Jonas. Over more than two decades, Jonas incessantly abused his legal skills by initiating a litany of frivolous, vexatious, and harassing litigation, and has shown unremitting contempt for the legal system by continually and repeatedly ignoring court orders.
[¶46] As the single justice found at the conclusion of the forty-four page judgment,
When an attorney is admitted to the Maine bar, he swears that he ?will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same? and that he ?will delay no man for lucre or malice.? 4 M.R.S. § 806 (2014). Jonas has demonstrated just the opposite.
[¶47] The single justice was not compelled to find that Jonas had demonstrated his eligibility for readmission to the Maine Bar.
The entry is:
Judgment affirmed.
James M. Bowie, Esq. (orally), Thompson & Bowie, LLP, Portland, for appellant Edwin R. Jonas III
Aria Eee, Esq. (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
Maine Supreme Judicial Court docket number Bar-13-16
FOR CLERK REFERENCE ONLY
1We treat the single justice?s decision on the petition for reinstatement as the judgment of a trial court and review as an appellate body. See 4 M.R.S. § 57 (2016); In re Williams, 2010 ME 121, ¶ 1, 8 A.3d 666; In re Application of Feingold, 296 A.2d 492, 496 (Me. 1972).
2The Maine Bar Rules govern proceedings for attorney discipline and reinstatement, which are initiated with the Board of Overseers of the Bar. See M. Bar R. (Tower 2014). Proceedings for the admission of new attorneys to the bar are initiated with the Board of Bar Examiners and governed by the Maine Bar Admission Rules, which have not materially changed since Jonas filed his petition.
3The record does not contain a report or other written record of the recommendation of the Special Panel to the full Board.
4Similarly, the new Rules do not explicitly provide an evidentiary standard for reinstatement proceedings before the Commission. See M. Bar R. 29(g) (Tower 2015); see also id. 14(a)(1)-(2) (providing that the Rules of Evidence do not apply to disciplinary hearings before a Grievance Commission Panel). We note, without deciding, that the new Rules appear to indicate that when the Court holds a hearing on the Commission?s findings and recommendations in reinstatement proceedings, the Rules of Evidence apply. See id. 14(b)(1); 29(h).
5As we noted, the Bar Rules provided standards of evidentiary admissibility only for disciplinary proceedings. In disciplinary proceedings, the Bar Rules provided that hearings before the Commission were subject to the reasonable person standard of admissibility, whereas hearings before a single justice were subject to the Rules of Evidence, ?[t]o the extent appropriate.? See M. Bar R. 7.1(e)(2)(C), 7.2(b)(2).
6Although we have previously held to the contrary, see, e.g., In re Application of Spurling, 595 A.2d 1062, 1065 (Me. 1991), the cases in which we did so involved bar admission rules that have been superseded.
7The new Bar Rules explicitly subsume reinstatement from an administrative suspension longer than five years within the same process as is used for reinstatement from a disciplinary suspension longer than six months. See M. Bar R. 4(i), 29 (Tower 2015). The new rules also provide different criteria for reinstatement that have a greater disciplinary focus and are less similar to the criteria applicable to attorney admissions. See id. 29(e). For example, to be reinstated, a petitioner no longer has the burden to show the ?moral qualifications, competency, and learning in law required for admission.? Compare M. Bar R. 7.3(j)(5) (Tower 2014) with M. Bar R. 29(e) (Tower 2015). As noted, we do not opine on the standard of evidentiary admissibility that applies pursuant to the new Bar Rules.
8Moreover, Jonas?s objections to the Board?s processes have been rendered moot by the single justice?s decision to conduct a hearing during which Jonas and the Board were given the opportunity to present their evidence anew.
9Neither party contests the propriety of the single justice holding a de novo hearing in this matter.
10Because the parties spent considerable energy addressing the use of judicial notice in this matter, we briefly address the issue, despite its inapplicability to the proceedings before the single justice. During a trial in which the Rules of Evidence apply, courts may ?judicially notice,? and thereby conclusively establish, facts that are ?not subject to reasonable dispute because [they] . . . [c]an be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.? M.R. Evid. 201(b), (f). When a court takes judicial notice of a final judgment, from a Maine court or another court of competent jurisdiction, however, that ?notice? is limited to the existence of the judgment, and the action of the court. ?[A] court may take notice of another court?s order only for the limited purpose of recognizing the ?judicial act? that the order represents or the subject matter of the litigation.? United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994); see, e.g., Int?l Star Class Yacht Racing Ass?n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70-71 (2d Cir. 1998); United States v. Garland, 991 F.2d 328, 332 (6th Cir. 1993); Colonial Leasing Co. v. Logistics Control Group Int?l, 762 F.2d 454, 459 (5th Cir. 1985); see also Field & Murray, Maine Evidence § 201.3 at 57 (6th ed. 2007) (?A court will take judicial notice [pursuant to M.R. Evid. 201(b)(2)] of pleadings, dockets, and other records of that court in the same or in other lawsuits.?).
Contrary to the Board?s argument here, the factual findings contained within a judgment are not appropriate subjects for judicial notice. As the Eleventh Circuit explained, ?If it were permissible for a court to take judicial notice of a fact merely because it has been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.? Jones, 29 F.3d at 1553. The collateral estoppel doctrine, also known as issue preclusion, ?prevents a party from relitigating factual issues already decided if the identical issue necessarily was determined by a prior final judgment, and the party estopped had a fair opportunity and incentive to litigate the issue in the prior proceeding.? Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 16, 8 A.3d 677 (quotation marks omitted). In the matter before us, however, the Board did not assert the applicability of collateral estoppel. See Conary v. Perkins, 464 A.2d 972, 975-76 (Me. 1983); Reed v. Tracy, 435 A.2d 745, 746 (Me. 1981). Because the court, here, could rely on findings in other jurisdictions? judgments pursuant to the reasonable person standard of evidentiary admissibility, we need not determine whether collateral estoppel would have applied in this case had the Board argued its applicability.
Board of Overseers of the Bar v. George B. Hefferan, Jr., Esq.
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Docket No.: BAR-16-14
Issued by: Maine Supreme Judicial Court
Date: March 27, 2017
Respondent: George B. Hefferan, Jr., Esq.
Bar Number: 000702
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
Before the Court is a Petition for Discharge of the Receiver appointed by this Court to oversee the concluding of the law practice of George B. Hefferan, Esq. The Maine Board of Overseers of the Bar joins in the Petition for Discharge of the Receiver.
After consideration of the Court?s Order Appointing Receiver, the Receiver?s Final Report and the Petition for Discharge, the Court finds:
THEREFORE, it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P. 79(a).
Dated: March 27, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Daniel G. Lilley, Esq.
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Docket No.: BAR-17-4
Issued by: Maine Supreme Judicial Court
Date: April 14, 2017
Respondent: Daniel G. Lilley, Esq.
Bar Number: 001870
Order: Order
Disposition/Conduct: Order of Clarification
M. Bar R. 32
In response to the motion for clarification filed by Troubh Heisler, and after review of the response from the Board of Overseers of the Bar, that Court clarifies its order appointing Attorneys John A. McArdle and Amber L. Tucker Co-Receivers of the law office of Daniel G. Lilley, Esq.
In addition to all authority specified in the March 15, 2017, order, the Court ORDERS that Attorneys McArdle and Tucker have broad authority and discretion to defend or settle any pending litigation concerning the firm, its assets, and its claims.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: April 14, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Christopher D. Hardy, Esq.
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Docket No.: BAR-16-19
Issued by: Maine Supreme Judicial Court
Date: April 14, 2017
Respondent: Christopher D. Hardy, Esq.
Bar Number: 002636
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Before the Court is a Petition for Discharge of the Receiver appointed by this Court to oversee and close the law practice of Christopher D. Hardy, Esq. The Maine Board of Overseers of the Bar joins in the Petition for Discharge of the Receiver.
After consideration of the Court?s Order Appointing Receiver, the Receiver?s Final Report and the Petition for Discharge, the Court finds:
THEREFORE, it is hereby ORDERED:
The Clerk is directed to incorporate this Order upon the docket by reference pursuant to M.R.Civ.P. 79(a).
Dated: April 14, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Claire Adami Ginder
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Docket No.: BAR-17-5
Issued by: Maine Supreme Judicial Court
Date: April 21, 2017
Respondent: Claire Adami Ginder
Bar Number: 007444
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(j) & 29
Claire Adami Ginder has petitioned for reinstatement from inactive status to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Ms. Ginder's reinstatement pursuant to M. Bar R. 29(f)(l), subject to the Court's approval. The Court has reviewed Ms. Ginder's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Claire Adami Ginder, Bar #007444, is hereby reinstated to active status with the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: April 21, 2017
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert M. Napolitano, Esq.
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Docket No.: GCF# 15-360
Issued by: Grievance Commission
Date: May 3, 2017
Respondent: Robert M. Napolitano, Esq.
Bar Number: 001021
Order: Order
Disposition/Conduct: Amended Order of Stipulated Report of Findings and Probation and Mandate
This matter came before the Grievance Commission upon Attorney Theodore H. Kirchner's Request for Amended Stipulated Report of Findings and Order and Probation Decision and Mandate. Upon consideration of the record and review of the Motion, Attorney Kirchner's Motion is hereby granted. Attorney Thomas Connolly of Portland will resume the responsibilities of Monitor of Attorney Napolitano's practice as specified in previous Orders and serve as a substitute for Attorney Peter E. Rodway in monitoring Respondent's practice.
Date: May 3, 2017
Thomas H. Kelley, Esq.
Chair, Grievance Commission Panel B
Board of Overseers of the Bar v. John D. Bunker, Esq.
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Docket No.: GCF# 16-120
Issued by: Grievance Commission
Date: May 5, 2017
Respondent: John D. Bunker, Esq.
Bar Number: 000140
Order: Admonition
Disposition/Conduct: Diligence, Conflict of Interest: Current Clients, Imputation of Conflict of Interests
M. Bar R. 13(e) and 21(b)(1)
On May 5, 2017, with due notice and pursuant to Maine Bar Rule 13(e)(7), Panel A of the Grievance Commission conducted a public disciplinary hearing, concerning misconduct by Respondent, John D. Bunker, Esq. This disciplinary proceeding was commenced on October 27, 2016, by the Board of Overseers of the Bar?s (Board) filing of a Formal Disciplinary Charges Petition.
At the hearing, Attorney Bunker appeared pro se and the Board was represented by Bar Counsel J. Scott Davis. The complainant, Lee Anne Boutaugh, had been provided by Bar Counsel Davis with a copy of the parties? proposed Stipulated Report and was present at that proceeding and given the opportunity to present comment to the Panel.
Having reviewed the stipulated, proposed findings within that Report as presented by counsel, the Panel makes the following disposition:
The Respondent, Attorney John D. Bunker, of Bangor, Maine, was at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Bunker was admitted to the Maine Bar in 1978 and at the time of the relevant events, he was and remains a practitioner at the law firm of Paine Lynch & Harris in Bangor, Maine.
According to the parties? stipulations, the Panel finds the following relevant facts:
On March 21, 2016, this complaint was filed by Lee Anne V. Boutaugh against Attorney Bunker. Ms. Boutaugh?s complaint involved a conflict of interests in two family matters that were not initially recognized by Attorney Bunker. In October of 2012, Attorney Bunker had represented Ms. Boutaugh for the preparation of a Power of Attorney (POA) for her (then) husband and her son (from a previous marriage). Attorney Bunker drafted the POA and then closed that client file.
On February 16, 2016, Ms. Boutaugh met with Attorney Bunker for representation on new matters. At that meeting, she told Attorney Bunker that she had become divorced and therefore needed an amended POA in favor of her fiance. Ms. Boutaugh then gave Attorney Bunker her fiance's name, J. D.1, that full name being one that Attorney Bunker agrees ?meant nothing to (him) at the time.?
At that meeting, Ms. Boutaugh also discussed her need for a new Will. In the course of their discussion regarding Ms. Boutaugh?s new Will, Attorney Bunker brought up and suggested that Ms. Boutaugh should also use a prenuptial agreement concerning her impending marriage to Mr. D., to be referenced in her new Will as prepared by Attorney Bunker.
Attorney Bunker then explained to Ms. Boutaugh that in order to ensure the validity of a prenuptial agreement, both parties would need to make complete financial disclosures to the other, and that Mr. D. should have separate legal counsel in that matter. To assist Ms. Boutaugh getting started on such a financial disclosure, Attorney Bunker then gave her a blank copy of the financial statement form that is used in family matters. He also gave Ms. Boutaugh a second financial statement form to be provided to Mr. D. He then told Ms. Boutaugh, however, that Mr. D. would need his own separate legal counsel to review the final prenuptial agreement as prepared by Attorney Bunker. Attorney Bunker thus assumed that Mr. D. would be consulting his own counsel in connection with the development of his financial disclosure.
Attorney Bunker then further counseled Ms. Boutaugh on how she should proceed with those legal matters, including the need for her to provide the financial information to him for his completion of her prenuptial agreement. In that regard, he further instructed Ms. Boutaugh how to complete her financial disclosure form and then directed that she later return it to him or his law firm.
In his initial response to Bar Counsel?s investigation inquiry, Attorney Bunker stated that after their initial meeting, he then put his notes into Ms. Boutaugh?s ?old file and did not immediately open a new file.?
On or about February 17, 2016, Ms. Boutaugh delivered both her and Mr. D.?s respective completed financial disclosure forms to Attorney Bunker?s law office.
Sometime between February 16 and February 23, 2016, Jill Reynolds, employed as a legal assistant at Paine, Lynch & Harris, received those two completed financial statements dropped off by Ms. Boutaugh. According to Ms. Reynolds, she then scanned those documents into her personal work computer. No client file(s) concerning those two financial statements had yet been opened. As a result, Ms. Reynolds did not import them into the law firm?s main system.
On Monday, February 22, 2016, Ms. Boutaugh and Attorney Bunker talked and agreed to later meet on Thursday, February 25, 2016 at 3:00 p.m. That meeting was so scheduled to allow Ms. Boutaugh to receive her new POA and also then review Attorney Bunker?s initial draft of the prenuptial agreement. In that discussion, Attorney Bunker then confirmed his understanding that Ms. Boutaugh had dropped off her financial information at his office. Attorney Bunker, however, had not seen or reviewed those documents, and apparently, never did so.
On February 23, 2016, Ms. Boutaugh left two voicemail messages for Attorney Bunker, which he heard late that afternoon after returning to his office from court. In her messages, Ms. Boutaugh informed Attorney Bunker that she understood there was an upcoming meeting between Attorney Martha Harris (Attorney Bunker?s law partner) and Ms. T.2, as her client.
After hearing those messages, Attorney Bunker confirmed that Attorney Harris had indeed met with Ms. T. and intended to represent her as the plaintiff in a post-divorce matter against Mr. D., concerning their two minor children. Thereafter, Attorney Bunker did then return Ms. Boutaugh?s phone calls and told her that as a result of Attorney Harris?s representation of Ms. T. it would no longer be possible or proper for him to represent her with respect to any of the legal matters they had discussed on February 16, 2016.
In his above-referenced response to Bar Counsel?s initial inquiry, Attorney Bunker reported that with Attorney Harris as legal counsel for Ms. T., his law firm became involved in extensive post-judgment proceedings on behalf of Ms. T. in 2012 extending into 2013, and then again in further proceedings in 2016.
Legal Assistant Reynolds had left the Boutaugh/Mr. D. financial disclosure statements on her desk from the time of her receipt until February 23, 2016, when she was then informed of the conflict of interest issue involving Ms. Boutaugh and Attorney Bunker. At that time, Ms. Reynolds was instructed to delete those two financial disclosure documents from her computer, and she did so. The original hard copies were picked up by an employee of Ms. Boutaugh?s new successor counsel the next day, February 24, 2016.
As a result of the law firm?s measures, neither Attorney Bunker nor Attorney Harris gained any personal knowledge of the content of the documents delivered to their firm by Ms. Boutaugh on February 17, 2016. Neither attorney ever possessed nor reviewed any of those materials.
In her grievance complaint, Ms. Boutaugh had alleged otherwise. She reported that on February 23, 2016, both she and Mr. D. had received separate electronic messages from Ms. T. that made reference to personal factual details and information contained in the materials Ms. Boutaugh had discussed with Attorney Bunker on February 16, 2016, and later dropped off at his firm the next day. However, whatever source Ms. T. may have utilized in the substance of those messages to Ms. Boutaugh and Mr. D., neither Attorney Bunker nor Attorney Harris ever provided Ms. T. with any confidential client information that Attorney Bunker had obtained from Ms. Boutaugh.
Attorney Bunker does agree and admit, however, that he did engage in minor misconduct in two respects concerning the manner in which he handled Ms. Boutaugh?s legal matter(s) in February 2016.
First, he should have had an immediate ?conflicts check? performed upon being contacted in 2016 by Ms. Boutaugh for the preparation of her new Will and new POA. Attorney Bunker reports that the firm?s staff routinely investigates the possibility of conflicts when scheduling appointments in cases involving litigation, potential litigation, and other situations in which there is an obvious potential for conflicts, but in this instance the staff person who scheduled the appointment did not believe there was a need to ask for names of potential adverse parties because the appointment was for a revision of an existing POA and preparation of a Will. Second, Mr. Bunker now admits that when he introduced the topic of the prenuptial agreement during the appointment on February 16, 2016, he erred by failing to immediately have that conflicts check performed. If that had occurred, with the check including the complete full name of Mr. D., Attorney Bunker would then have known of the potential conflict of interest problem involving Ms. T., and would have declined any further discussion with Ms. Boutaugh. Instead, it was his new client, Ms. Boutaugh, who in effect performed the conflicts check for him a week later.
In addition, Attorney Bunker agrees that he engaged in similar misconduct by failing to timely ?open a client file? regarding Ms. Boutaugh?s new legal matters. That is, at his meeting with Ms. Boutaugh on February 16, 2016, he took several notes, summarizing the issues and plan of performing her requested legal services. He agrees he put those notes aside and had never opened any new client file on behalf of Ms. Boutaugh. Had he done so, that immediate conflicts check would have taken place in accordance with the MRPC and office procedure.
Attorney Bunker agrees and admits that his failure to ensure that a complete conflicts check would occur on a timely basis (upon initial client intake, during the initial meeting with the client, and upon the timely opening of a client file) in this instance was conduct in violation of M. R. Prof. Conduct 1.3 (diligence); 1.7 (conflict-of-interest: current clients); and 1.10 (imputation of conflict of interests).
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Bunker?s above-outlined failure to properly and timely perform a conflict of interest check at his law firm, a sanction is required under the Maine Bar Rules. The Panel notes that Attorney Bunker has no prior public sanction record with the Board and has taken responsibility for his misconduct in this matter. At the disciplinary hearing, Attorney Bunker expressed his remorse for his violations of the above-referenced Maine Rules of Professional Conduct. In addition, he confirmed to the Panel that he has reformed his practice to attempt to ensure in every instance that: 1). At the scheduling of initial client interviews, either he or his involved nonlawyer staff assistant(s) recognize (to the extent reasonably possible) the potential for conflicts of interest in the situation at hand, and request and receive the names and available address information of potential adverse parties and others whose interests would conflict with those of the prospective client; 2). Upon conducting initial client interviews, he immediately conducts a conflicts check upon identification of the potential for a conflict; and 3). He then immediately ?opens? that file within the firm?s system, such that a conflict of interest check occurs or reoccurs without delay.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. See M. Bar. R. 2(a). Since the evidence supports a finding and Attorney Bunker agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, the Panel finds under M. Bar R. 21(b)(1) that this was a minor violation; there was little or no injury caused to a client, the public, the legal system or the profession; and there is little likelihood of repetition by Attorney Bunker. As a result, the Panel finds and agrees that an admonition serves those purposes.
Therefore, the Panel accepts the agreement of the parties, including Attorney Bunker?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a public Admonition to Attorney John D. Bunker, which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: May 5, 2017
John P. Gause, Esq., Acting Panel Chair
Cynthia M. Mehnert, Esq., Panel Member
Milton R. Wright, Public Member
1The parties have agreed to utilize initials for the fiance in order to protect his privacy.
2Again, the parties have agreed to utilize initials to protect the privacy of the involved persons.
Board of Overseers of the Bar v. John E. Harrington, Jr.
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Docket No.: BAR-17-6
Issued by: Maine Supreme Judicial Court
Date: May 18, 2017
Respondent: John E. Harrington, Jr.
Bar Number: 001737
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar (the Board) and pursuant to M. Bar R. 32, the Court Orders:
As of this date, Steven J. Mogul, Esq., (and Gross Minsky & Mogul, P.A.) is appointed Limited Receiver for the closed law office of retired Attorney John E. Harrington, Jr. Pursuant to this Order and with the Board?s assistance, Attorney Mogul shall:
As a service to the bar, Attorney Mogul may serve as Receiver on a pro bono basis. However, Attorney Mogul shall submit a semi-annual written report to the Court, copied to the Board?s Special Counsel, containing a record of time worked and disbursements made in this matter. John E. Harrington, Jr. shall be the first choice for source of payment for the disbursements and any legal fees (at the state court appointment rate) sought by the Receiver. If insufficient assets are available from Mr. Harrington, the Board may be an alternate payment source for expenses related to the closed client files.
Attorney Mogul shall act as Receiver until discharged by the Court in accordance with M. Bar R 32(c).
Attorney Mogul so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Attorney Mogul and Gross Minsky & Mogul, P.A. may be engaged by any former client of John E. Harrington provided that the client is informed in writing of the choice to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver?s employment. Attorney Mogul is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client?s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of Attorney Mogul?s appointment by this Order.
Attorney Mogul and Gross Minsky & Mogul, P.A. shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: May 18, 2017
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Barry L. Pretzel, Esq.
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Docket No.: BAR-17-7
Issued by: Maine Supreme Judicial Court
Date: May 19, 2017
Respondent: Barry L. Pretzel, Esq.
Bar Number: 008931
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, Jeremy Pratt, Esq., is appointed the Receiver of the law practice of Barry L. Pretzel. Attorney Pratt shall:
It is further Ordered that Attorney Pratt shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: May 19, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Harold H. Burbank II
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Docket No.: GCF# 16-315
Issued by: Grievance Commission
Date: June 2, 2017
Respondent: Harold H. Burbank II
Bar Number: 006813
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Report Finding of Probable Cause for Filing of Information with the Court
On May 17, 2017, Panel B of the Grievance Commission, pursuant to due notice, conducted a disciplinary hearing concerning the Respondent, Harold H. Burbank II of Canton, Connecticut. The hearing was open to the public and was held at the Cumberland County Courthouse in Portland, Maine. Panel members included Thomas H. Kelley, Esq., Chair; Vendean V. Vafiades, Esq.; and Franklin D. Gooding, Public Member. The Board of Overseers of the Bar was represented by Bar Counsel J. Scott Davis. Harold H. Burbank II was present pro se.1
This proceeding was initiated by a Disciplinary Petition, dated January 5, 2017, which alleged that Mr. Burbank engaged in conduct unworthy of an attorney and violated specific portions of the Maine Rules of Professional Conduct, including M. R. Prof. Conduct 1.1, 1.3, 3.1(a), 3.4(c) and 8.4 (a)(d). Because the Respondent failed to file an answer to the disciplinary petition, pursuant to M. Bar R. 13(e)(3) and M. Bar R. 20(a), the facts set forth and the misconduct alleged in the petition were taken as admitted, and Respondent was heard only on the question of sanctions.
Based upon the Petition and testimony presented at the hearing,2 the Panel finds that there is probable cause for the Respondent?s suspension or disbarment. In particular the Panel notes that Mr. Burbank?s ?egregious conduct? in the matter of Frederick B. Lincoln et al. v. Harold H. Burbank II et al., 2016 ME 138, ¶61, raises serious questions about his ability to provide competent representation to clients. This conclusion is reinforced by Mr. Burbank?s apparent inability, as evidenced by his statements to this Panel, to understand why the Law Court found his appellate filings and arguments to be so significantly without merit that the Court imposed sanctions.
The Panel hereby directs Bar Counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 13(e)(10)(E).
DATED: June 2, 2017
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
Franklin D. Gooding, Public Member
1Mr. Burbank is currently suspended from the practice of law in Maine for failure to comply with the annual registration requirements of the Board of Overseers of the Bar.
2After the conclusion of the hearing, Mr. Burbank submitted some additional information about his appellate experience in a letter. The Panel declines to include this letter as part of the hearing record but notes that Mr. Burbank is likely to have an opportunity to submit this material to a single Justice of the Law Court.
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: June 6, 2017
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Final Order on Motion for Reconsideration
Disposition/Conduct: Final Order on Motion for Reconsideration
Edwin R. Jonas has moved for reconsideration of our opinion issued in the above-captioned matter. See In re Jonas, 2017 ME 48. He primarily asked us to reconsider our holding that the Maine Rules of Evidence did not apply. By order dated April 14, 2017, we declined to alter our holding, and we have previously denied Jonas's motion for reconsideration on that ground.
In the alternative, however, Jonas has argued that the matter should be remanded for the single justice to consider the evidence that, although presented to the single justice, was excluded based on the application of the Maine Rules of Evidence. We sought and received a response from the Board, which objected to the motion for reconsideration and argued that if any remand is ordered, it should be limited to allowing the single justice to consider evidence from Secretary of the Interior Ryan Zinke, who was allegedly unable to appear in person or by phone.
Having considered the arguments of Jonas and the Board, we are persuaded that we must amend our opinion to authorize a limited remand for the single justice to consider whether to admit, as evidence upon which reasonable people would rely, (1) specific evidence that Jonas offered and the justice excluded based on the Rules of Evidence and that was not otherwise admitted at trial, and (2) at the discretion of the single justice, evidence of events or decisions that occurred after the close of evidence in the original trial before the single justice.
After determining whether any previously excluded-or new-evidence should be admitted, the single justice must decide whether any newly admitted materials or recent developments alter any aspect of her decision.
It is therefore ORDERED that Jonas's motion for reconsideration of our opinion affirming the single justice's decision is GRANTED in part. We withdraw our previous opinion and issue an amended opinion of this date.
Dated: June 6, 2017
Leigh I. Saufley
Chief Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: June 8, 2017
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Judgment vacated. Remanded for further proceedings consistent with this opinion.
Disposition/Conduct: Petition of Edwin R. Jonas III for Reinstatement to the Bar of the State of Maine
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 115
Docket: Cum-15-345
Argued: April 5, 2016
Decided: March 16, 2017
Reissued: June 8, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
Dissent: ALEXANDER, J.
SAUFLEY, C.J.
[¶1] In 2013, Edwin R. Jonas III, who had been admitted to the Maine Bar in 1987, petitioned for reinstatement to the Bar from his administrative suspension for failing to register in 1995. A single justice of the Maine Supreme Judicial Court (Gorman, J.) ultimately denied Jonas?s petition for reinstatement. Jonas now appeals to us, in our capacity as the Law Court,1challenging the processes employed by the Grievance Commission, the Board of Overseers of the Bar, and the single justice in reviewing his petition for reinstatement. Jonas also challenges the single justice?s evidentiary rulings during the de novo hearing on his petition, and the Board?s and the single justice?s conclusion that he failed to meet his burden to show that he was eligible for reinstatement.
[¶2] The record reflects that Jonas has engaged in more than two decades of litigation with his ex-wife during which he was suspended from the bars of three states, jailed for contempt, declared a vexatious litigant, and admonished by a federal court for making frivolous arguments. Nonetheless, he seeks reinstatement to the Maine Bar asserting that, notwithstanding those judgments, he has the requisite character and fitness to practice law.
[¶3] In this appeal, Jonas challenges the process at every stage of the proceedings, the evidentiary determinations of the single justice, and the justice?s ultimate findings and conclusions. We conclude that there was no error in process at any stage of the proceedings; that Jonas received more than sufficient notice and opportunity to be heard; and that his claims of a failure of due process are without merit. Nonetheless, because we have concluded on this appeal that the evidentiary standard applicable to Jonas?s final de novo hearing was the more expansive ?reasonable person? standard, rather than the Rules of Evidence, we remand for the single justice to consider whether to admit the evidence offered by Jonas that she excluded pursuant to the Maine Rules of Evidence and to determine the effect of any newly admitted evidence on her decision.
A. Facts
[¶4] The single justice made detailed factual findings, which we do not report at length here, given the remand for her further consideration. Preliminarily, we note that this matter is complicated by the fact that, following the completion of the original proceedings, the applicable Maine Bar Rules were repealed and replaced in their entirety with rules that substantially changed the procedures for reinstatement since Jonas?s petition was filed.2 See generally M. Bar R. (Tower 2015) (effective July 1, 2015). Except as otherwise indicated, all references to the Maine Bar Rules are to the rules that were in effect at the time of Jonas?s petition. See generally M. Bar R. (Tower 2014).
[¶5] Jonas was admitted to the Maine Bar in 1987. Because of his failure to complete an annual registration, see M. Bar R. 6(b)(1), he was administratively suspended from the Maine Bar in 1995.
[¶6] In 1990, Jonas and his wife, Linda Jonas, were divorced in New Jersey. Since then, Jonas and Linda have been involved in highly contentious post-divorce litigation as Jonas repeatedly defied the court?s orders regarding the payment of his support obligations and Linda?s attempts to enforce them. During the course of that litigation, and in other litigation related to his bar status in other jurisdictions, Jonas has been sanctioned, suspended, and held in contempt. On multiple occasions, Jonas failed to attend hearings established to allow him to demonstrate compliance with court orders. Based on Jonas?s ?obstinate refusal to comply or properly respond to court orders,? the New Jersey Appellate Division dismissed an appeal from Jonas, stating, ?[Jonas?s] defiance is especially egregious in light of the fact that he was an attorney-at-law of this State and was suspended in this state and others for his willful evasion of court orders.?
[¶7] As a result of his actions, the New Jersey State Bar suspended Jonas for a period of six months beginning on September 2, 2005, for conduct intended to disrupt a tribunal and conduct that was prejudicial to the administration of justice. Jonas has not been reinstated in New Jersey.
[¶8] In 2006, Jonas was reciprocally suspended from the bar of Pennsylvania for a period of six months based on the discipline imposed in New Jersey. Jonas was reinstated to inactive status in Pennsylvania in 2014. In 2007, Jonas was reciprocally suspended from the Florida bar for a period of one year for committing conduct intended to disrupt a tribunal.
[¶9] At some point prior to 2009, Jonas moved to Montana, where he began a course of what the Montana court described as ?harassing, duplicative, vexatious, and frivolous? litigation against his ex-wife when she sought to domesticate the New Jersey judgments. Eventually, the court granted Linda?s motion to declare Jonas a vexatious litigant and found that in attempting to defy the New Jersey judgments, Jonas had willfully abused his litigation skills, had filed appeals in matters in which he had ?no objective good faith expectation of prevailing,? and had caused ?needless expense and burden? to Linda.
[¶10] Jonas then filed suit in the United States District Court for the District of Montana against Linda, her Montana attorney, the judge who had presided over Linda?s action to domesticate the New Jersey judgments, and others. The federal court eventually ordered Jonas to show cause why he should not be sanctioned pursuant to Rule 11 of the Federal Rules of Civil Procedure for making frivolous arguments. After Jonas failed to show good cause, the court issued a sanction in the form of an admonishment dated August 7, 2014. A copy of its admonishment was forwarded to the state bars of Maine, New Jersey, and Pennsylvania. By the time the admonishment was forwarded to the Maine Bar, Jonas?s reinstatement proceedings were already pending before the Maine Board of Overseers of the Bar.
[¶11] On September 20, 2013, Jonas filed a petition for reinstatement to the Maine Bar with the Supreme Judicial Court and the Board of Overseers of the Bar. The matter was assigned to a single justice of the Supreme Judicial Court. Bar Counsel opposed the petition. On March 4, 2014, the Grievance Commission held a hearing concerning the petition for reinstatement. The Commission recommended to the Board that Jonas be conditionally reinstated to the bar. Both Jonas and Bar Counsel objected to some aspect of the Grievance Commission?s recommendations. In response, the Board created a ?Special Panel? of the Board to review the evidence adduced at the Commission?s hearing, seek additional written arguments from the parties, and make a recommendation to the Board as a whole as to whether the Board should recommend Jonas?s reinstatement.
[¶12] Once the Special Panel completed its work, the full Board met.3 The Board found that Jonas did not meet his burden to establish that he should be reinstated. The Board concluded that the Grievance Commission had failed to consider the necessary factors in determining whether to recommend reinstatement. On September 24, 2014, the Board recommended to the single justice that Jonas?s petition for reinstatement be denied.
[¶13] After briefing and argument on several procedural issues, the single justice scheduled a de novo hearing on Jonas?s petition in which the court provided the parties an opportunity to present all relevant evidence and make a record that was to be ?created anew.?
[¶14] Prior to the hearing, Jonas filed a motion in limine seeking to exclude evidence of any issues regarding Jonas?s conduct that were not raised in the hearing before the Grievance Commission. The single justice denied the motion, noting that Jonas had the burden to prove that he was eligible for reinstatement by clear and convincing evidence, and concluding that ?[d]ue process does not require that the Board notify Mr. Jonas of those aspects of his burden that it anticipates challenging at the hearing, nor does due process limit the Board from challenging any aspect of Mr. Jonas?s presentation.?
[¶15] A two-day bench trial was held on April 27 and 28, 2015. At the trial, Jonas objected to the admission of prior court orders and decisions in cases that involved him. The single justice overruled Jonas?s objections, admitted the few orders and decisions ultimately offered by Jonas, and admitted the many orders and decisions offered by the Board. The single justice applied the Maine Rules of Evidence to exclude an affidavit that Jonas proffered and to sustain certain hearsay objections raised by Bar Counsel.
[¶16] On June 22, 2015, the single justice issued a judgment finding that Jonas had failed to establish by clear and convincing evidence that he was eligible for reinstatement. See M. Bar. R. 7.3(j)(5). In reaching this conclusion, the single justice ?considered the testimony of witnesses presented during the de novo hearing in April, the documents admitted in evidence at that hearing, the findings and conclusions made by various courts in prior proceedings in which Jonas was a party, and the parties? arguments.? The judgment also indicated that ?some of the cases [relied upon] were specifically provided by the parties at hearing, and others were found in electronic databases that are publicly available.?
[¶17] This appeal followed. See 4 M.R.S. § 57 (2016); In re Application of Feingold, 296 A.2d 492, 496 (Me. 1972). We issued an opinion on March 16, 2017, in which we affirmed the single justice?s decision. Jonas moved for reconsideration seeking, as one alternative, the opportunity to offer specified additional evidence that the single justice precluded him from presenting based on the application of the Maine Rules of Evidence. We now withdraw our prior opinion and replace it with this opinion.
[¶18] We begin by reviewing the procedures and standards that applied to Jonas?s petition for reinstatement. In doing so, we interpret the meaning of the Maine Bar Rules de novo, looking both to the plain language and to the purpose of the rules. See Bailey v. Bd. of Bar Exam?rs, 2014 ME 58, ¶¶ 16, 19-21, 90 A.3d 1137; Bd. of Overseers of the Bar v. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103. As we cautioned at the outset, many of the rules applicable here have been superseded by the Bar Rules that went into effect in 2015.
A. Reinstatement Procedures
[¶19] Pursuant to the bar rules that applied to Jonas?s petition, ?[a]n attorney who ha[d] been suspended for non-disciplinary reasons? could ?petition to the Court for reinstatement.? M. Bar. R. 7.3(j)(4). If Bar Counsel opposed the petition, the matter would ?be immediately referred to the Grievance Commission? for a hearing. M. Bar R. 7.3(j)(5). During the hearing, it was the petitioner?s burden to
present[] clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State[,] . . . [and] that it [wa]s likely that reinstatement w[ould] not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest. Factors to be considered as to the petitioner?s meeting that burden include[d] evidence that:
(A) The petitioner ha[d] fully complied with the terms of all prior disciplinary orders;
(B) The petitioner ha[d] neither engaged not attempted to engage in the unauthorized practice of law;
(C) The petitioner recognize[d] the wrongfulness and seriousness of the misconduct;
(D) The petitioner ha[d] not engaged in any other professional misconduct since resignation, suspension or disbarment;
(E) The petitioner ha[d] the requisite honesty and integrity to practice law; and
(F) The petitioner ha[d] met the continuing legal education requirements . . . .
M. Bar R. 7.3(j)(5).
[¶20] After a hearing, the Grievance Commission would ?transmit to the Board and to the petitioner its findings and recommendations by written report, and provide the Board with any record it ha[d] made.? M. Bar R. 7.3(j)(6). ?After consideration of a party?s timely objection to the [Grievance Commission?s] report the Board [would] file its recommendations and findings with the Court, together with any record that ha[d] been made.? Id. After the Board filed its recommendation and findings, the Supreme Judicial Court would, ?with or without hearing, grant or deny the petition for reinstatement by written order.? Id.
B. Standard of Evidentiary Admissibility
[¶21] Although the Bar Rules provided standards of evidentiary admissibility that applied to disciplinary proceedings, see M. Bar R. 7.1(e)(2)(C), 7.2(b)(2), they did not expressly address the standards that would apply in reinstatement proceedings, see M. Bar R. 7.3(j).4Because attorneys may petition for reinstatement from either disciplinary or nondisciplinary suspensions, the same standards of evidentiary admissibility that applied to disciplinary proceedings did not necessarily apply to all petitions for reinstatement. Accordingly, we must first determine whether the Rules of Evidence or the ?reasonable person? standard, which applied in disciplinary proceedings before a Grievance Panel, M. Bar R. 7.1(e)(2)(C), and in attorney admission proceedings, M. Bar Admission R. 9(d)(5)(C), 9(d)(6)(C), applied to the trial held by the single justice. See also 5 M.R.S. § 9057(2) (2016).
[¶22] We begin by reviewing the standard that applies to attorney admission proceedings. If the Board of Bar Examiners holds a hearing on an application for admission to the bar, ?[e]vidence shall be admitted . . . if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.? M. Bar Admission R. 9(d)(5)(C). In such proceedings, the new applicant has the burden to prove that the applicant is ?a person of good character,? is ?fit to practice law,? and ?possesses sufficient learning in the law to practice as an attorney in this State.? M. Bar Admission R. 8-10.
[¶23] If an applicant is denied a certification of good character and fitness to practice law by the Board, the applicant may petition the Court for admission pursuant to Rule 9(d)(6)(A). A single justice of this Court will then conduct a de novo hearing during which the same reasonable person standard of evidentiary admissibility applies. M. Bar Admission R. 9(d)(6)(C).
[¶24] Under the rules applicable to these proceedings, when a suspended attorney petitioned for reinstatement to the bar, the process and the petitioner?s burden were much the same as for an initial application, although the applicable evidentiary standards were not explicitly addressed in the rules.5Again, the petitioner was the moving party, not the Board of Overseers of the Bar. Because the procedural posture, allocation of burdens, and ultimate consequences of reinstatement proceedings mirrored bar admission proceedings, we conclude that the reasonable person standard of evidentiary admissibility applied to reinstatement proceedings before the Commission and the Board. See M. Bar R. 7.3(j)(5) (providing that a petitioner seeking reinstatement had the burden to show ?the moral qualifications, competency, and learning in law required for admission to practice law in this State? (emphasis added)).
[¶25] In a single justice hearing on a reinstatement petition in which the court, as anticipated by the Rule, did not provide the petitioner with the opportunity for a full de novo factual presentation, the single justice?s determination would be made based on a review of the record as it was ?developed before the Commission and the Board.?.6See In re Williams, 2010 ME 121, ¶ 8, 8 A.3d 666. Thus, the single justice?s determination could have been based entirely on the record provided by the Board, and that record would have been created, as we have just held, utilizing the reasonable person admissibility standard rather than the Rules of Evidence.
[¶26] Because here the single justice took the additional step of providing Jonas with a complete de novo factual hearing instead of engaging in a ?de novo? review of the record, we must determine what standard of evidentiary admissibility applied during Jonas?s de novo reinstatement hearing. We conclude that the fact that the single justice provided Jonas a fully de novo reinstatement hearing does not alter the kind of evidence upon which the reinstatement determination may be made. Thus, the admission of evidence in that proceeding was governed by the same reasonable person standard that applied before the Commission and the Board, and that applies to administrative proceedings and to attorney admission proceedings before a single justice. The Rules of Evidence did not apply.7
C. Review of Jonas?s Arguments
[¶27] Having clarified the nature of the reinstatement proceeding and the standard for the admissibility of evidence, we turn to Jonas?s arguments on appeal. Among his many arguments, Jonas challenges (1) the processes employed by the Commission, the Board, and the single justice in reviewing his petition for reinstatement; (2) evidentiary rulings made during the de novo hearing of his petition; and (3) the Board?s and single justice?s conclusion that he failed to meet his burden to show that he was eligible for reinstatement to the Maine Bar. We discuss each argument in turn.
a. Special Panel
[¶28] Jonas first challenges the Board?s establishment of a ?Special Panel? of the Board to review the Commission?s recommendation to reinstate Jonas to the Maine Bar as a violation of the Bar Rules and his due process rights.
[¶29] After the Board receives the recommendations and findings of the Commission on a petition for reinstatement, ?the Board . . . retains the ultimate responsibility for evaluating such recommendations and findings and making its own findings and recommendations to the Court.? Me. Bd. Of Overseers of the Bar Reg. No. 50, 1 Maine Manual on Professional Responsibility R-30 (2004). If the petitioner or Bar Counsel objects, ?the Board will . . . decide . . . what, if any, procedure to establish for hearing the objections to the findings and recommendations of the Commission or Panel.? Id. at R-30 to R-31. Thus, although the regulation does not explicitly mention the creation of a ?Special Panel,? it requires the Board to make independent recommendations and findings and gives the Board broad discretion to adopt an appropriate procedure to consider objections to the Commission?s report.
[¶30] Turning to the purpose of the rules, we have previously noted that, although the Court itself retains ultimate authority to regulate attorneys and the practice of law in Maine, it has delegated some of that authority to the Board of Overseers ?to develop a record and issue recommendations in reinstatement proceedings.? In re Williams, 2010 ME 121, ¶ 5, 8 A.3d 666. The creation of a Special Panel of the Board to review the Grievance Commission?s findings and seek additional input from the parties is consistent with this purpose.
[¶31] Based on the language of the applicable Bar Rules and Board Regulations and the purpose and role of the Board, it was neither inappropriate nor a violation of Jonas?s due process rights for the Board to appoint a ?Special Panel? of the Board to review the Grievance Commission?s recommendation and make its own recommendation to the full Board.8
b. Reinstatement Factors
[¶32] Jonas next argues that because he was seeking reinstatement after an administrative suspension, M. Bar R. 7.3(j)(4), the factors listed in M. Bar R. 7.3(j)(5) did not apply to his petition. That argument is simply incorrect.
[¶33] The procedure set out in 7.3(j)(5) applied to all types of petitions for reinstatement mentioned in section 7.3(j). See Bailey, 2014 ME 58, ¶¶ 16-17, 90 A.3d 1137; In re Williams, 2010 ME 121, ¶ 6, 8 A.3d 666. This does not mean that each factor would have similar weight in every case; rather, the factors would be considered to the extent that they applied to the petitioner. The Board and single justice appropriately applied the factors to determine whether Jonas had met his burden to demonstrate eligibility for reinstatement.
c. Due Process
[¶34] In addition to his argument that the procedures violated the Bar rules, Jonas argues that the procedures collectively violated his due process rights. We review alleged procedural due process violations de novo. See State v. Jones, 2012 ME 126, ¶ 35, 55 A.3d 432.
[¶35] We have previously held that due process in the context of bar proceedings ?consists of notice of the proceedings and an opportunity to be heard, including the right to confront and cross-examine witnesses.? See In re Williams, 2010 ME 121, ¶ 5, 8 A.3d 666.
[¶36] Jonas had both notice and the opportunity to be heard at every stage of the proceedings leading up to the single justice?s de novo trial. First, he had notice and the opportunity to present his petition to the Grievance Commission. After the Grievance Commission?and then the Board?issued recommendations, the single justice invited the parties to address the process employed by the Grievance Commission and the Board, where Jonas had the opportunity to brief and argue the procedural issues. Jonas was then provided a full de novo hearing before the single justice.9At each stage of the proceedings, Jonas was represented by capable counsel. He has had a full opportunity to obtain appellate review of the decision and process, and he will now have an opportunity to address excluded evidence on remand. Thus, Jonas was not deprived of due process during these proceedings. See In re Williams, 2010 ME 121, ¶¶ 5-9, 8 A.3d 666.
[¶37] Jonas next argues that the single justice erroneously took judicial notice of the facts found in judgments from other jurisdictions in which Jonas?s conduct was assessed. See M.R. Evid. 201. We review evidentiary rulings for clear error or abuse of discretion. State v. Dolloff, 2012 ME 130, ¶ 24, 58 A.3d 1032.
[¶38] As we have concluded, the Rules of Evidence did not apply in these proceedings. Bar reinstatement proceedings required the single justice to determine, inter alia, that the petitioner was of good moral character, and that reinstatement would not be detrimental to the integrity and standing of the Bar. See M. Bar R. 7.3(j)(5). In such a proceeding, the single justice was bound to consider the petitioner?s conduct as an attorney and litigant in determining whether the petitioner was eligible for reinstatement. Judgments and orders relating to prior litigation involving that attorney are uniquely relevant to that determination. Thus, pursuant to the reasonable person standard of admissibility, the single justice did not err or abuse her discretion in considering the extensive history of judgments and orders against Jonas. Cf. M. Bar R. 7.3(h)(4) (?A final adjudication in another jurisdiction that an attorney had been guilty of misconduct may be treated as establishing the misconduct for purposes of a disciplinary proceeding in this State.?). Furthermore, as a litigant in family matters and as an attorney facing potential discipline, Jonas had the motivation and formal opportunity to offer evidence and argument. Because of the process afforded in the prior proceedings and the nature of the proceedings before the single justice, the facts found in the judgments that were relied on by the single justice constituted the kind of information upon which a reasonable person would rely. The single justice did not err or abuse her discretion in considering the judgments involving Jonas, including the factual findings contained in those judgments.10
D. Remand
[¶39] Because the matter was tried with the understanding that the Rules of Evidence applied to the proceedings, the single justice may have excluded evidence that would otherwise have been admissible had the justice had the benefit of our opinion applying the reasonable person standard of evidence. We must therefore remand the matter for the single justice to make findings based on both the existing evidentiary record and any new evidence presented by either party on remand. On remand, the court must consider only (1) the evidence that was explicitly offered and excluded based on the application of the Rules of Evidence and that was not otherwise admitted, and (2) to the extent allowed by the single justice, any evidence of reinstatement or disciplinary actions, further litigation, or other evidence deemed relevant by the single justice that has occurred after the close of evidence in the original trial.
[¶40] The single justice must then determine on the entire record whether Jonas has satisfied his burden to demonstrate, by clear and convincing evidence, that he possessed the moral qualifications, competency, and learning in law required for admission to practice law in this State, as well as to demonstrate, by clear and convincing evidence, that it was likely that reinstatement would not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest. M. Bar R. 7.3(j)(5).
The entry is:
Judgment vacated. Remanded for further proceedings consistent with this opinion.
ALEXANDER, J., dissenting.
[¶41] I respectfully dissent from the Court?s decision to reconsider and revise its well-considered decision of March 16, 2017, 2017 ME 48.
[¶42] It should be apparent, without any doubt, that the minor items of character, reputation and credibility evidence Jonas claims were excluded by the single justice?s application of the Maine Rules of Evidence should not and cannot make any difference in the previously affirmed result. Such evidence from persons who, it would appear, are unlikely to be aware of the full scope of Jonas?s past practices is not going to make a difference given Jonas?s record of two decades of abusive litigation practices, disregard of his ethical obligations, and disrespect for court orders that formed the basis for the single justice?s decision that we affirmed.
[¶43] A properly preserved error in ruling on evidence is harmless ?if it is highly probably that the error did not affect the [single justice?s] judgment.? State v. Guyette, 2012 ME 9, ¶ 19, 36 A.3d 916 (quotation marks omitted); Williams v. United States, 503 U.S. 193, 203 (1992). It is more than highly probable that any error in exclusion of evidence by the single justice did not affect the judgment here.
[¶44] No prejudicial error having been demonstrated, I would summarily deny the motion for reconsideration.
James M. Bowie, Esq. (orally), Thompson & Bowie, LLP, Portland, for appellant Edwin R. Jonas III
Aria Eee, Esq. (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
Maine Supreme Judicial Court docket number Bar-13-16
FOR CLERK REFERENCE ONLY
1We treat the single justice?s decision on the petition for reinstatement as the judgment of a trial court and review it as an appellate body. See 4 M.R.S. § 57 (2016); In re Williams, 2010 ME 121, ¶ 1, 8 A.3d 666; In re Application of Feingold, 296 A.2d 492, 496 (Me. 1972).
2The Maine Bar Rules govern proceedings for attorney discipline and reinstatement, which are initiated with the Board of Overseers of the Bar. See M. Bar R. (Tower 2014). Proceedings for the admission of new attorneys to the bar are initiated with the Board of Bar Examiners and governed by the Maine Bar Admission Rules, which have not materially changed since Jonas filed his petition.
3The record does not contain a report or other written record of the recommendation of the Special Panel to the full Board.
4Similarly, the new Rules do not explicitly provide an evidentiary standard for reinstatement proceedings before the Commission. See M. Bar R. 29(g) (Tower 2015); see also id. 14(a)(1)-(2) (providing that the Rules of Evidence do not apply to disciplinary hearings before a Grievance Commission Panel). We note, without deciding, that the new Rules appear to indicate that when the Court holds a hearing on the Commission?s findings and recommendations in reinstatement proceedings, the Rules of Evidence apply. See id. 14(b)(1); 29(h).
5As we noted, the Bar Rules provided standards of evidentiary admissibility only for disciplinary proceedings. In disciplinary proceedings, the Bar Rules provided that hearings before the Commission were subject to the reasonable person standard of admissibility, whereas hearings before a single justice were subject to the Rules of Evidence, ?[t]o the extent appropriate.? See M. Bar R. 7.1(e)(2)(C), 7.2(b)(2).
6Although we have previously held to the contrary, see, e.g., In re Application of Spurling, 595 A.2d 1062, 1065 (Me. 1991), the cases in which we did so involved bar admission rules that have been superseded.
7The new Bar Rules explicitly subsume reinstatement from an administrative suspension longer than five years within the same process as is used for reinstatement from a disciplinary suspension longer than six months. See M. Bar R. 4(i), 29 (Tower 2015). The new rules also provide different criteria for reinstatement that have a greater disciplinary focus and are less similar to the criteria applicable to attorney admissions. See id. 29(e). For example, to be reinstated, a petitioner no longer has the burden to show the ?moral qualifications, competency, and learning in law required for admission.? Compare M. Bar R. 7.3(j)(5) (Tower 2014) with M. Bar R. 29(e) (Tower 2015). As noted, we do not opine on the standard of evidentiary admissibility that applies pursuant to the new Bar Rules.
8Moreover, Jonas?s objections to the Board?s processes have been rendered moot by the single justice?s decision to conduct a hearing during which Jonas and the Board were given the opportunity to present their evidence anew.
9Neither party contests the propriety of the single justice holding a de novo hearing in this matter.
10Because the parties spent considerable energy addressing the use of judicial notice in this matter, we briefly address the issue, despite its inapplicability to the proceedings before the single justice. During a trial in which the Rules of Evidence apply, courts may ?judicially notice,? and thereby conclusively establish, facts that are ?not subject to reasonable dispute because [they] . . . [c]an be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.? M.R. Evid. 201(b), (f). When a court takes judicial notice of a final judgment, from a Maine court or another court of competent jurisdiction, however, that ?notice? is limited to the existence of the judgment, and the action of the court. ?[A] court may take notice of another court?s order only for the limited purpose of recognizing the ?judicial act? that the order represents or the subject matter of the litigation.? United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994); see, e.g., Int?l Star Class Yacht Racing Ass?n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70-71 (2d Cir. 1998); United States v. Garland, 991 F.2d 328, 332 (6th Cir. 1993); Colonial Leasing Co. v. Logistics Control Group Int?l, 762 F.2d 454, 459 (5th Cir. 1985); see also Field & Murray, Maine Evidence § 201.3 at 57 (6th ed. 2007) (?A court will take judicial notice [pursuant to M.R. Evid. 201(b)(2)] of pleadings, dockets, and other records of that court in the same or in other lawsuits.?).
Contrary to the Board?s argument here, the factual findings contained within a judgment are not appropriate subjects for judicial notice. As the Eleventh Circuit explained, ?If it were permissible for a court to take judicial notice of a fact merely because it has been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.? Jones, 29 F.3d at 1553. The collateral estoppel doctrine, also known as issue preclusion, ?prevents a party from relitigating factual issues already decided if the identical issue necessarily was determined by a prior final judgment, and the party estopped had a fair opportunity and incentive to litigate the issue in the prior proceeding.? Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 16, 8 A.3d 677 (quotation marks omitted). In the matter before us, however, the Board did not assert the applicability of collateral estoppel. See Conary v. Perkins, 464 A.2d 972, 975-76 (Me. 1983); Reed v. Tracy, 435 A.2d 745, 746 (Me. 1981).
Because the court, here, could rely on findings in other jurisdictions? judgments pursuant to the reasonable person standard of evidentiary admissibility, we need not determine whether collateral estoppel would have applied in this case had the Board argued its applicability.
Board of Overseers of the Bar v. Seth T. Carey, Esq.
Download Download Decision (PDF)
Docket No.: BAR-16-15
Issued by: Maine Supreme Judicial Court
Date: June 8, 2017
Respondent: Seth T. Carey, Esq.
Bar Number: 009970
Order: Amended Order
Disposition/Conduct: Order amending paragraph #18 of 11/21/16 Court Order
M. Bar R. 13(g)
Based upon the parties jointly agreed upon request of May 30, 2017, the Court's disciplinary sanction Order dated November 21, 2016, is slightly amended such that "Condition 18" thereof now reads as follows:
# 18. Within 30 days of the date of this Amended Order, Attorney Carey shall commence evaluation and treatment with a licensed Maine psychologist. Attorney Carey shall provide the name and address of that psychologist (and any other professionals he is referred to) to MAP and to Bar Counsel. He shall instruct the evaluating and treating psychologist(s) to consult with the MAP Director to address any concerns identified by the Director. Attorney Carey shall follow the recommendations of the psychologist and any other treatment providers he may subsequently be referred to. Attorney Carey shall receive consistent treatment from those providers to promote continuity of care. MAP shall pay the cost(s) of such treatments up to a maximum of$2,000. In the event there is a change in provider(s), Attorney Carey shall notify MAP and Bar Counsel of such changes.
The remaining portions and all of the other required conditions of the Court's Order of November 21, 2016 shall remain in place.
Dated: June 8, 2017
G. Arthur Brennan
Active Retired Justice
Maine Superior Court
Board of Overseers of the Bar v. Robert M.A. Nadeau
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Docket No.: Jud-16-1 & Jud-17-1
Issued by: Maine Supreme Judicial Court
Date: June 20, 2017
Respondent: Robert M.A. Nadeau
Bar Number: 007460
Order: Suspension
Disposition/Conduct: Suspension
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 121
Docket: Jud-16-1
Argued: February 10, 2017
Docket: Jud-17-1
Submitted
On Briefs: May 22, 2017
Decided: June 20, 2017
Panel: SAUFLEY C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
PER CURIAM
[¶1] The Committee on Judicial Responsibility and Disability filed two reports with us?in our capacity as the Supreme Judicial Court?alleging a total of six violations of the Maine Code of Judicial Conduct by then York County Probate Judge Robert M.A. Nadeau and recommending sanctions.
[¶2] A report, filed January 19, 2016, docket number Jud-16-1, alleged five violations of the Maine Code of Judicial Conduct arising from Judge Nadeau?s actions while a judge-elect or a sitting judge.1 A second report, filed March 16, 2017, docket number Jud-17-1, alleged one violation of the Maine Code of Judicial Conduct arising from allegations that Judge Nadeau used his law firm web page to solicit donations to support his campaign for reelection as York County Probate Judge. Because the two reports from the Committee were filed at different times and were considered through different procedures by the Committee and this Court, the ethical violations addressed in each report will be addressed separately in this opinion.
A. Jud-16-1 Proceedings
[¶3] ?[T]he Supreme Judicial Court has exclusive original jurisdiction? in matters of judicial discipline. In re Nadeau, 2007 ME 21, ¶ 10, 914 A.2d 714. Invoking that authority, on January 19, 2016, the Committee filed a report alleging that Judge Nadeau committed five violations of the Maine Code of Judicial Conduct.3 See M.R. Comm. Jud. Responsibility & Disability 3.
Count 1 alleged that then Judge-elect Nadeau?s directive to the Register of Probate of York County not to include seven attorneys on the court appointed attorney list was motivated by his previous contentious relationship with those attorneys, in violation of Judicial Canons 2(B) and 3(C)(4); Count 2 alleged that Judge Nadeau?s removal of an attorney from cases to which she had previously been appointed was motivated by her association with an attorney with whom Nadeau had a contentious relationship, in violation of Canon 2(A) and (B);
Count 3 alleged that?in a case in which he had recused himself? Judge Nadeau ordered an attorney to destroy a lawfully obtained public document, in violation of Canon 2(A);
Count 4 alleged that Judge Nadeau?s abrupt overhaul of the Probate Court schedule was motivated by his anger with the York County Commissioners when his request for a pay increase was rejected, in violation of Canons 1, 2(A) and (B), and 3(B)(8); and
Count 5 alleged that Judge Nadeau was, through oral and written orders, encouraging litigants before him to contact their county officials to lobby for increased court funding, which would also increase his salary, in violation of Canon 2(B).
[¶4] The Committee requested that Judge Nadeau be fined $10,000 and, by means of a conditional suspension from the practice of law, be barred from ever holding judicial office again.
[¶5] Following receipt of the report in Jud-16-1, the Court, in a procedural order dated February 22, 2016, appointed an Active Retired Justice of the Supreme Judicial Court (Clifford, J.) to preside as a Hearing Justice and to conduct a de novo hearing at which the Committee and Judge Nadeau could present evidence and argument regarding the allegations. See In re Ross, 428 A.2d 858, 860 (Me. 1981).
[¶6] A two-day evidentiary hearing was held on May 10 and June 16, 2016. The Hearing Justice issued findings on July 15, 2016. Based on those findings, the Hearing Justice concluded that the Committee had proved four of the five counts alleged in the Committee?s report. Pursuant to a subsequent procedural order, we requested that the parties file further argument on the merits of the Committee?s charges and on what sanctions, if any, should be imposed if we were to conclude that a violation or violations of the Code had occurred. The Hearing Justice?s detailed findings and conclusions are now before us for consideration and decision after receiving briefs and, on February 10, 2017, hearing arguments by the Committee and Judge Nadeau.
B. Jud-17-1 Proceedings
[¶7] On March 16, 2017, approximately one month after oral argument in the Jud-16-1 matter, the Committee filed its second report. This report alleged a single violation of the Maine Code of Judicial Conduct by Judge Nadeau while he was a candidate for reelection as Probate Judge. The report had been filed after the Committee had notified Judge Nadeau of the alleged violation and, by letters dated November 13, 2016, and January 17, 2017, Judge Nadeau had waived a hearing before the Committee regarding the alleged violation.
[¶8] The report alleged that ?on or about June 14, 2016, Judge Nadeau violated this Rule4 by posting a message on his private law firm website that stated, among other things, ?It will be important for me to have lots of support, including donations to my campaign?s committee known as the Committee to Re-elect Judge Nadeau (in care of [a named individual and address]).?? The Rule at issue in the report is Rule 4.2(C)(1) of the Code of Judicial Conduct (effective September 1, 2015),5which states:
(C) A candidate for election or reelection as judge of probate shall not:
[¶9] After the parties? initial filings and responses, we issued procedural orders confirming that (1) attachments A through F to the parties? filings constituted the factual record upon which a decision could be based; (2) no further argument before this Court was requested; and (3) a briefing schedule was set after which the report proceeding in Jud-17-1 would be decided along with the report proceeding in Jud-16-1. The briefing schedule having been adhered to, with a final brief filed on May 22, 2017, the matter is now ready for decision.
A. Judicial Misconduct in Jud-16-1
[¶10] Pursuant to our February 22, 2016, procedural order, the Hearing Justice?s findings ?shall be treated in the same manner as findings made by a referee pursuant to M.R. Civ. P. 53(e)(2).? Rule 53 instructs that the court ?shall adopt the referee?s findings of fact unless clearly erroneous.? M.R. Civ. P. 53(e)(2); see also Hennessy v. Fairley, 2002 ME 76, ¶¶ 17-18, 796 A.2d 41. Because the findings of the Hearing Justice are supported by the record, we adopt those findings.6 See In re Nadeau, 2016 ME 116, ¶ 4, 144 A.3d 1161 (adopting findings of the Hearing Justice that are properly supported by the record).
[¶11] Based on the adopted findings, we proceed to determine, on a de novo basis, whether Judge Nadeau violated the Code. Id. ¶ 5. In doing so, we ?give no deference to the Committee?s report, even though the Committee is charged with deciding administratively whether a charge has been established.? Id. (citation omitted). The burden of proving the allegations contained in the report rests with the Committee. Id.
[¶12] ?The delivery of justice and public confidence in the integrity of the judiciary necessarily rests on judicial officers? adherence to the ethical standards prescribed in the Code.? Id. ¶ 8. The Judicial Canons are in place to provide an ethical guide to judicial conduct and ensure that judges act in a way that is ?fitting of judicial office and fulfills their crucial responsibility to protect the public trust of a system that is founded on the rule of law.? Id. As the Preamble to the 1993 Code made clear, the Canons provide ?rules of reason.? See M. Code Jud. Conduct Preamble (Tower 2014).
It is not intended . . . that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the Code and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity, and the effect of the improper activity upon others or upon the judicial system.
Id. Thus, ?the application of the Canons requires sensitivity to the extraordinarily important objectives they served, viewed in the particularized ?circumstances and conditions in which judges must operate.?? In re Nadeau, 2016 ME 116, ¶ 9, 144 A.3d 1161 (quoting Advisory Committee?s Notes to Preamble, 1993 promulgation of former M. Code Jud. Conduct (effective Sept. 1, 1993), available at West?s Maine Rules of Court Annotated 594 (Thomson Reuters 2016)).
[¶13] With these considerations in mind, and after review of the adopted findings and applicable Canons of Judicial Conduct, we concur with the Hearing Justice?s conclusions as to Counts 1, 2, and 5. As to Count 3, we adopt the Hearing Justice?s findings, but we conclude, as a matter of law, that Judge Nadeau?s conduct addressed in Count 3 resulted in a violation of the applicable Canons of Judicial Conduct. As to Count 4, we adopt the Hearing Justice?s findings, but we conclude, as a matter of law, that no violation of the applicable Canons of Judicial Conduct has been demonstrated.
[¶14] Robert M.A. Nadeau served as the elected Probate Judge in York County. (FoF. 2.) He was elected to that position in 1996, 2000, and 2004. (FoF. 2.) He lost the election for the Probate Judge position in 2008, but he was once again elected in 2012. (FoF. 2.) The conduct at issue took place following his election in 2012 and prior to completion of his term and leaving office on January 1, 2017. See Me. Const. art. VI, § 6.
[¶15] Following his reelection in November of 2012, then judge-elect Nadeau sent an email to the York County Register of Probate, Carol Lovejoy, and directed that she not include seven attorneys on the list of attorneys eligible to receive court appointments for cases in the York County Probate Court. (FoF. 2-3.) Regarding four of the seven attorneys?Thomas Elias, Pamela Holmes, Amy McGarry, and Vicki Mathews?judge-elect Nadeau stated in his email that he ?lack[ed] confidence in their veracity.? (FoF. 3.) As to the remaining three attorneys?Amanda Ramirez, Angela Thibodeau, and Sharon Ward?he stated that it would be best not to appoint them because they were associated in their law practice with Attorney Holmes. (FoF. 3.)
[¶16] Attorneys Elias and Holmes had been associated with Nadeau in his law firm and were later involved in litigation with Nadeau when they decided to leave his practice. (FoF. 3.) That litigation was very contentious. (FoF. 3.) Attorney McGarry also practiced in Nadeau?s law firm, but she left and began practicing with Attorney Holmes. (FoF. 4.) Attorney Mathews had supported Judge Nadeau?s political opponent in the 2012 election for Judge of Probate and openly criticized Judge Nadeau in email correspondence that was circulated throughout York County. (FoF. 4.)
[¶17] Judge Nadeau asserted that his reason for not including the seven attorneys on the court-appointed list was because he would have to recuse himself from those cases, which the Probate Court budget could not support. (FoF. 4.) Months later?in April 2013?he sought and received an opinion from the Advisory Committee on Judicial Ethics, which informed him that in qualifying cases he should appoint attorneys for indigent persons impartially, even if doing so may result in his disqualification from cases and added expense to the court. (FoF. 5.) Because of that opinion, Judge Nadeau directed the Register that those seven attorneys were eligible to be appointed to cases before the court. (FoF. 5.)
[¶18] Although Judge Nadeau did rescind the do not appoint directive, damage had been done to all of the attorneys implicated. (FoF. 5.) Their credibility was called into question, and their reputations were harmed as a result. (FoF. 6.)
[¶19] Although Judge Nadeau may have referenced court budget concerns, he was also ?substantially motived by ill will toward those seven attorneys on the do not appoint list, especially the four whose credibility he questioned.? (FoF. 6.) In particular, the directive to not appoint Attorneys Holmes and Elias was influenced by Judge Nadeau?s past contentious relationship with them. (FoF. 3.)
[¶20] The Committee alleges this conduct violated Judicial Canons 2(B) and 3(C)(4). These Canons provided that ?[a] judge shall not allow family, social, political, or other relationships to influence the judge?s judicial conduct or judgment,? M. Code Jud. Conduct Canon 2(B), and ?[a] judge shall exercise the power of appointment impartially and on the basis of merit,? id. Canon 3(C)(4).
[¶21] The email directive not to appoint, as well as the policy?s continuation after Judge Nadeau assumed office until its rescission in April of 2013, constituted a violation of the Maine Code of Judicial Conduct. Judge Nadeau allowed his personal relationships with the attorneys to dictate how he appointed attorneys?a decision he did not base on merit or carry out in an impartial manner?which constitutes a violation of Canons 2(B) and 3(C)(4).
[¶22] In January 2013, shortly after Judge Nadeau assumed office, he ordered that Attorney Amanda Ramirez be removed from three active cases then pending before the York County Probate Court?cases to which she had previously been appointed. (FoF. 6.) Attorney Ramirez was practicing with Attorney Holmes at the time. (FoF. 6.) Although the removal of Attorney Ramirez from those three cases was vacated within one court day, the order caused her considerable consternation and concern. (FoF. 7.)
[¶23] The Committee contends that, under these facts, the removal of Attorney Ramirez violated Canon 2(A) and (B), which provided that ?[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,? M. Code Jud. Conduct Canon 2(A), and ?[a] judge shall not allow family, social, political, or other relationships to influence the judge?s judicial conduct or judgment,? id. Canon 2(B).
[¶24] Although Judge Nadeau?s decision was motivated, in part, by Probate Court budgetary concerns, it was also motived by his animosity toward Attorney Holmes and her law firm. (FoF. 6-7.) This conduct constituted a violation of the Maine Code of Judicial Conduct. Because Judge Nadeau?s actions did not promote public confidence in the integrity and impartiality of the judiciary, and because he allowed his adverse relationship with Attorney Holmes to influence his judgment regarding another attorney, he violated Canon 2(A) and (B).
[¶25] In early 2013, Attorney Holmes learned about and lawfully obtained a copy of Judge Nadeau?s November 2012 email directive to the Register of Probate not to include her and the six other attorneys on the court appointment list. (FoF. 7.) Based in part on this information, Attorney Holmes filed an objection and motion to transfer a pending case?a case on which she had previously been appointed?to a different probate judge. (FoF. 7-8.) Judge Nadeau originally denied the motion, but upon a motion to reconsider, granted the transfer to another probate judge. (FoF. 8.) In the order granting the transfer, Judge Nadeau directed Attorney Holmes to ?immediately destroy? all evidence relating to the do not appoint directive that she had identified in her motion to transfer. (FoF. 8.) The order directed that she certify her compliance within seven days. (FoF. 8.)
[¶26] Attorney Holmes did not comply with the order, and Judge Nadeau filed a complaint against her with the Board of Overseers of the Bar. (FoF. 8.) Attorney Holmes hired a lawyer to represent her during those proceedings. (FoF. 8.) The Grievance Panel found that Attorney Holmes violated M.R. Prof. Conduct 3.4(c),7 but it dismissed the complaint with a warning. See Me. Grievance Comm?n, File No. 13-145 (Dec. 15, 2014); (FoF. 8).
[¶27] The Committee argues that the order to destroy a lawfully obtained public document violated Canon 2(A), which provided that ?[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.? M. Code Jud. Conduct Canon 2(A).
[¶28] Although we adopt the findings of the Hearing Justice, we conclude as a matter of law?despite the Hearing Justice?s conclusion to the contrary?that the conduct addressed in Count 3 is a violation of the Code. See In re Nadeau, 2016 ME 116, ¶ 5, 144 A.3d 1161 (observing that after adopting the Hearing Justice?s findings, we determine de novo whether a violation of the Code has occurred).
[¶29] As the Grievance Panel observed, the document obtained was a public record as defined by the Freedom of Access Act, 1 M.R.S. § 402(3) (2016), and was not within any of the statutory exceptions. See Me. Grievance Comm?n, File No. 13-145 (Dec. 15, 2014). Because the document Judge Nadeau ordered Attorney Holmes to destroy was a lawfully obtained public document, and because the order to destroy had been issued in connection with a case from which he had recused, we conclude, as a matter of law, that Judge Nadeau violated the Code.8 See M. Code Jud. Conduct Canon 2(A).
[¶30] On April 1, 2015, Judge Nadeau presented to the York County Commissioners a detailed proposal to increase the number of days that the York County Probate Court would be in session. (FoF. 9-10.) Part of this proposal included an increase in his annual salary from $48,498.77 to $90,000, for three court days per week,9 or to make the Probate Judge position full-time at a salary of $119,476. (FoF. 10.) Although it is unclear when or to what extent the Commissioners considered Judge Nadeau?s proposed changes to the court schedule and to his compensation, at the April 15 Commission meeting, Judge Nadeau?s proposed schedule changes and pay increase were rejected with little or no discussion. (FoF. 11.)
[¶31] As the Hearing Justice found, ?within minutes? after the Commissioners? vote to reject his proposal, at 5:36 p.m., Judge Nadeau directed the Register of Probate, via email, to make immediate changes to the Probate Court schedule. (FoF. 11.) The changes resulted in an increase in the time between hearings on returnable probate estates, name changes, and adoptions involving home studies. (FoF. 11.) The changes included blocking off a half day every other week to give Judge Nadeau time to write and blocking off from 3:00 p.m. to 4:30 p.m. every Wednesday to provide time for walk-in emergencies. (FoF. 11.) The email concluded with, ?We have to put users of the court ahead of county budget non-support.? (FoF. 11.)
[¶32] A few hours later, at 12:07 a.m., Judge Nadeau sent another email to the Register of Probate, directing her to change the days scheduled for Probate Court from Wednesdays and Thursdays to Mondays and Fridays from 8:00 a.m. to 4:30 p.m., with no hearings after 4:00 p.m. (FoF. 11.) The email required the Register to reschedule any hearings that had already been scheduled and to schedule future hearings to comply with the new schedule. (FoF. 12.)
[¶33] Later in the morning after the rejection of his proposed schedule changes and salary increase, at 8:46 a.m., Judge Nadeau sent yet another email to the Register of Probate criticizing the County?s unwillingness to support his request for additional court time. (FoF. 12.) In the email, he ordered a full trailing docket list for trials and two to three days for cases to be addressed without trial. (FoF. 12.) The schedule was later finalized to include the first two Mondays of each month, the entire third week of the month, and the last Friday of each month.10 (FoF. 12.) All hearings were to be concluded by 3:30 p.m., and any court holidays falling on a Monday would not be made up. (FoF. 12.)
[¶34] These changes to the Probate Court schedule did, in the long run, result in overall improvements. (FoF. 13.) Although the changes were beneficial to the court, the initial action by Judge Nadeau was motivated, ?at least in substantial part, by his anger and disappointment at the County Commission?s refusal to consider and implement the changes he proposed to them, to increase the scheduled court time and the judge?s compensation.? (FoF. 13.) The changes were made ?immediately after? Judge Nadeau?s pay increase proposal was rejected and were made without sufficient time for reflection, especially given that the schedule resulted in less time for cases to be processed and addressed by the Probate Court, and resulted in scheduling and rescheduling delays. (FoF. 13.)
[¶35] The Committee argues that the issue of Judge Nadeau?s motivation for the abrupt schedule change is foreclosed by collateral estoppel because it was previously litigated and decided in LeGrand v. York County Judge of Probate, No. YORSC-CV-2015-269 (Me. Super. Ct., York Cty., Mar. 29, 2016). In LeGrand, the Superior Court (York County, Warren, J.) found that the schedule changes, in large part, were implemented by Judge Nadeau ?to get back at the County Commissioners who had rejected [his] request for an increase in salary and court time.? Id. at 10. Although Judge Nadeau argues that the factual issue was not identical, nor fully litigated by him, the Hearing Justice here?independent of whether the Hearing Justice?s findings should be bound by collateral estoppel??reach[ed] the same conclusion as the Superior Court in Legrand, and [found] that the changes implemented by Judge Nadeau were motivated, at least in substantial part, by his anger at and disappointment with the County Commissioners.? (FoF. 14.) Because the Hearing Justice independently made the same findings as the Superior Court, we need not further discuss application of collateral estoppel.
[¶36] The Committee contends that these actions violated Canons 1, 2(A) and (B), and 3(B)(8). These Canons provided that ?[a] judge should . . . maintain[] . . . high standards of conduct . . . so that the integrity and independence of the judiciary will be preserved,? M. Code Jud. Conduct Canon 1, ?[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,? id. Canon 2(A), ?[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge,? id. Canon 2(B), and ?[a] judge shall dispose of all judicial matters promptly, efficiently, and fairly,? id. Canon 3(B)(8).
[¶37] Although the schedule changes, or at least the final schedule change, resulted in an overall improvement to the Probate Court?s efficiency, the Hearing Justice did not err in finding that the changes were motivated, at least in part, by Judge Nadeau?s anger and disappointment with the County Commissioners after they rejected his request for increased court days and increased salary. (FoF. 13-15.) This motivation is demonstrated by the intemperate late in the day and midnight directives mandating scheduling changes that ultimately were replaced by a schedule adopted after more deliberate reflection and consultation. The initial changes were made without significant time for reflection, especially given that the new schedule resulted in less time for cases to be processed and addressed by the Probate Court, and resulted in scheduling and rescheduling delays.11 (FoF. 13.) The initial decisions were made without consultation with the Probate Court staff, which Judge Nadeau has acknowledged was a mistake. (FoF. 13.)
[¶38] Relevant to the issues asserted by the Committee regarding Count 4, the Code of Judicial Conduct in place at the time provided as follows:
? ?A judge shall diligently discharge the judge?s administrative responsibilities without bias or prejudice and shall maintain professional competence in judicial administration.? Id. Canon 3(C)(1).
? ?A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.? Id. Canon 1.
? ?A judge . . . shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.? Id. Canon 2(A).
? ?A judge shall not lend the prestige of judicial office to advance the private interests of the judge . . . .? Id. Canon 2(B).
? ?A judge shall dispose of all judicial matters promptly, efficiently, and fairly.? Id. Canon 3(B)(8).
[¶39] Like all Maine Probate Courts, the York County Probate Court has one part-time judge to manage the County?s probate caseload. In adjusting to the fluctuating demands on the Probate Courts, probate judges must exercise their authority to administer justice effectively, efficiently, and fairly given the constraints of the office. See id. Canon 3(B)(8), (C)(1). It is not a violation of the Code of Judicial Conduct for a judge faced with administrative challenges to identify those challenges to the county commissioners or the public, or to change the court schedule to give priority to certain cases in a meaningful way, even if the establishment of new priorities disadvantages certain case types. Nor is it a violation of the Code of Judicial Conduct for a judge to inform others when the hours of operation supported by the county commissioners are insufficient to enable the court to reach the matters that require the court?s attention in a timely fashion.
[¶40] The structure of Maine?s Probate Courts creates a risk, however, that a probate judge may cross the line between proper administration and improper conduct advancing the judge?s private interest. See id. Canons 2(B), 3(C)(1). If the Code of Judicial Conduct is applied in an overly restrictive fashion, the person who may best know whether a particular Probate Court is functioning properly?namely, that county?s probate judge?will be constrained in speaking about the needs of the court if proposals designed to meet those needs could result in an increased salary for that judge.
[¶41] While the State court system has an institutional structure that allows its judges, including the Chief Justice, the Supreme Judicial Court, the trial court chiefs, and regional judges, to speak broadly of court needs, see 4 M.R.S. §§ 1, 101-A, 157(1)(B) (2016); Establishment of Judicial Regions, Me. Admin. Order JB-08-01 (effective July 1, 2008), a probate judge must exercise judicial and administrative authority alone, see 18-A M.R.S. § 1-302 (2016). This arrangement can leave the judge with a Hobson?s choice: speak out about the need for more court hours, thereby arguing at the same time for greater judicial compensation, and risk a charge of violating the Canons by appearing to use the judicial position to advance the judge?s own interests; or remain silent and fail to advocate for better public service within that county?s Probate Court.
[¶42] The matter now before us illuminates the challenges facing a probate judge who attempts to satisfy the broad and varied requirements of the position. To be sure, the allegations in Count 4 that relate directly to the judge?s responsibility to advocate for the public benefit are intertwined with Judge Nadeau?s less salutary behavior that complicates the analysis. Separate from those behaviors, however, there is no question that Judge Nadeau determined that additional court time was needed; that he provided information to the County Commissioners regarding the need for additional time; that the Commissioners declined to support more time (and thus more compensation); and that the judge responded by changing the schedule in order to address the higher conflict cases, many involving children, that were not being reached. (FoF. 9-13, 15.)
[¶43] The difficulty arises from the Hearing Justice?s finding that Judge Nadeau?s actions in responding to the Commissioners? decision not to increase court hours were ?impetuous? (FoF. 15) and were instituted, without first consulting with court staff or others, immediately following the County Commissioners? vote (FoF. 11-13).
[¶44] Judge Nadeau?s intemperate behavior was unfortunate and could undermine the public?s trust and confidence in the Probate Court. This particular jurist has been subject to disciplinary actions involving intemperate behavior on prior occasions. See In re Nadeau, 2016 ME 116, ¶¶ 13-19, 144 A.3d 1161; Bd. of Overseers of the Bar v. Nadeau, No. Bar-05-03, 2006 Me. LEXIS 167 (Me. Mar. 2, 2006).
[¶45] Given the context of the judge?s actions, and the fact that members of the public ultimately benefitted from those actions, however, we conclude that the changes in court process instituted for purposes of operating within budget and time constraints, even though undertaken during a time of emotional agitation, did not, on these facts, constitute an ethical violation. Although the judge?s ?impetuous? behavior (FoF. 15) is regrettable, we conclude that a violation of the Code of Judicial Conduct is not demonstrated with regard to Count 4.
[¶46] In May and June 2015, Judge Nadeau issued orders and made statements during Probate Court hearings urging litigants who were before him and seeking court action on pending cases to contact their County Commissioners to support increased funding for more Probate Court time so that pending cases in which litigants were seeking action could be resolved more quickly. (FoF. 16.) This urging to petition for increased funding, tied to litigants? requests for action in matters pending in the court where he presided, would directly benefit Judge Nadeau because increased court time meant increased judicial compensation, as his salary was based on scheduled court days and hours. (FoF. 16.)
[¶47] Specifically, in a May 4, 2015, order rescheduling a hearing, Judge Nadeau wrote that
the one-day hearing may be rescheduled to an earlier date if one is available. However, the County of York has expressed its unwillingness to fund needed additional court days. The county commissioner serving [the litigant?s] community is Michael Cote, and the County Manager opposing extra judicial funding is Gregory Zinser [telephone number].
In another order, Judge Nadeau instructed that the attorneys should
report to the Register how much hearing time will be needed, so that scheduling may occur accordingly. As the York County Commissioners have refused to support funding for additional judicial time, any concern regarding delays should be directed to the parties? county commissioner, Michael Cote [telephone number] and Marston Lovell [telephone number].
In a different order, Judge Nadeau wrote that the ?parties may wish to direct their concerns about scheduling delays to the county manager, Gregory Zinser, [telephone number], as he has been reluctant to support the funding of additional court time.?
[¶48] Additionally, Judge Nadeau stated on the record during a hearing that ?we?ve been asking for more court time?funding for more court time in this court, and we have not been successful with the County Commission so far.? He went on to provide the contact information of the applicable county commissioner, and suggested that the litigants and attorneys ?call . . . and discuss the problems with inability to accommodate a sooner hearing . . . [a]nd maybe if enough of these commissioners hear from enough people, including attorneys, about the problems here and the need for more court time, maybe they?ll . . . be willing to support it and fund it.?
[¶49] Many courts are underfunded. Judges talk about such underfunding regularly. Often judges urge members of the bar and the public to contact appropriate authorities who control the purse strings to support increased funding. There is no ethical violation in urging such contacts to support increased funding for courts. As the Hearing Justice found, ?efforts to persuade the County Commissioners, and the bar, and the public, that the court needs increased funding, would be legitimate and fully authorized? by Canon 5(A)(1)(f). (FoF. 16.) What sets this case apart from common efforts by judges to support increased funding for courts is Judge Nadeau?s urging litigants in cases before him to contact county authorities to support funding that would have the direct effect of increasing Judge Nadeau?s compensation.
[¶50] The Committee alleges that advising litigants to contact county authorities for this purpose violated Canon 2(B), which provides that ?[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge.? M. Code Jud. Conduct Canon 2(B).
[¶51] Judge Nadeau?s argument that his actions were consistent with the judicial canons because he was acting ?to improve the law, the legal system, or the administration of justice,? M. Code Jud. Conduct 5(A)(1)(f), is unpersuasive in light of the Hearing Justice?s explicit findings. (FoF. 16.) ?[Judge Nadeau] should not have been urging litigants in cases before him in such a manner, however. His judicial salary is so closely tied to the number of court days, and he would so directly benefit from an increase in funds for more court days, [that] there was a violation of Canon 2(B).? (FoF. 16.)
[¶52] Although we recognize the difficult situation that the structure of the Probate Courts creates, see supra ¶¶ 40-41, the judge here went too far in urging advocacy on his behalf by litigants who needed and deserved his neutrality. Based on the Hearing Justice?s findings, we conclude, as did the Hearing Justice, that Judge Nadeau violated Canon 2(B) because he was using the power and prestige of his judicial office to advance his own private interests.
B. Judicial Misconduct in Jud-17-1
[¶53] In the summer of 2016, Judge Nadeau?s law firm?s website sought ?lots of support? for his candidacy, ?including donations to [his] campaign?s committee.? The record also reflects that the website solicitation ?generated absolutely no donations?; the donations were directed to be made to a campaign committee, not to Judge Nadeau personally; and the website solicitation for donations was removed promptly after the Committee notified Judge Nadeau, in September 2016, that the website solicitation may have constituted an ethical violation.
[¶54] Judge Nadeau argues that, because the application of the Code of Judicial Conduct should be ?interpreted reasonably,? and because he did not directly solicit any individual for contributions, and his campaign committee received no contributions as a result of the website solicitation, he should not be found to have violated Rule 4.2(C)(1).12
[¶55] Rule 4.2(C)(1) expressly prohibits a candidate for election or reelection as a Probate Judge from personally soliciting campaign contributions. See M. Code Jud. Conduct R. 4.2(C)(1). It makes no difference whether the solicitation was successful or not. The solicitation, not its success or failure, is what is prohibited. Based on the undisputed facts, we conclude that Judge Nadeau violated Rule 4.2(C)(1) in soliciting donations to his reelection campaign through his personal law firm website.13
[¶56] Considered in isolation, this violation of Rule 4.2(C)(1) would not likely generate any sanction beyond a reprimand. But considered in the context of Judge Nadeau?s history of prior violations of his judicial ethical obligations, and given that this violation occurred while proceedings regarding the violations alleged in Jud-16-1 were pending before the Hearing Justice, this violation is further confirmation of a troubling pattern of disregard of ethical obligations that cannot be ignored in determining the appropriate sanction for the several violations of ethical obligations found in this opinion.
C. Mootness
[¶57] To the extent Judge Nadeau argues that the issue of sanctions for his judicial actions is moot because he no longer holds judicial office, we have previously addressed and rejected this contention. See In re Cox, 658 A.2d 1056, 1057-58 (Me. 1995) (observing that the end of a judge?s judicial tenure does not render the imposition of sanctions meaningless or extrajudicial when addressing conduct that occurred while serving in a judicial capacity).
[¶58] Because the issue of sanctions is not moot, as a matter of law, we do not need to expand the record to include evidence of Nadeau?s intent to seek judicial office during the next election, and accordingly we deny the Committee?s motion to do so.
D. Sanctions
[¶59] Having determined that Judge Nadeau violated the Code because of his do not appoint directive, as charged in Count 1; his removal from pending cases of a previously appointed attorney, as charged in Count 2; his order to destroy a lawfully obtained public document, as charged in Count 3; his issuance of orders urging litigants before him to lobby for increased court time, as charged in Count 5, and his personal solicitation of campaign contributions, as charged in the report in Jud-17-1, we next determine what sanctions, if any, should be imposed. See In re Nadeau, 2016 ME 116, ¶ 44, 144 A.3d 1161.
[¶60] In fashioning an appropriate sanction, ?we examine multiple factors, including the judge?s professional history, the context within which the violations occurred, the harm to the litigants and public, the seriousness of the violations, the judge?s acknowledgement of the violations and understanding of the impact on the litigants, and the prospects for ensuring public trust and confidence in the judge?s work in the future.? In re Holmes, 2011 ME 119, ¶ 4, 32 A.3d 1011 (citing M. Code Jud. Conduct Preamble). A sanction ?must be sufficient to deter the individual being sanctioned from again engaging in such conduct and to prevent others from engaging in similar misconduct in the future.? In re Ross, 428 A.2d at 869.
[¶61] We have the inherent authority to impose a variety of sanctions as judicial disciplinary measures?some of which Judge Nadeau has already been subject to. Available sanctions include, but may not be limited to, requirements for obtaining appropriate assistance or ethics education, censure, reprimand, forfeiture of funds, suspension from duties, and disbarment or the lesser sanction of suspension from the practice of law. See, e.g., In re Nadeau, 2016 ME 116, ¶ 50, 144 A.3d 1161 (censure, reprimand, suspension from judicial duties); In re Nadeau, 2007 ME 35, ¶ 7, 916 A.2d 200 (censure, suspension which would be reduced upon enrollment in the Maine Assistance Program and completion of judicial ethics course, forfeiture of $1,000); In re Cox, 658 A.2d at 1058 (Me. 1995) (disbarment)14; In re Benoit, 523 A.2d 1381, 1384-85 (Me. 1987) (censure, suspension, forfeiture of $1,000, required course in judicial ethics); In re Kellam, 503 A.2d 1308, 1312 (Me. 1986) (censure, suspension, forfeiture of $3,500); In re Benoit, 487 A.2d 1158, 1174-75 (Me. 1985) (censure, suspension, forfeiture of $1,000); In re Ross, 428 A.2d at 868 (suspension).
[¶62] This is now the fourth time that Judge Nadeau has appeared before us for ethical violations, and the third time for conduct that occurred while serving in a judicial capacity. See In re Nadeau, 2016 ME 116, 144 A.3d 1161; In re Nadeau, 2007 ME 21, 914 A.2d 71415; Bd. of Overseers of the Bar v. Nadeau, Bar-05-03, 2006 Me. LEXIS 167 (Mar. 2, 2006). Here, his actions were often carried out in an intemperate and vindictive fashion against former colleagues of his law practice and their associates. Attorneys? reputations were harmed, and litigants before him were pressured to support his efforts to increase court resources and his compensation. Judge Nadeau has not fully acknowledged the intemperate nature of his decisions.16
[¶63] We have already acknowledged that ?prior corrective efforts have not been effective in dissuading [Judge Nadeau] from engaging in intemperate conduct prohibited by the Canons.? In re Nadeau, 2016 ME 116, ¶ 49, 144 A.3d 1161. This time, therefore, more severe sanctions are warranted. It is hereby ordered that Robert M.A. Nadeau forfeit $5,000 and be suspended from the practice of law for two years, commencing August 1, 2017, and shall comply with the requirements of Maine Bar Rule 31.
The entry is:
It is ORDERED that former York County Probate Judge Robert M.A. Nadeau forfeit $5,000 and be suspended from the practice of law in Maine for two years, commencing on August 1, 2017, for violations of Canons 2(A), 2(B), and 3(C)(4), of the 1993 Maine Code of Judicial Conduct, as alleged in Counts 1-3 and 5 of the Report of the Committee on Judicial Responsibility and Disability in Jud-16-1, and for violation of Rule 4.2(C)(1) of the 2015 Maine Code of Judicial Conduct as alleged in the Report of the Committee on Judicial Responsibility and Disability in Jud-17-1.
Cabanne Howard, Esq. (orally), Committee on Judicial Responsibility and Disability, Portland, for the Committee on Judicial Responsibility and Disability
Robert M.A. Nadeau (orally), pro se
1Regarding the matters at issue in Jud-16-1, Robert M.A. Nadeau was judge-elect or the sitting York County Probate Judge at the time of all of his judicial actions addressed in this proceeding and at the time of all matters considered by the Committee on Judicial Responsibility and Disability and by the Hearing Justice appointed by this Court. He was not reelected in the November 2016 election and ceased to hold office January 1, 2017. See Me. Const. art. VI, § 6. The February hearing before this Court in Jud-16-1 occurred after he left office. For purposes of this opinion, however, Robert Nadeau will be referred to as ?Judge Nadeau? because he held judicial office at the time the conduct at issue occurred.
2Judge Nadeau?s conduct while serving as Probate Judge in York County has resulted in violations of the Maine Code of Judicial Conduct and discipline on two previous occasions that resulted in three prior opinions. See In re Nadeau, 2016 ME 116, 144 A.3d 1161; In re Nadeau, 2007 ME 35, 916 A.2d 200; In re Nadeau, 2007 ME 21, 914 A.2d 714. His conduct regarding the abrupt rescheduling of Probate Court matters?at issue here pursuant to Count 4?also gave rise to an action currently on appeal to us. See LeGrand v. York County Judge of Probate, No. YORSC-CV-2015-269 (Me. Super. Ct., York Cty., Mar. 29, 2016); LeGrand v. York County Judge of Probate, Law Ct. No. Yor-16-194 (Me. Apr. 26, 2016).
3The Maine Code of Judicial Conduct was promulgated in 1993 and became effective that year. See M. Code Jud. Conduct II(2) (Tower 2014). The 1993 Code and amendments to it have since been superseded by a revised version that became effective on September 1, 2015. See M. Code Jud. Conduct II (Tower 2015). Because the conduct alleged in Jud-16-1 occurred before September 1, 2015, the version applicable to that proceeding is the 1993 version. Therefore, citations, quotations, and discussion pertaining to Jud-16-1 will be drawn from the 1993 version of the Code.
4Some filings by the Committee indicate that the Rule alleged to have been violated is Rule 4.3(C)(1) of the Code of Judicial Conduct (effective September 1, 2015). It is evident that the Rule at issue is Rule 4.2(C)(1) of the Code of Judicial Conduct, quoted in this opinion. Correspondence attached to the Committee?s report indicates that both the Committee and Judge Nadeau recognized that the Rule at issue is Rule 4.2(C)(1). Thus, no prejudice is evident from the incorrect citation of the Rule at issue in the Jud-17-1 proceeding.
5Because the conduct at issue occurred after September 1, 2015, the current Code of Judicial Conduct applies to the conduct alleged in Jud-17-1.
6In this opinion, the Hearing Justice?s findings are cited, by reference to page numbers, as ?FoF.?
7M.R. Prof. Conduct 3.4(c) states, ?A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.?
8The Hearing Justice concluded that there was no violation of Canon 2(A) because of the Panel?s finding that Attorney Holmes violated the Maine Rules of Professional Conduct, but he noted that it was ?difficult . . . to understand? the basis for Attorney Holmes?s violation, because Judge Nadeau had ordered her to destroy a public document in an ongoing case in which he had recused. (FoF. 9.) We agree that it is difficult to understand how Holmes?s actions could be deemed a violation of the Rules of Professional Conduct, and we reach a different conclusion than the Hearing Justice about the effect of the finding of a violation.
The order to destroy the lawfully obtained public document also may have violated the Freedom of Access Act, which provides,
Whoever intentionally removes any . . . document . . . belonging to or kept in any state office . . . or intentionally secretes, alters, mutilates, defaces or destroys any such . . . document . . . or, having any such . . . document . . . in his possession, or under his control, intentionally fails or refuses to return the same to that state office, or to deliver the same to the person in lawful charge of the office where the same was kept or deposited, shall be guilty of a Class D crime.
1 M.R.S. § 452 (2016). We do not address that issue further.
9The court session schedule in place when Judge Nadeau earned the salary of $48,498.77 was two days per week, eight hours per day, for a total of sixty-four hours per month.
10Testimony indicated that the first two Mondays would be for non-contested matters, the entire third week would be for contested matters, and the last Friday would be for research and writing.
11Within twenty-four hours after the initial email that was sent moments after the Commission?s decision not to adopt Judge Nadeau?s proposal, Judge Nadeau sent two more emails that made additional adjustments to the Probate Court schedule. (FoF. 11-12.) One was sent at 12:07 a.m. and the other at 8:46 a.m. the morning after the decision. (FoF. 11-12.)
12Judge Nadeau also argues that his personal solicitation of campaign contributions is speech protected by the First Amendment of the United States Constitution, citing Williams-Yulee v. Florida Bar, --- U.S. ---, 135 S. Ct. 1656 (2015). Williams-Yulee addressed a provision of the Florida Code of Judicial Conduct directing that a candidate for judicial office ??shall not personally solicit campaign funds . . . .?? Id. at 1663 (quoting Fla. Code of Jud. Conduct Canon 7C(1)). The term is similar to the limitation stated in Rule 4.2(C)(1) of Maine?s Code of Judicial Conduct. The U.S. Supreme Court affirmed the imposition of discipline on Williams-Yulee for her mailing and posting online a letter soliciting voluntary contributions to her campaign, 135 S. Ct. at 1671-1673, holding that ?because [the personal solicitation restriction] is narrowly tailored to serve a compelling government interest, the First Amendment poses no obstacle to its enforcement in this case.? Id. at 1672.
13Although Rule 4.2(C)(1) was adopted effective September 1, 2015, the 1993 Code of Judicial Conduct included, at Canon 5(C)(3), a similarly worded prohibition that a Probate Judge candidate ?shall not personally solicit or accept campaign contributions.? M. Code Jud. Conduct Canon 5(C)(3) (Tower 2014). This prohibition would have governed Judge Nadeau?s candidacy for the Probate Judge position in elections from 1996 through 2012.
14Prior to disbarment, Cox was sanctioned for judicial misconduct on two separate occasions. See In re Cox, 553 A.2d 1255 (Me. 1989); In re Cox, 532 A.2d 1017 (Me. 1987).
15We imposed sanctions for these violations in In re Nadeau, 2007 ME 35, 916 A.2d 200.
16The intemperate nature of Nadeau?s conduct is further evidenced by his post-hearing filing in Jud-16-1 supplementing his responses to questions posed to him during oral argument, which demonstrates that he did not appreciate the seriousness of his actions or how he was being perceived?even through oral argument.
Board of Overseers of the Bar v. In Re Lynn M. Lizotte Townsend
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Docket No.: BAR-17-8
Issued by: Maine Supreme Judicial Court
Date: June 19, 2017
Respondent: Lynn M. Lizotte Townsend
Bar Number: 009345
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Lynn M. Lizotte Townsend has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of the petition and related attachments, Bar Counsel has elected to stipulate to Ms. Townsend's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Ms. Townsend's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Lynn M. Lizotte Townsend, Bar# 009345, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: June 19, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott G. Adams, Esq.
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Docket No.: GCF# 16-025
Issued by: Grievance Commission
Date: June 26, 2017
Respondent: Scott G. Adams, Esq.
Bar Number: 008019
Order: Reprimand
Disposition/Conduct: Respect for Rights of Third Persons; Inadvertent Disclosures, Conduct involving dishonesty, fraud, deceit or misrepresentation, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On May 11 and 15, 2017, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Scott G. Adams, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 10, 2016. Both the Board?s 18 exhibits and the Respondent?s 18 exhibits were admitted without objection.
At the hearing, Attorney Adams appeared and was represented by Kent G. Murdick, Esq., and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
Respondent Scott G. Adams, Esq. of East Boothbay, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Adams was admitted to the Maine Bar in 1994 and is currently a registered, active practitioner in good standing.
On January 20, 2016, the Board filed a sua sponte grievance complaint against Attorney Adams. Attorney Adams has law offices in both East Boothbay, Maine and Newcastle, Maine. The Board?s grievance complaint alleged that Attorney Adams had committed an unauthorized taking of a confidential listing of client names and information from the possession of the court-appointed Receivers of Attorney Richard Salewski?s law practice. Attorney Adams duly replied to the Board?s complaint. A three-member panel of the Grievance Commission performed a confidential review of the matter pursuant to Maine Bar Rules 9(d) and 13(d)(4) and found probable cause for a hearing before another panel. Subsequently, Assistant Bar Counsel Kelley filed a Disciplinary Petition pursuant to Maine Bar Rule 13(e), charging Attorney Adams with taking the Salewski client list in violation of the following provisions of the M.R. of Prof. Conduct: 3.4 (c) (Fairness to Opposing Party and Counsel); 4.4 (b) (Respect for Rights of Third Person; Inadvertent Disclosures); and 8.4 (a) (b) (c) (d) (Misconduct). Attorney Adams duly responded to the Disciplinary Petition.
As stated above, a hearing in this matter was held before Panel D of the Grievance Commission on May 11 and 15, 2017.
On December 2, 2014, Justice Andrew Mead issued a written order for the appointment of Attorneys Hylie West and Jennifer Villeneuve as Receivers for Richard Salewski?s law practice. Five days later, on December 7, 2014, Attorney Salewski died after a long illness. In his Order, Justice Mead was explicit as to the confidentiality of Attorney Salewski?s client files. His Order gave the Receivers sole authority to inventory Attorney Salewski?s open and closed files and prohibited the disclosure of:
?any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of the court.
At the hearing, Attorney Adams testified that, shortly after Attorney Salewski?s death, he called Receiver West and inquired whether he would be developing a list of Attorney Salewski?s clients. Attorney Adams told Receiver West he wanted to match the names of Attorney Salewski?s clients with his own clients. Receiver West told him that such a list could not be mailed to him because it would be confidential.
Attorney Adams persisted in his effort to obtain a listing of Attorney Salewski?s clients. In November 2015, Attorney Adams requested that Attorney Lynn Madison contact Receiver West on his behalf and ask if a list of Attorney Salewski?s clients was available. Receiver West informed Attorney Madison that such a list was confidential but if Attorney Adams submitted a list of his clients to the Receivers they would keep an eye out for those specific files.
At the time of the relevant events, Paul Chaiken, Esq. was serving as Special Assistant Bar Counsel, responsible for monitoring court-ordered receiverships for the Board. On January 11, 2016, he sent out an email to Attorney Adams and other members of the Maine Bar. This email sought volunteer assistance for Wednesday, January 13, when the Receivers would be ?clearing out the files of Richard Salewski.? The email informed the potential volunteers that the client files had been moved to 441 Main Street in Damariscotta, noting that the building was ?the old pawn shop building opposite Romeo?s Restaurant.? Attorney Adams acknowledged that he received this email but did not volunteer to attend the January 13 work session.
Attorney Adams testified that, one day later, on Thursday, January 14, 2016, a client of his, who was considering purchasing the building at 441 Main Street, happened to ask him to accompany her while the realtor showed her the building. The building was locked but the real estate agency had obtained a key from Receiver West. Receiver West testified that the only individuals with keys were himself and the listing broker and that the broker had been instructed that the Salewski files were confidential.
When realtor Miles Geisler unlocked the building Attorney Adams saw the boxes of Salewski client files and also a six (6) page typed document entitled ?Rick Salewski Files Requests.? This was a listing of Attorney Salewski?s clients which had been prepared by Receivers West and Villeneuve.
Mr. Geisler testified that when Attorney Adams saw this document he remarked that he had been trying to obtain a listing of Attorney Salewski?s clients for a long time. Mr. Geisler did not recall Attorney Adams telling him he was going to take the list of clients, only that he would like to take it. Mr. Geisler did comment that there is a long-standing understanding among realtors that personal items will not be removed when a building is being shown to a potential buyer. After being in the building less than 20 minutes, Attorney Adams took the list without properly informing Mr. Gisler and returned to his East Boothbay office. Attorney Adams did not contact Receiver West and inform him that he (Attorney Adams) had taken the client list.
On Tuesday, January 19, 2016, after the Martin Luther King holiday, Receiver West notified Special Counsel Chaiken that Attorney Salewski?s client list was missing from 441 Main Street, Damariscotta. When Receiver West had discovered the list was missing he called Mr. Geisler, the realtor. After discussing the matter with Mr. Geisler, Receiver West now believed that Attorney Adams had taken the list. Special Counsel Chaiken and Deputy Bar Counsel Aria Eee were very concerned and immediately called Attorney Adams. The evidence at hearing is conflicted as to the beginning of this conversation, but ultimately Attorney Adams confirmed that he had taken the client list from 441 Main Street. He agreed to return it immediately and the next day mailed it to Receiver West. Attorney Adams also stated that the only other person who had seen this client list since he had taken it on January 14, 2016, was his Office Manager.
On January 20, 2016, Assistant Bar Counsel Kelley docketed a sua sponte complaint against Attorney Adams. On February 11, 2016, Assistant Bar Counsel Kelley wrote Attorney Adams and requested that Attorney Adams ?destroy any and all electronic or paper copies of the list, and notify me of your compliance with my request within five days of receipt of this letter.? He reiterated his request in a letter dated February 24, 2016. Attorney Adams, in anticipation of the forthcoming Board hearing, had indeed made a copy of the client list. He declined to destroy it. Attorney Adams placed his copy of the list on a private thumb drive and pledged not to show it to any other person. He testified at hearing that, once he had given the document to his attorney for purposes of defending against the bar complaint, he did not retain a copy.
The Salewski client list in question is six pages long and contains 93 entries. It is entitled ?Rick Salewski Files Requests.? On the top right-hand side of the first page are two categories which read, ?Clients have all or some? and ?Clients Notified-Still Looking.? Some of the client entries are annotated with substantive information about the client matter (e.g.: ?Estate Planning?; ?Need to see if there is a title policy. Error in deed.?; or ?Wills and Estate Plan. Docs.?).
Beginning with his conversation with Bar Counsel on January 19, 2016, in subsequent correspondence and submissions, and throughout the hearing, Attorney Adams acknowledged that he had been told that the Salewski client list was considered confidential and that he could not have a copy. He has admitted that he had no proprietary interest in the list. He has admitted that he took the list without Receiver West?s permission. Despite these admissions, Attorney Adams has suggested a variety of justifications for taking the document. The Panel finds these rationales to be disingenuous.
Even if Justice Mead had not ordered that the Salewski client files and their inventory be kept confidential, there is no credible argument that this information was public and available for the taking. The files and client lists were properly being treated by the receivers as protected client confidences. Client confidentiality can extend even to the identity of an attorney?s clients, see Comment 3 to M.R. Prof. Conduct 1.6 (?The confidentiality rule?applies not only to matters communicated in confidence by the client but also to all information relating to the representation?.?); see also ABA Formal Opinion 09-455 (the persons involved in a matter are protected by the client confidentiality rule).
Even the fact that a person has hired a lawyer can open a door on that person?s life. Is the person selling a home? Is the person seeking a divorce? Privacy demands that this door be kept closed. Protection of a client?s confidences is vital to the relationship between lawyers, their clients, and the public. It was Attorney Salewski?s clients who had the power to decide whether their confidences could be disclosed, not Attorney Adams.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. As described above, Attorney Adams?s intentional taking of the Salewski client list violates the following provisions of the Maine Rules of Professional Conduct:
Rule 4.4 Respect for Rights of Third Persons; Inadvertent Disclosures
(b) A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege or of protection as trial preparation material:
The recipient may not use or disclose the information in the writing until the claim is resolved, formally or informally. The sending or receiving lawyer may promptly present the writing to a tribunal under seal for a determination of the claim.
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice;
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer?s mental state, the actual or potential injury caused by the lawyer's misconduct, and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
Attorney Adams intentionally took a document to which he was not entitled and the Panel finds that he did so knowingly. Attorney Adams knew that the Receivers deemed the list of Attorney Salewski?s clients to be confidential. Attorney Adams?s claim that the client list was a public document because it was in plain sight is not persuasive. He found it in a locked building being used by the Receivers of the Salewski law practice. He had no right to unilaterally determine that the list was his to take. By taking the six-page listing of Salewski clients and sharing it with his office manager, Attorney Adams violated the privacy of those clients and violated the ethical rules cited above. There were no mitigating circumstances.
Therefore, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Scott G. Adams, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C).
Date: June 26, 2017
James A. McKenna III, Esq., Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Richard W. Salewski, Esq.
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Docket No.: BAR-14-17
Issued by: Maine Supreme Judicial Court
Date: June 30, 2017
Respondent: Richard W. Salewski, Esq.
Bar Number: 007185
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is a Petition for Discharge filed on June 29, 2017. For good cause shown and without objection, the Petition for Discharge is GRANTED as follows:
It is ORDERED that Hylie A. West, Esq., and Jennifer Villeneuve, Esq., are discharged as Co-Receivers of the law practice of Richard W. Salewski.
The Court acknowledges the extensive efforts and valuable service Attorneys West and Villeneuve have provided as Receivers and extends its appreciation for their numerous hours of work in this process. The Maine Bar is privileged to have such dedicated practitioners as Attorneys West and Villeneuve who are commended for their pro bono service to the Bar.
Dated: June 30, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert M.A. Nadeau
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Docket No.: Jud-16-1 & Jud-17-1
Issued by: Maine Supreme Judicial Court
Date: July 6, 2017
Respondent: Robert M.A. Nadeau
Bar Number: 007460
Order: Order
Disposition/Conduct: Order of Suspension Stayed through September 15, 2017
The Court has received Nadeau's motion to stay and for reconsideration. Following conference with the full Court, it is hereby ordered as follows:
Date: July 6, 2017
Leigh I. Saufley
Chief Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: July 17, 2017
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Conference Order
Disposition/Conduct: In Re: Petition for Reinstatement to the Maine Bar
In an opinion issued on June 8, 2017, the Supreme Judicial Court, sitting as the Law Court, vacated the judgment denying the petition for reinstatement to the Maine bar filed by Edwin R. Jonas III, based on its determination that this court erred in determining that the Rules of Evidence applied to bar reinstatement proceedings. Petition of Edwin R. Jonas III for Reinstatement to the Bar of the State of Maine, 2017 ME 115, ¶¶ 21-26, 39-40, --- A.3d ---. In its Order remanding the case for further proceedings, the Court stated,
On remand, the court must consider only (1) the evidence that was explicitly offered and excluded based on the application of the Rules of Evidence and that was not otherwise admitted, and (2) to the extent allowed by the single justice, any evidence of reinstatement or disciplinary actions, further litigation, or other evidence deemed relevant by the single justice that has occurred after the close of evidence in the original trial.
Id. ¶ 39. Based on that order of remand, a hearing shall be held and Mr. Jonas will be permitted to present any evidence "explicitly offered and excluded based on the application of the Rules of Evidence and ... not otherwise admitted" at the original hearing. Id. In addition, if offered, the court will determine whether to consider any evidence of matters that have "occurred after the close of evidence in the original trial." Id. After the hearing on remand occurs, the court will make findings based on "both the existing evidentiary record and any new evidence presented by either party on remand." Id.
To create a process for the hearing on remand, the court met with James Bowie, Esq., counsel for Mr. Jonas, and Aria Eee, Esq., counsel for the Board of Overseers, on July 12, 2017. At the conclusion of that conference, the matter was scheduled for hearing to be held on Friday, September 29, 2017, from 9 a.m. until 12 p.m.
Between now and the date of that hearing, counsel for the parties shall exchange all information either party intends to offer at that hearing. It is anticipated that Mr. Jonas may wish to present evidence through affidavits from one or two witnesses. Counsel for the Board has agreed to review any affidavits provided and to indicate whether she will agree that the affiants need not appear for the hearing. Counsel for the Board will review the results of some litigation that "occurred after the close of evidence in the original trial," id., and will alert Attorney Bowie if she intends to submit evidence of the same at the hearing.
The court is imposing no deadlines, as it understands and appreciates that counsel for both parties have been and will continue to work cooperatively and professionally.
Dated: July l7, 2015
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Basil L. Kellis, Esq.
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Docket No.: BAR-15-7
Issued by: Maine Supreme Judicial Court
Date: July 25, 2017
Respondent: Basil L. Kellis, Esq.
Bar Number: 001662
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is a Petition to Accept and Order for Discharge of Receiver filed on July 12, 2017. For good cause shown and without objection, the Petition to Accept and Order for Discharge of Receiver is GRANTED as follows:
It is ORDERED that Charles L. Nickerson, Esq., is now discharged as Receiver of the law practice of Basil L. Kellis conducted under the firm name of Willard & Kellis, P.A.
It is FURTHER ORDERED that Charles L. Nickerson, Esq. shall retain in his possession and control all of the closed files of Attorney Kellis and the Law Firm of Willard & Kellis, P.A. in a secure storage facility and will destroy at the conclusion of the eight-year retention period any such files. The expense of the storage facility and destruction of the files when the time expires will be at the expense of the Estate of Basil L. Kellis or the beneficiaries of his Estate. The storage facility shall only be accessible by Charles L. Nickerson, Esq. and Carol A. Duckworth.
It is ALSO ORDERED that Charles L. Nickerson, Esq. shall retain all Wills of Attorney Kellis and the Law Firm of Willard & Kellis, P.A. so that all Wills are accessible to all former clients and/or attorneys seeking Wills of Attorney Kellis' s former clients.
The Maine Bar of Overseers acknowledges that Charles L. Nickerson has rendered services in this matter pro bono and does not expect to be reimbursed for any of his expenses.
The Court extends its great thanks to Attorney Nickerson for his work in this matter.
Dated: July 25, 2017
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Alan D. Graves, Esq.
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Docket No.: BAR-15-17
Issued by: Maine Supreme Judicial Court
Date: July 27, 2017
Respondent: Alan D. Graves, Esq.
Bar Number: 000091
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32(c)
THIS MATTER having been reviewed by the undersigned Justice of the Court, upon the motion of the Receiver herein for an order discharging Him as Receiver of the law practice of Alan D. Graves, Esq., the Court makes the following findings of facts and conclusions of law:
Based upon the foregoing FINDINGS OF FACT, the Court makes the following conclusions of law:
THEREFORE, it is hereby ORDERED as follows:
Dated: July 27, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Joan Maureen Sutton Dollarhite
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Docket No.: BAR-17-11
Issued by: Maine Supreme Judicial Court
Date: August 7, 2017
Respondent: Joan Maureen Sutton Dollarhite
Bar Number: 007829
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(j) & 29
Joan Maureen Sutton Dollarhite has petitioned for reinstatement from inactive status to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Ms. Dollarhite's reinstatement pursuant to M. Bar R. 29(f)(l), subject to the Court's approval. The Court has reviewed Ms. Dollarhite's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Joan Maureen Sutton Dollarhite, Bar #007829, is hereby reinstated to active status with the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: August 7, 2017
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Douglas B. Chapman, Esq.
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Docket No.: BAR-16-18
Issued by: Maine Supreme Judicial Court
Date: August 18, 2017
Respondent: Douglas B. Chapman, Esq.
Bar Number: 000736
Order: Receiver Appointment Receiver Discharge Order
Disposition/Conduct: Receiver Appointment/Receiver Discharge Order
Appointment of Limited Co-Receivers
M. Bar R. 32
On August 4, 2017, Receiver Attorney Thomas B. Wheatley submitted his Second and Final Semi-Annual Report to the Court. In this Report, Attorney Wheatley expressed his desire and need for the Board to assume Receivership duties for the law practice of Douglas B. Chapman. For good cause shown and without objection, Attorney Wheatley?s petition for discharge is GRANTED. The Court acknowledges the extensive efforts and valuable service Attorney Wheatley provided as Receiver and extends its appreciation for his numerous hours of work in this massive undertaking.
Also pending before the Court is an Expedited Petition for Appointment of Limited Co-Receivers dated August 7, 2017. Upon Petition submitted by the Board of Overseers of the Bar, pursuant to M. Bar R. 32, the Court Orders:
As of this date, The Board of Overseers of the Bar and Margaret T. Jeffery are appointed as Limited Co-Receivers of the law practice of Douglas B. Chapman of the firm Fenton Chapman & Kane, P.A. The newly-appointed Limited Receivers shall maintain and dispose of Attorney Chapman?s unclaimed client files in a manner consistent with the Maine Rules of Professional Conduct. Attorney Jeffery will concentrate primarily on the oldest most ?historically significant? files. The Board shall attempt to return client files when appropriate. The Board shall additionally retain, and return to clients when possible, the original wills currently contained in safe deposit boxes. The Board shall additionally take possession of the firm?s electronic files.
It is further Ordered that The Board of Overseers of the Bar and Margaret T. Jeffery shall be protected from liability for professional services rendered in accordance with this Order pursuant to M. Bar Rule 32(e).
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: August 18, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Frank B. Walker
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Docket No.: BAR-17-13
Issued by: Maine Supreme Judicial Court
Date: August 28, 2017
Respondent: Frank B. Walker
Bar Number: 000058
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
After Petition filed by the Board of Overseers, pursuant to M. Bar R. 32, the Court Orders the following:
As of this date, the Board of Overseers of the Bar (the Board) is appointed the Limited Receiver of (deceased attorney) Frank B. Walker?s law practice. Pursuant to this Order, the Board shall:
As a service to the bar, the Board has agreed to serve as the Limited Receiver on a pro bono basis. The Board shall act as Receiver until discharged by the Court either by Motion. The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of the court. The Board shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
Dated: August 28, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Eugene McLaughlin, Jr., Esq.
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Docket No.: GCF# 16-316
Issued by: Grievance Commission
Date: September 5, 2017
Respondent: Eugene McLaughlin, Jr., Esq.
Bar Number: 003748
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On September 5, 2017, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, Eugene McLaughlin, Jr., Esq. This disciplinary proceeding had been commenced by the filing of a formal Disciplinary Petition by the Board of Overseers of the Bar (the Board) on March 24, 2017.
At the hearing, Attorney McLaughlin appeared on his own behalf. The Board was represented by Assistant Bar Counsel Alan P. Kelley. The complainant, District Attorney R. Christopher Almy, was not present at the hearing but was provided with a copy of the proposed order in advance of the hearing. Prior to that date, the parties negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel's review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected and the office of Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: September 5, 2017
Cynthia M. Mehnert, Esq., Panel Chair
Jane S.E. Clayton, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Richard L. Currier, Esq.
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Docket No.: GCF# 16-368 & GCF# 16-371
Issued by: Grievance Commission
Date: September 5, 2017
Respondent: Richard L. Currier, Esq.
Bar Number: 002245
Order: Reprimand
Disposition/Conduct: Threatening Prosecution, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)(10)(d) & 21(b)(4)
On September 5, 2017, with due notice and pursuant to Maine Bar Rule 13(e), Panel A of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by Respondent Richard L. Currier, Esq. The Board of Overseers of the Bar (the Board) commenced the disciplinary proceedings by filing a Stipulated Disciplinary Petition in GCF# 16-368 and 16-371 on June 28, 2017.
At the hearing, Attorney Currier appeared with his attorney, James M. Bowie, Esq., and the Board was represented by Assistant Bar Counsel Alan P. Kelley. Prior to that hearing date, the parties submitted a stipulated proposed sanction Report for the Grievance Commission Panel's review and consideration. These two related grievance matters were each initially brought to Bar Counsel's attention by Luke M. Rossignol, Esq. and Dwayne C. Gagnon.
Each complainant was provided with a copy of the proposed Stipulated Report Prior to the hearing, and provided with the opportunity to attend and speak to the Panel at the stipulated hearing.
Having reviewed the stipulated, proposed findings as presented by counsel, the Panel makes the following findings and disposition:
The panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather protection of the public from attorneys who have demonstrated that they are unable to properly discharge their professional duties. While Attorney Currier does have a prior disciplinary record including the imposition of two prior reprimands in 1995 and 2012 respectively, in this case he has recognized that he made errors in judgment. As a result, he agrees that the imposition of a disciplinary sanction is in order as a result of his misconduct in this matter. In view of Attorney Currier?s acceptance of responsibility for his actions, and his expression of remorse for the above-described misconduct, the Panel is satisfied that it is unlikely he will engage in similar conduct in the future. Since the evidence supports a finding and Attorney Currier agrees that he did in fact violate the above-referenced portions of the Maine Rules of Professional Conduct, the Panel finds that imposition of a disciplinary sanction is required and that a public reprimand adequately serves the purposes of sanctions as set forth in Maine Bar Rule 21(c) (Sanctions).
Accordingly, for the admitted misconduct as outlined above, the Panel hereby accepts the agreement of the parties, including Attorney Currier's separately executed waiver of the right to file a Petition for Review, and directs that Attorney Currier receive this public reprimand for the violations detailed herein regarding each of the cases represented by Docket Numbers GCF#16-368 and #16-371 pursuant to M. Bar R. 21(b)(5).
Dated: September 5, 2017
Cynthia M. Mehnert, Esq., Panel Chair
Jane S.E. Clayton, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. John M. Whalen, Esq.
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Docket No.: BAR-17-15
Issued by: Maine Supreme Judicial Court
Date: September 1, 2017
Respondent: John M. Whalen, Esq.
Bar Number: 000827
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, Kenleigh A. Nicoletta, Esq., is appointed Receiver for final closing of the law practice of John M. Whalen. Pursuant to this Order, Attorney Nicoletta shall:
As a service to the bar, Attorney Nicoletta may serve as Receiver for the Whalen law office on a pro bono basis. However, Attorney Nicoletta shall submit a semi-annual written report to the Court, copied to the Board?s Special Counsel, containing a record of time worked and disbursements made in this matter. The law office of John M. Whalen shall be the first choice for source of payment for the disbursements and any legal fees (at the state court appointment rate) sought by the Receiver. If insufficient assets are available from the law office, the Board of Overseers may be an alternate payment source for expenses related to the law office closure.
Attorney Nicoletta shall act as Receiver until discharged by the Court in accordance with M. Bar R 32(c).
Attorney Nicoletta so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Attorney Nicoletta may be engaged by any former client of John Whalen provided that the client is informed in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver?s employment by the client. Attorney Nicoletta is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client?s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of Attorney Nicoletta?s appointment by this Order. Attorney Nicoletta shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: September 1, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: GCF# 15-291
Issued by: Grievance Commission
Date: September 8, 2017
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Reprimand Probation
Disposition/Conduct:
Probation vacated by Order of 5/31/18 Order on Petition for Review
Candor Toward the Tribunal, Dealing with Unrepresented Person, Misconduct
M. Bar R. 13(e)
On June 14 and July 17, 2017, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning alleged misconduct by the Respondent, Anthony P. Shusta II, Esq. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 21, 2016. After a telephonic counsel conference on June 12, 2017, between Panel Chair Andre J. Hungerford, William D. Robitzek, Esq., who represented Attorney Shusta, and Assistant Bar Counsel Alan P. Kelly, who represented the Board, the parties agreed that witness Wayne Doane, Esq. would appear telephonically and that all exhibits would be admitted.
On both hearing dates, Attorney Shusta appeared and was represented by Attorney Robitzek, and the Board was represented by Assistant Bar Counsel Kelley.
Respondent Anthony P. Shusta II, Esq. of Madison, Maine, has been at all relevant times an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
On September 17, 2015, Assistant Attorney General (AAG) Loralie Spooner filed a complaint with the Board alleging that Attorney Shusta engaged in professional misconduct during a family matter proceeding. A three-member panel of the Grievance Commission performed a confidential review of the matter pursuant to Maine Bar Rules 9(d) and 13(d)(4) and found probable cause for a hearing before another panel. In turn, on April 21, 2016, Bar Counsel J. Scott Davis filed a Formal Disciplinary Petition, alleging among other things, that Attorney Shusta failed to be candid with a Family Law Magistrate and dealt improperly with an unrepresented person. Attorney Shusta contests all allegations against him.
In 2015, Attorney Shusta represented James L. in a paternity suit. The Department of Health and Human Services (DHHS) filed a complaint in Skowhegan District Court against Mr. L., seeking to establish that he was the father of a child borne by Amy C. in 2012. AAG Spooner represented DHHS in the matter. Separately, Attorney Shusta filed a parental rights and responsibility action regarding the minor. In turn, AAG Spooner filed a motion to consolidate the two cases, which the court granted without objection by Attorney Shusta. The court then issued a case management order, scheduling mediation followed by a status conference on March 9, 2015.
Prior to mediation, Attorney Shusta contacted Ms. C., who was unrepresented, asking her if she would consent to the termination of Mr. L.?s parental rights, suggesting to her that her child could be adopted by her boyfriend. Attorney Shusta claimed that the ?the word on the street was? that Ms. C. wanted to terminate the parental rights of Mr. L. In her interactions with Attorney Shusta, Ms. C., who has an 11th grade education, did understand that he was not representing her legal interests. Attorney Shusta states that at a case management conference he informed Ms. C. about the effect of termination, including giving up all future child support from Mr. L. At this time Ms. C. was not interested in termination.
At some point, Attorney Shusta and AAG Spooner had discussed the termination of parental rights issue: AAG Spooner informed Attorney Shusta that she would object to the termination unless there was a finding that it was in the child?s best interests, and that DHHS would not bring such a case under the present circumstances.
On March 9, 2015, Attorney Shusta met with Ms. C. in the Skowhegan courthouse prior to mediation, presenting her with a petition to terminate his client?s parental rights, which he had not provided to AAG Spooner. Ms. C. signed the paperwork. Denise Bemis, a DHHS enforcement agent, was running late and did not take part in mediation discussions overseen by Attorney Rob Washburn, which lasted 20 minutes. Eleven minutes later, Attorney Shusta, Ms. Bemis, and Ms. C. appeared in front of Family Law Magistrate Stephen J. Chandler. AAG Spooner was not in attendance, nor was her presence required by DHHS policy.
Attorney Shusta informed Magistrate Chandler that an agreed-upon petition for termination of parental rights and responsibilities would be filed. Magistrate Chandler asked Ms. Bemis about her understanding of the agreement. The transcript shows the following colloquy (emphasis added):
Ms. Bemis: I understand the agreement. I still ? I feel that AAG Spooner should be given the opportunity to review that agreement.
Mr. Shusta: She has had the opportunity to review the agreement. She has had the opportunity to review the petition. She requested a change in the petition and we made that change today.
The Court: And she knows that this ? there?s going to be no ongoing child support?
Mr. Shusta: Yes. And I suspect that there?s going to be a name change and an adoption in the near future
As a result, Magistrate Chandler signed Attorney Shusta?s draft order, which ended the parental rights and responsibilities matter and severed the DHHS paternity action. Attorney Shusta claims when he used the term ?she? in the above dialogue, he was referring to Ms. C., who was present in the courtroom, and not to AAG Spooner, who was not present.
At the June 14, 2017 Grievance Commission hearing, AAG Spooner testified that Attorney Shusta never gave her an agreement or petition to review. Magistrate Chandler testified at this hearing that he had no independent recollection of what occurred during the status conference, adding that he was unsure of whom ?she? referred to because the hearing was a long time ago and since then he had heard many other cases. He stated that under the circumstances he probably would have still signed the same order even if he knew that AAG Spooner had not received the documents from Attorney Shusta. However, Magistrate Chandler opined that it would be logical that the first ?she? addressed AAG Spooner. Ms. Bemis credibly testified that she thought Attorney Shusta was referring to AAG Spooner. Initially, Ms. C. thought ?she? referred to AAG Spooner, but upon further questioning was unsure.
At the grievance hearing, AAG Spooner testified that Maine law only allowed DHHS or a custodial parent to a file termination of parental rights action. Because Mr. L. was not the custodial parent, he could not initiate termination of parental rights proceedings. There is no dispute that Attorney Shusta prepared the paperwork for Ms. C. even though he was solely representing Mr. L.
The context strongly suggests that the ?she? referred to by Attorney Shusta in the colloquy was AAG Spooner, whom he knew had a strong interest in this case. Arguably, Attorney Shusta was vigorously representing his client, who did not want to pay child support because he was not involved in his son?s life. However, Ms. Bemis informed the court that she felt AAG Spooner should be given the opportunity to review the agreement, which set the reference point for the colloquy. The evidence strongly weighs against Attorney Shusta who suggests that he was referring to Ms. C. because she annotated the agreement in front of the court. Furthermore, the electronic recording of the colloquy indicates that Attorney Shusta emphasized that ?she? has reviewed the agreement, which supports the conclusion that ?she? referred to AGG Spooner, who had not reviewed the agreement.
Even if Attorney Shusta had quickly explained to Ms. C. that she would never receive child support from Mr. L. upon termination being approved by the court, he was the one who planted the idea in her head that it would be a good idea because the child could be adopted. Attorney Shusta was the one who called Ms. C., who earlier rejected termination, to see if she would reconsider. In fact, he called her two times to review the details in the proposed agreement. At the July 17, 2017 Grievance Commission hearing, Attorney Shusta?s attorney asked him the following questions:
Q. And do you believe that you explained things to [Ms. C.] in a way that she could understand?
A. Yes.
Q. And did you provide her with opportunities to ask you questions.
A. Yes.
Q. And did you make it clear to her that she could always back out of the termination process at any point if she wanted to?
A. Yes. And I pointed out that if she did, she wasn't losing on the child support.
Yet, Ms. C. had no idea that only DHHS or herself could initiate termination. She signed paperwork prepared by Attorney Shusta, who says that he orally, but never in writing, encouraged her to get her own counsel to review everything. It appears that Attorney Shusta may have been hoping that Ms. C., who has struggled financially, would not get an attorney to review the paperwork, to the benefit of his client, Mr. L. When all the facts are viewed together, Attorney Shusta provided legal advice to an unrepresented adverse party by encouraging her to sign a petition, which his client was not legally authorized to submit to a court, to the detriment of the unrepresented party.
Attorney Shusta knew that he could only represent one party, which was Mr. L. and not Ms. C.
The Panel finds that Attorney Shusta failed to uphold his responsibilities to the court by making a false statement to a Family Law Magistrate and not correcting it as well as giving legal advice to Ms. C., who was not only unrepresented but also unsophisticated with legal matters, by having her sign a Petition for Termination of Parental Rights that would have serious financial consequences for her and her child. He crossed the line by urging her to sign off on the paperwork even though she knew he was not her attorney.
More specifically, the panel finds that Attorney Shusta has violated the following provisions of the Maine Rules of Professional Conduct:
3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
4.3 Dealing with Unrepresented Person
The lawyer shall not give legal advice to an unrepresented person, but may provide legal information to and may negotiate with the unrepresented person.
8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another; [or]
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties.
Because the evidence supports a finding and Attorney Shusta did in fact violate the Maine Rules of Professional Conduct, and in light of Attorney Shusta?s prior disciplinary history with the Board, Panel E concludes that the appropriate disposition of this case is a Public Reprimand and Probation. Pursuant to M. Bar R. 13(e)(10)(C) & (D), Panel E hereby issues that Reprimand to Anthony P. Shusta II, Esq. and mandates supervised probation pursuant to M. Bar R. 21(b)(4) as set forth in the attached Confidential Probation Decision and Mandate.
Dated: September 8, 2017
Andre J. Hungerford, Esq., Chair
Gretchen L. Jones, Esq., Panel Member
Margaret J. Palmer, Ph.D., Public Member
Board of Overseers of the Bar v. Robert M.A. Nadeau
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Docket No.: Jud-16-1 & Jud-17-1
Issued by: Maine Supreme Judicial Court
Date: September 7, 2017
Respondent: Robert M.A. Nadeau
Bar Number: 007460
Order: Final Order on Motion for Reconsideration
Disposition/Conduct: Motion for Reconsideration Denied
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 191
Docket: Jud-16-1 and Jud-17-1
Motion: June 30, 2017
Decided: September 7, 2017
Panel: SAUFLEY C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
PER CURIAM
[¶1] Robert M.A. Nadeau has filed a motion for reconsideration of our June 20, 2017, decision in this judicial disciplinary matter, In re Nadeau, 2017 ME 121, --- A.3d ---. To allow consideration of his motion, we deferred the effective date of his two-year suspension from the practice of law from August 1, 2017, to September 15, 2017; invited a response to his motion from the Committee on Judicial Responsibility and Disability; and allowed Nadeau time to respond to any filing by the Committee.
[¶2] In his motion, supplemented by his response to the Committee?s filing, Nadeau makes two arguments.
[¶3] First, he contends that the two-year suspension from the practice of law and $5,000 forfeiture that we ordered as sanctions for his numerous violations of the Code of Judicial Conduct violated his rights to equal protection and due process of law because, he argues, the sanctions were more severe than the sanctions recommended by the Committee?a $10,000 fine and a two-year suspension from the practice of law, with the suspension from practice to take effect only if Nadeau again sought election as a probate judge.
[¶4] Second, Nadeau contends that the sanctions imposed on him may violate the Privileges and Immunities Clause because, Nadeau alleges, many clients desirous of his services will be deprived of his services if the two-year suspension from the practice of law remains in effect. Nadeau further asserts that ?[t]here has been no finding that [he] has engaged in any harm to any private client in his 36 years as an attorney, and no evidence that he would ever commit such harm in the future.?
A. Due Process and Equal Protection
[¶5] Nadeau argues, in essence, that the two-year suspension from the practice of law violates his rights to equal protection and due process of law because (1) the Committee?s recommendation of a conditional suspension failed to notify him that he faced an actual suspension; (2) by analogy to plea agreements in criminal cases, the Court is barred from imposing a more severe sanction than recommended by the Committee; and (3) the two-year suspension from practice and the $5,000 forfeiture are more severe sanctions than sanctions that have been imposed on other judges, similarly situated, after findings of violations of the Code of Judicial Conduct.
[¶6] Nadeau?s claim that he was not on notice about the possibility that his license to practice law would be suspended is undermined by our opinion in In re Cox, 658 A.2d 1056 (Me. 1995)?a case specifically addressed during the February oral argument. Cox, like Nadeau, was no longer a judge when we heard his judicial discipline action. Id. at 1057. Cox, like Nadeau, argued that the action was moot because no sanctions could be imposed for violations of the Code of Judicial Conduct on a person who was no longer a judge. Id. As we pointed out to Nadeau at oral argument, we rejected Cox?s mootness argument, and, noting that Cox had ?returned to the private practice of law,? id., we ordered that Cox be disbarred from the practice of law as the sanction for his violations of the Code of Judicial Conduct, id. at 1058. Our decision in Cox placed Nadeau on notice that his license to practice law could be suspended, and that exposure was made even more clear by the colloquy at oral argument.1
[¶7] Further, despite his assertion that he was not provided with adequate notice, Nadeau does not suggest anything that he would have or could have done differently, or anything additional that he might have offered in the proceeding before us, had he been concerned that his capacity to practice law could be suspended. In the arguments that he presented to the single justice (Clifford, J.) and to us, Nadeau asserted that he had not committed any violation of the Code of Judicial Conduct. He also asserted to us that, because he was defeated for reelection and his term as a probate judge had expired, this action was moot and no sanctions of any kind could be imposed.
[¶8] Nadeau?s analogy to criminal proceedings, where a State?s sentencing recommendation is sometimes a cap, is inapt because of the different nature of this proceeding.2 It must also be noted that the Committee?s sanction recommendation was made as part of its prosecution of its 2016 filing, Jud-16-1, before presentation of its additional report of improper personal solicitation of campaign contributions asserted in Jud-17-1 and addressed in our opinion. See In re Nadeau, 2017 ME 121, ¶¶ 53-56, --- A.3d ---.
[¶9] Nadeau?s contention of disparate treatment is also unpersuasive. The separate filings here in Jud-16-1 and Jud-17-1 represent the fourth and fifth times that actions asserting professional misconduct by Nadeau, as an attorney or a judge, have come to this Court for decision. See In re Nadeau, 2016 ME 116, 144 A.3d 1161; In re Nadeau, 2007 ME 21, 914 A.2d 714;3 Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 (Mar. 2, 2006) (Single Justice Order). Our professional regulatory structures for attorneys and judges became fully operational in or near their present form by 1980. Records of referrals to this Court of claims of professional misconduct by attorneys or judges since 1980 show that no individual has been subject to as many referrals for professional discipline as Robert M.A. Nadeau.
B. Misconduct as an Attorney
[¶10] Nadeau next asserts that a sanction affecting his license to practice law is misplaced because the bases for the judicial discipline we have imposed did not expose his private clients to harm. This argument must be examined in light of Nadeau?s disciplinary history.
[¶11] The 2006 bar disciplinary action against him, alleging professional misconduct as an attorney, involved three separate Grievance Commission complaints: one arising from a sexual relationship with a client; one arising from directly contacting his former law partners, who were represented by counsel, during the contentious breakup of their law firm; and one arising from Nadeau?s unprofessional criticism of a judge for declining to bar public access to the file of the action involving the breakup of his law firm. That action was resolved by agreement between Nadeau and the Board of Overseers of the Bar.
[¶12] In the single justice decision in Nadeau?s bar disciplinary matter, Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 at 2 (Mar. 2, 2006), Nadeau agreed to the following facts: ?On June 20, 2003, Attorney Nadeau commenced a consensual sexual relationship with a divorce client. Attorney Nadeau?s conduct when he terminated the attorney-client relationship and withdrew from representation of that client fell short of the standards established in the Code of Professional Responsibility.?
[¶13] The agreed to facts also indicate that the ?divorce client? had complained to the Board, resulting in a Grievance Commission proceeding and a recommendation of discipline to the Court (GCF # 03-255). Id. However, before the Court proceeding, Nadeau and the former client ?reunited in their romantic relationship,? and the former client then denied that Nadeau ?acted unprofessionally.? Id. These circumstances resulted in an agreed to recommendation, accepted by the Court, of a dismissal with a warning to Nadeau to ?refrain from such misconduct in the future.? Id. at 3.
[¶14] The agreed to resolution of the 2006 bar discipline proceeding also involved Nadeau (1) withdrawing his appeal of a Grievance Commission reprimand for Nadeau?s directly contacting represented litigants (former members of his law firm) during litigation over the breakup of his law firm (GCF # 03-335); and (2) agreeing to a public reprimand for his ?discourteous and degrading? criticism of a Superior Court Justice who declined to seal the record of the litigation regarding the breakup of his law firm, thereby allowing public disclosure of his affair with his former client (GCF # 04-314). Id. at 3-5.
[¶15] The 2006 proceeding concluded with the following order, entered with Nadeau?s agreement:
In accordance with Bar Counsel?s recommendation, and with agreement of Attorney Nadeau, on the basis of the conduct set forth in GCF # 03-335 and GCF # 04-314 a public reprimand is imposed. All of these violations of the Maine Bar Rules are serious. Attorney Nadeau is ORDERED to conduct himself in the future so as to avoid further occasions of professional misconduct. By agreeing to this disposition, Attorney Nadeau acknowledges that he feels remorse for his actions. The Court cautions him to utilize that remorse to inform his judgment, and to choose his best judgment over his inclination to impulsivity in the future.
Id. at 5.
[¶16] Following the dismissal with a warning of the grievance complaint involving the former client, the ?romantic relationship? ended. This was followed by acrimonious litigation between Nadeau and his former client, which we reviewed in Nadeau v. Frydrych, 2014 ME 154, 108 A.3d 1254. That litigation also led to a judicial disciplinary action against Nadeau for sending a threatening letter to his former client?s attorney, which, we determined, ?exploited his judicial office for personal gain because he gratuitously invoked his position of judicial and public prominence to advance his personal objective of settling the protection case on his terms.? In re Nadeau, 2016 ME 116, ¶ 17, 144 A.3d 1161.
[¶17] Concluding that ?Judge Nadeau?s statements diminished the integrity of the judiciary, and invoked the power and prestige of his office without justification and for his own purposes,? we concluded that Nadeau had violated Canons 1 and 2(B) of the 1993 Maine Code of Judicial Conduct. Id. ¶ 19. For this violation of the 1993 Code, we imposed a public censure and reprimand and a thirty-day suspension from his office of probate judge. Id. ¶ 50.4
[¶18] The first three of the violations at issue in this proceeding involve vindictive and impulsive actions that Nadeau took in 2012 and 2013 regarding his former law partners?the same attorneys at issue in Nadeau?s 2006 professional misconduct findings?and attorneys associated with his former law partners. These actions, now the subject of a judicial misconduct action, demonstrate Nadeau?s disregard for his 2006 attorney misconduct agreement and court order ?to avoid further occasions of professional misconduct,? ?to utilize that remorse [for his actions regarding his former partners] to inform his judgment,? and ?to choose his best judgment over his inclination to impulsivity.? Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 at 5 (Mar. 2, 2006).
[¶19] The sanctions we impose here rest on our consideration of all of Nadeau?s history of professional misconduct, as both an attorney and a judge. As we stated in the opinion that is the subject of this motion,
This is now the fourth time that Judge Nadeau has appeared before us for ethical violations, and the third time for conduct that occurred while serving in a judicial capacity. [Citing the 2016, 2007, and 2006 opinions referenced above.] Here, his actions were often carried out in an intemperate and vindictive fashion against former colleagues of his law practice and their associates. Attorneys? reputations were harmed, and litigants before him were pressured to support his efforts to increase court resources and his compensation. Judge Nadeau has not fully acknowledged the intemperate nature of his decisions.
We have already acknowledged that ?prior corrective efforts have not been effective in dissuading [Judge Nadeau] from engaging in intemperate conduct prohibited by the Canons.? In re Nadeau, 2016 ME 116, ¶ 49, 144 A.3d 1161. This time, therefore, more severe sanctions are warranted.
In re Nadeau, 2017 ME 121, ¶¶ 62-63, --- A.3d ---.
[¶20] With this history, Nadeau was certainly on notice regarding the sanctions he could face; he has not been denied due process in this proceeding; and he has failed to demonstrate that he has been sanctioned more harshly than others similarly situated, having identified no Maine attorney with a history of professional misconduct violations as extensive as his own. Nadeau?s motion for reconsideration is therefore denied. To accommodate the notices that must be provided by Nadeau, see M. Bar R. 31, and by the Board of Overseers of the Bar, see M. Bar R. 19, the effective date of Nadeau?s two-year suspension is adjusted as indicated in the entry below.
The entry is:
After review of the record on Robert M.A. Nadeau?s motion for reconsideration, including the documents filed by Robert M.A. Nadeau and the Committee on Judicial Responsibility and Disability, the Court ORDERS as follows:
The motion for reconsideration is DENIED. The two-year suspension from the practice of law ordered in our opinion in In re Nadeau, 2017 ME 121, --- A.3d ---, shall commence on October 1, 2017. The sanctions as otherwise ordered in In re Nadeau, 2017 ME 121, --- A.3d ---, shall remain in effect and unchanged.
Cabanne Howard, Esq., Committee on Judicial Responsibility and Disability, Portland, for the Committee on Judicial Responsibility and Disability
Robert M.A. Nadeau, pro se
1 In his motion for reconsideration, Nadeau alleged that he has been ?consumed? by his attention to this matter ?every minute of every day during the past two years.? If Nadeau was as intensely focused on this matter as he claims he was, we can certainly assume that, in his preparations to defend this matter, he would have become aware of our Cox opinion, which demonstrates that as a former judge he remained subject to sanctions for misconduct occurring during his judicial service.
2 M.R.U. Crim. P. 11A(d) directs that, when a plea agreement with a recommended sentence is presented, ?[t]he court shall not reject the recommendation without giving the defendant the opportunity to withdraw his plea.? This requirement does not apply, however, to a sentencing recommendation made before, during, or after a contested trial?another reason why Nadeau?s argument fails.
3 Sanctions in this matter were subsequently addressed by In re Nadeau, 2007 ME 35, 916 A.2d 200.
4 In the 2016 opinion, we determined that three other claims of judicial misconduct had not been proved to have violated the 1993 Code of Judicial Conduct. See In re Nadeau, 2016 ME 116, ¶¶ 25-43, 144 A.3d 1161.
Board of Overseers of the Bar v. Jeffrey P. White, Esq.
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Docket No.: GCF# 15-199, 15-211, 16-202 & 16-312
Issued by: Grievance Commission
Date: September 13, 2017
Respondent: Jeffrey P. White, Esq.
Bar Number: 003804
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On September 13, 2017, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, Jeffrey P. White, Esq. This disciplinary proceeding had been commenced by the filing of a formal Disciplinary Petition in GCF# 15-199, 15-211 and 16-202 by the Board of Overseers of the Bar (the Board) on November 3, 2016 and in GCF# 16-312 on April 26, 2017.
At the hearing, Attorney White appeared and was represented by his counsel, Daniel L. Cummings, Esq. The Board was represented by Assistant Bar Counsel Alan P. Kelley. Each complainant was provided with a copy of the proposed order in advance of the hearing, and provided with the opportunity to attend and speak to the Panel. Prior to that date, the parties negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel?s review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected and the office of Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: September 13, 2017
Vendean V. Vafiades, Esq., Panel Chair
Stephanie P. Anderson, Esq., Panel Member
Franklin D. Gooding, Public Member
Board of Overseers of the Bar v. James R. McDaniel II, Esq.
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Docket No.: GCF# 16-260
Issued by: Grievance Commission
Date: September 13, 2017
Respondent: James R. McDaniel II, Esq.
Bar Number: 004742
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Excessive Fee
M. Bar R. 13(e); 21(b)(5)
On September 13, 2017, with due notice and pursuant to Maine Bar Rule 13(e)(7)(D), a Panel of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, James R. McDaniel II, Esq. The proceeding was commenced by Bar Counsel?s March 17, 2017 filing of a Disciplinary Petition. Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter.
At the September 13, 2017 stipulated hearing, the Board was represented by Aria Eee, Deputy Bar Counsel and Attorney McDaniel, acting pro se, appeared telephonically. The Complainant, Roney Temor, was also present for the disciplinary hearing. Prior to that date, the parties had submitted a stipulated, proposed sanction Report for the Grievance Commission review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following disposition:
Respondent James R. McDaniel II, Esq. (McDaniel) of Dover, NH has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, he is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Admitted to the Maine Bar in 2010, McDaniel maintains a solo practice in New Hampshire concentrating on criminal and family law matters. McDaniel is also licensed in New Hampshire and Michigan.
In July 2016, Roney Temor, (Temor) filed a grievance complaint detailing his May 2015 retention of McDaniel for representation with post-divorce matters then pending in Maine. Following their initial meeting, McDaniel presented Temor with a ?flat fee? agreement citing incorrectly to the New Hampshire Professional Conduct Rules. Temor executed that Agreement and by June 2015, had paid McDaniel a $2600.00 fee.
According to Temor?s complaint, McDaniel neglected the family matter, failed to communicate and billed excessively for the legal work he performed. While in his initial response to the complaint McDaniel contended that he adequately performed the work, communicated with the client, and fully earned his fees, he now acknowledges that there were problems which arose during the representation. McDaniel attributes some of those problems to the demands of his solo practice as well as the difficult attorney-client relationship with Temor.
In July 2015, Mr. Temor discharged Attorney McDaniel. The District Court subsequently granted McDaniel?s Motion to withdraw from the representation. Not long following his withdrawal, McDaniel and Temor engaged in email exchanges related to the June 2015 family matters hearing, McDaniel?s final bill and Temor?s stated intention to complain to state regulatory agencies.
In addition to the grievance complaint against McDaniel, Temor filed a companion Petition for Fee Arbitration. After a November 2016 hearing before the Fee Arbitration Commission, during which time McDaniel and Temor each testified, the Commission determined that McDaniel had not earned some of the fees he previously charged his former client.
Specifically, prior to Temor?s family matters hearing, McDaniel failed to conduct discovery; failed to prepare his client for testimony, and failed to prepare claims and/or defenses on Temor?s behalf. In that regard, McDaniel?s failures constituted violations of M. R. Prof. Conduct 1.3 [diligence]; 1.4(a)[communication]; and 1.5(a) [excessive fee]. McDaniel agrees that he engaged in some professional misconduct and that he has undertaken remedial measures geared toward avoiding such future occurrences.
Ultimately, the Fee Arbitration Commission issued a decision awarding Temor a $792.00 reimbursement of the fees he previously paid to McDaniel. That reimbursement was made by McDaniel in a timely fashion. As required by that Fee Commission decision, McDaniel returned the requisite amount of funds to Temor.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. The Grievance Commission notes that Attorney McDaniel has taken responsibility for his errors in the representation of Mr. Temor. At the disciplinary hearing, McDaniel expressed his remorse for his violations of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and McDaniel agrees that he did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission finds that a public reprimand serves those purposes.
Therefore, the Grievance Commission accepts the agreement of the parties, including Attorney McDaniel?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to James R. McDaniel II, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(b)(5).
Date: September 13, 2017
Vendean V. Vafiades, Esq., Panel Chair
Stephanie Anderson, Esq., Panel Member
Franklin D. Gooding, Public Member
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: BAR-14-12
Issued by: Maine Supreme Judicial Court
Date: September 14, 2017
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Suspension
Disposition/Conduct:
Suspension Vacated per Order of 8/28/18 Order on Appeal
Conflict of Interest: Current Clients, Advisor, Violate of Attempt to Violate the Maine Rules of Professional Conduct or the Mai
This matter is before the Court on the Board of Overseers of the Bar’s Petition for Immediate Interim Suspension. The petition, filed May 26, 2017, sought Gary M. Prolman’s suspension from the practice of law following his reinstatement from a prior suspension that had resulted from his being charged and convicted of a federal crime. That reinstatement was effective July 1, 2016.
Gary M. Prolman’s prior, relevant disciplinary history with the Board of Overseers of the Bar that led to his previous suspension from the practice of law and his reinstatement is recounted in this Court’s order dated March 7, 2016, which, rather than being repeated, is incorporated by reference herein. That order stated restrictions and limitations that applied to Prolman’s practice of law and professional conduct following his reinstatement. Relevant to this proceeding, the March 7, 2016, order, at 24-25, stated:
(3) Reinstatement, and continuation of active practice of law is conditioned on Gary M. Prolman’s:
(a) Compliance with all the terms and conditions of his federal sentence and community release.
(b) Continued engagement in substance abuse counseling and treatment, to the satisfaction of the Board of Overseers of the Bar, for a period of at least four years after the termination of any supervision pursuant to his federal sentence and community release.
(c) No excessive consumption of alcoholic beverages, and no possession or consumption of marijuana or illegal drugs, with this condition subject to monitoring and testing as determined by the Board of Overseers of the Bar, with Prolman to pay a reasonable fee for Board’s monitoring and testing activities. If Prolman and the Board are unable to agree on a monitoring, testing and fee payment program, and such cannot be arranged through the Maine Assistance Program, the parties shall return to Court for further direction.
(d) Continued compliance with the terms and conditions stated in the Maine Bar Rules and the Maine Rules of Professional Conduct for a person to continue in active practice in the State of Maine.
Prolman’s conduct is also subject to restrictions imposed by the terms of probation and supervised release pursuant to his federal sentence. The federal supervised release conditions, overseen by a federal probation officer, originally included requirements of no use or possession of "any controlled substance, alcohol or other intoxicant, " no association with known felons, and, following his reinstatement to the practice of law, no representation of individuals with criminal cases pending before the federal courts, and no representation of individuals charged with felonies or drug crimes.
After Prolman’s reinstatement to the practice of law, and after he had been practicing for a few months, some of the restrictions were apparently modified to allow association with persons convicted of felonies, but for business purposes only, and to allow representation of individuals charged in state courts with felonies or drug-related crimes.
There is some uncertainty with regard to the nature of the restriction regarding individuals with criminal charges pending in the federal courts. From the evidence, it is uncertain whether this restriction barred Prolman from representing people on criminal charges before the federal courts or whether it barred Prolman from representing individuals who happened to have charges pending before the federal courts for any other purpose, even if Prolman was not representing the individuals on the federal charges.
Prolman was required to, and did, file monthly reports detailing his compliance with his conditions of federal probation, including listing the individuals he was representing and the purposes of his representation. He was also required to submit to random testing, at the request of his probation officer, for use of alcohol or illegal substances. And he was required, in the monthly reports, to list individuals living with him at his residence.
On April 17, 2017, a client of Prolman’s filed a grievance complaint with the Board of Overseers of the Bar. Board Ex. 23. The client had been assisted in preparing the complaint by a Sagadahoc County Sheriff’s Deputy who was supervising the diversion program in which the client was participating as part of her compliance with the terms of her probation on an Unlawful Trafficking in Scheduled Drugs (Class B) charge, 17-A M.R.S. ¶ 1103(1-A)(A) (2012). Board Ex. 29. The Bar complaint alleged that while the client had been living at Prolman’s residence in Saco in late March and early April, Prolman had engaged in sexual acts with her and had taken improper advantage of the client’s vulnerability in his professional relationship with the client.
After a brief investigation, including contacting the client and obtaining an affidavit regarding Prolman’s conduct from the client, the Board filed a Petition for Immediate Interim Suspension with the Court. The petition was based on the client’s affidavit and other supporting materials. The petition alleged violation of several Rules of Professional Conduct as a result of Prolman’s alleged taking advantage of his client’s vulnerabilities and betraying his client’s trust in engaging in a sexual relationship with the client, violation of the terms of the Court’s March 7, 2016, reinstatement order, and violations of certain terms of Prolman’s federal probation order. Prolman denied the allegations.
After a conference with counsel, by a June 5, 2017, scheduling order, the Court scheduled a period for discovery and disclosure of evidence and anticipated witnesses, and scheduled a contested hearing in the matter. The hearing was conducted on August 30 and 31 and September 7, 2017.
At the hearing, the Court received testimony from Prolman, his former client and thirteen other witnesses, a stipulation as to testimony that would be offered by two other witnesses, and it admitted into evidence and has considered Board Exhibits 1-30 (except for Board Exhibits 3 and 4 which were withdrawn and have not been considered) and Prolman’s Exhibits 1-12.1
Based on the record developed at the hearing, the Court finds the following facts. Except as otherwise indicated, the facts are established to the preponderance of evidence standard of proof. M. Bar R. 14(b)(4).
In its petition to the Court seeking an immediate suspension, the Board alleged that Prolman had violated Maine Rules of Professional Conduct 1.5(a), 1.7(a)(2), 1.16(a)(1), 2.1, 3.4(c), and 8.4(a) and (d), and had violated the Attorney’s Oath. Before the beginning of closing arguments, the Court confirmed with Bar counsel that the violations of the Rules of Professional Conduct asserted in the initial petition were the violations of the Rules of Professional Conduct being asserted at the hearing. During closing argument, Bar counsel argued that violations of Rules of Professional Conduct not indicated in the initial petition, specifically violations of Rules of Professional Conduct 4.3, 5.2, 6.1, and 6.3(1), were also being asserted.
The Court may consider whether violations of the newly asserted provisions of the Maine Rules of Professional Conduct have been proved only if it can conclude that the issues relating to these violations were tried by agreement or that the respondent, Gray M. Prolman, otherwise had adequate notice of these claimed violations and opportunity to present evidence and argument regarding them.
The Court now proceeds to consider whether the claimed violations of the Maine Rules of Professional Conduct, or any of them, have been proved. Initially it is important to note that, unlike the professional conduct rules of some other states and the ABA Model Rules of Professional Conduct, the Maine Rules of Professional Conduct do not explicitly prohibit a sexual relationship between an attorney and a client. Thus, comment number 12 to Maine Rules of Professional Conduct 1.7 states:
[12] Maine has not adopted the ABA Model Rules’ categorical prohibition on an attorney forming a sexual relationship with an existing client because such a rule seems unnecessary to address true disciplinary problems and it threatens to make disciplinary issues out of conduct that we do not believe should be a matter of attorney discipline. However, the lack of a categorical prohibition should not be construed as an implicit approval of such relationships. Attorneys have been disciplined under the former Maine Code of Professional Responsibility for entering into sexual relations with clients, and they may be disciplined for similar conduct under these rules. The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. In certain types of representations such as family or juvenile matters, the relationship is almost always unequal; thus, a sexual relationship between lawyer and client in such circumstance may involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer’s ability to represent the client will be materially limited by the sexual relationship.
Comment 12 to Rule 1.7 is also incorporated by reference for Comment 17 to Rule 1.8 and Comment 6 to Rule 2.1.
The gist of those comments is that while, in Maine, a sexual relationship between an attorney and a client is not categorically prohibited, there are many situations where a sexual relationship between an attorney and a client will combine with other factors to cause a violation of one or more of the Rules of Professional Conduct.
Turning to the violations alleged by the Board of Overseers of the Bar:
Rule 1.5(a) directs that "a lawyer shall not make an arrangement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. " Any claim that the flat fees charged and collected here were unreasonable is not proved. Both of the endeavors for which the flat fees were charged were successful. The work to resolve the Florida charge was completed before the end of March, and the work to seek an early termination of the client’s probation was essentially resolved in early March, though it was not confirmed until early June, after Prolman had withdrawn from representing the client at the end of April.
Rule 1.7(a)(2) addresses conflicts of interests between different clients or between a client or former client and a third person or personal interest of the lawyer. No such conflicts of interest with other clients or third persons is proved here. However, Prolman’s personal interest in initiating a sexual relationship with his client certainly conflicted with the best interests of his vulnerable client. Violation of Rule 1.7(a)(2) is proved.
Rule 1.16(a)(1) requires that a lawyer not represent a client or, where representation has commenced, shall withdraw from representation of the client if the representation will result in violation of the Rules of Professional Conduct or other laws. The evidence here indicates that Prolman withdrew from representation of the client within a reasonable time after their dispute arose. Violation of Rule 1.16(a)(1) has not been proved.
Rule 2.1 states that "in representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, emotional and political factors, that may be relevant to the client’s situation. "
Violation of Rule 2.1 is proved. Prolman committed professional misconduct in not advising his vulnerable client and her supporters that the apartment that he was making available to her would result in her living with him in a circumstance where she would have little or no privacy and be required to use a bathroom right next to his bedroom. Further, regardless of what information Prolman did or did not give to his client and her supporters about the living arrangements, he should have known that having such a vulnerable client with her unfortunate history living with him, particularly in light of the recent trauma she had suffered, and her history of physical and emotional abuse and victimization through sex trafficking, is something he absolutely should not have advised in the circumstances.
Prolman also violated Rule 2.1 by taking advantage of his client’s vulnerabilities to initiate an intimate sexual relationship with her to which she submitted, despite her finding Prolman’s sexual advances to be "gross. "
Rule 3.4(c) prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. No violation of an obligation to a tribunal before which he was appearing on behalf of his client has been proved here. Once a conflict arose between Prolman and his client, he withdrew from representation at a time after the issues before the tribunal had essentially been resolved by agreement subject only to confirmation that later occurred when the client appeared unrepresented.
Rule 8.4(a) indicates that it is professional misconduct for a lawyer to violate or attempt to violate the Maine Rules of Professional Conduct or the Maine Bar Rules. Essentially therefore, if violation of another rule is found, as violation of Rules 1.7(a)(2) and 2.1 has been found here, then Rule 8.4(a) has been violated.
Rule 8.4(d) states that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice. " Here the Board has proved that having a vulnerable client with a history of victimization and abuse come to live with him, was very damaging to his client, took advantage of her, furthered her history of victimization and submission to abuse, and destroyed their previously good and successful attorney/client relationship. While the evidence would not support it as a finding, it also appears likely that the damaging relationship with Prolman caused the client to refuse to cooperate in the prosecution of her abusive boyfriend and may have caused her to seek to reestablish the relationship with the abusive boyfriend due to the abuse she suffered at Prolman’s hands.
The Board also asserted in its petition that Prolman violated the Attorney’s Oath which is often described as a concise summary of the professional ethical obligations of an attorney. The Attorney’s Oath is stated in 4 M.R.S. ¶ 806:
You solemnly swear that you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented; you will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same; that you will delay no man for lucre or malice, but will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well as to the courts, as to your clients. So help you God.
Prolman’s actions (i) arranging for his vulnerable and submissive client to move into his apartment without disclosing to her, her diversion officer, or her other supporters that he also lived there; (ii) initiating a sexual relationship with his client; and (iii) providing alcoholic beverages to be consumed by him and his client in violation of the terms of probation of each of them, violated his obligation, imposed by the Attorney’s Oath, to conduct himself toward his client with the best of his knowledge and discretion and to act towards her "with all good fidelity. "
Rule 4.3 cited in the Board’s closing argument, relates to dealings with unrepresented persons. The Court finds that no improper dealings with unrepresented persons has been proved here.
Rule 5.2 addresses responsibilities to a lawyer subordinate to another lawyer. No violation of 5.2 is proved in this proceeding.
Rule 6.1 addresses and promotes providing voluntary pro bono services. There was an allegation here that Prolman violated the conditions of his federal probation by providing legal services, perhaps pro bono services, to individuals with matters pending before the federal courts. The representation at issue did not involve appearing on behalf of individuals on the pending federal criminal charges. Rather, one representation involved a protection from abuse matter and the other representation involved a social security disability claim. It is not apparent that Prolman’s conditions of federal probation prohibit representation of individuals charged with federal crimes, in other forums, unrelated to the criminal charges. Such representation has not been demonstrated to violate Rule 6.1.
Rule 6.3(1) relates to service to legal services organizations and prohibition of conflicts of interest between work for clients and work for legal services organizations. No violation of 6.3 has been proved here.
As sanctions for the professional misconduct proved here, the Board of Overseers of the Bar argues for a sanction of disbarment or a minimum suspension from the practice of law of three years. Prolman, through counsel, argues that if any violation is found, a maximum sanction of a public reprimand is appropriate.
In support of its position, the Board has offered seventeen opinions from other states addressing attorney discipline for sexual activity with clients or with others, sometimes involving multiple victims and/or physical violence. Some of those opinions are from states that, unlike Maine, categorically prohibit sexual relationships between attorneys and clients, others involve multiple victims, physical violence, or the commission of criminal acts. Because of these differences, the offered opinions from other states are not directly analogous to this case, and not particularly helpful in determining the appropriate sanction.
The violations of the Rules and Professional Conduct upon which to base a sanction include:
- Arranging for a vulnerable client, with a history of physical and sexual abuse by and submissiveness to men she was living with, to move in with him and not disclosing this living arrangement to the client’s diversion officer and others supporting her effort to comply with her terms of probation. This action violated Rule 2.1 requiring any attorney to exercise independent professional judgment and render candid advice. Creating this living arrangement, with this client, was a serious error of judgment. Not disclosing to the client or her support team that the offered apartment involved moving in with him was a failure to render candid advice. Violation of Rule 2.1 was also a violation of Rule 8.4(a).
- Initiating and engaging in a sexual relationship, including performing sex acts on more than one occasion, with a client he knew to be vulnerable and submissive. This action violated Rule 1.7(a)(2) by placing Prolman’s personal interest over the best interests of his client. This action also violated the obligation imposed by the Attorney’s Oath to act in the best interests of his client, or, to use the ancient language, to act "with all good fidelity" toward his client. In initiating the sexual relationship with his client, Prolman put his interest in obtaining sexual gratification ahead of his client’s interests. As Comment 12 to Rule 1.7 states, when a lawyer-client relationship is "unequal, " "a sexual relationship between lawyer and client . . . may involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage. "
- Consuming alcoholic beverages and providing alcoholic beverages for consumption to his client. While the Court’s March 7, 2016, order prohibited only "excessive" consumption of alcoholic beverages, that order also required compliance with the conditions of Prolman’s federal sentence. The federal probation conditions prohibited any possession or use of alcoholic beverages. Thus, Prolman’s consumption of alcoholic beverages violated this Court’s order, and violated Rule 8.4(d) prohibiting conduct "prejudicial to the administration of justice. " Providing alcoholic beverages to his client caused the client to violate her conditions of probation, placing her freedom and the early termination of her probation at risk. This also violated Rule 8.4(d). And providing alcoholic beverages in those circumstances certainly was not acting toward the client using the best of Prolman’s knowledge and discretion, as required by the Attorney’s Oath.
With these violations found, the Court must determine a sanction. In Maine, there are few comparable cases of professional misconduct, involving sexual relations with a client, to gage what an appropriate sanction might be. Guidance on factors to be considered in determining a sanction is provided in Bar Rule 21(c) which states:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer’s misconduct; and
- the existence of any aggravating or mitigating factors.
Here, by initiating a sexual relationship with his client and by providing her alcoholic beverages to consume, Prolman violated duties owed to his client and the legal system as discussed above. Prolman’s actions in his treatment of his client and in his failure to disclose to her support team that she would be living with him was negligent and reckless, though probably not so well thought out or planned in advance sufficiently to be considered intentional.
Imposing oneself sexually on a nonconsenting, vulnerable, and submissive person inevitably causes psychological injury to the person subject to such advances and caused psychological injury to the client in this case.
Considering aggravating and mitigating circumstances in addition to the factors discussed above, Prolman’s professional services were successful in achieving the client’s objectives in the two cases for which he was retained. And he did get involved in trying to help his client reestablish her independence after her necessary separation from her dangerously abusive boyfriend. He arranged for her to get a new cell phone, and he arranged for her to get a job. Unfortunately, his effort to help his client became misguided when he had her move into his apartment and then initiated the sexual relationship that took advantage of the living arrangement and his client’s vulnerability.
The injury caused by Prolman’s conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life. He also placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked.
Considering all the circumstances discussed above, the Court determines that a six-month suspension from the practice of law is the appropriate sanction in the circumstances. To allow Prolman time to provide the required notices, M. Bar R. 31, and make appropriate arrangements for his practice, the effective date of the suspension is deferred to November 1, 2017.
The Court ORDERS:
Gary M. Prolman shall be suspended from the practice of law for a term of six months, with the suspension commencing on November 1, 2017.
Dated: September 14, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1During the hearing, the parties agreed that exhibits identifying clients of Gary Prolman and the nature of his work for those clients, which were unrelated to the issues before the Court, could be redacted to remove the client identifications. The exhibits at issue are Board Exhibits 5, 8, 10, 11, 17, 18, & 20, and Prolman Exhibits 3 and part of 5. The redacted exhibits protecting the unrelated client information have been filed.
2"Tasting room" appears to be the modern replacement for the term "saloon" or "tavern, " a place where alcoholic drinks are sold and drunk, with, according to the record, little or no available food service. See The American Heritage Dictionary of the English Language, at 1145 ("saloon" defined), 1319 ("tavern" defined) (1976 ed.).
3The client resided at Prolman’s apartment beginning on the evening of March 27, 2017 and continuing to the morning of April 11, 2017. On one or two nights during that time the client stayed overnight in Westbrook with her six-year-old child and the father of the child. During the client’s later time at the apartment, when she became familiar with Prolman’s schedule, she made herself unavailable to Prolman in the evening hours. With some of the evenings accounted for, the Court finds that the sex acts between Prolman and his client occurred on more than one occasion between March 29 and April 9.
Board of Overseers of the Bar v. Ernest L. Manderson, Esq.
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Docket No.: BAR-17-16
Issued by: Maine Supreme Judicial Court
Date: September 11, 2017
Respondent: Ernest L. Manderson, Esq.
Bar Number: 000882
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, the Board of Overseers of the Bar is appointed Limited Receiver for final closing of the law practice of Ernest L. Manderson. Pursuant to this Order, the Board as Limited Receiver shall:
- secure any professional files, client property and client data of Ernest L. Manderson;
- inventory client files;
- reconcile IOLTA accounts;
- attempt to return client property.
As a service to the bar, the Board shall act as Receiver for the Manderson law office on a pro bono basis. However, the Board may seek reimbursement of costs associated with Receivership duties and the law office of Ernest L. Manderson shall be the first choice for source of payment for any disbursements made in this matter. If insufficient assets are available from the law office, the Board of Overseers may be an alternate payment source for expenses related to the law office closure.
The Board shall act as Limited Receiver until discharged by the Court in accordance with M. Bar R 32(c).
The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R 32.
Within 120 of the date of this signed Order, the Board, as Limited Receiver, shall report to the Court on the status of this matter.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: September 11, 2017
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Andrew L. Broaddus, Esq.
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Docket No.: GCF# 17-044
Issued by: Grievance Commission
Date: September 29, 2017
Respondent: Andrew L. Broaddus, Esq.
Bar Number: 002302
Order: Reprimand
Disposition/Conduct: Competence, Diligence, Communication, Misconduct
M. Bar R. 13(e)
On September 8, 2017, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by the Respondent, Andrew L. Broaddus, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on May 10, 2017.
This matter came before the Panel for a hearing upon the Petition and the Answer to the Petition in this action. The Answer to the Petition admitted the averments of the Petition, and so the hearing held by the Panel focused solely upon the appropriate sanction.
Due notice of the hearing, held on September 8, 2017, was given and acknowledged, and all parties agreed to the composition of the Panel, which consisted of Robert S. Hark, Esquire as Chair, Justin D. LeBlanc, Esquire and Richard P. Dana, CPA.
The Board was represented by Bar Counsel, J. Scott Davis; Respondent appeared, pro se. Present in person was the Complainant.
The Panel heard testimony from the Complainant and the Respondent and admitted Joint Exhibits 1,2,3, and 4.
At the Close of the evidence, both Bar Counsel and Respondent were heard orally on the subject of the appropriate sanctions. At that point, the public hearing was closed and the Panel proceeded to deliberate in private.
The allegations of the Petition, which were admitted, entailed violations of the Maine Rules of Professional Conduct, specifically, Rule 1.1 (competence), Rule 1.3 (diligence) and Rule 1.4 (communication) and Rule 8.4 (misconduct).
The kernel of the allegations of misconduct consisted of, first, failing to diligently provide timely legal services to the complainant by failing to draft a will for many months after it was requested (the Respondent testified that he would normally respond in a matter of weeks); second, lack of competence, in not having the will properly witnessed, and having the will notarized improperly. There also seems to have been no discussion with the client about whether her previous will, executed in New York after the death of her husband, would still have been enforceable and sufficient to be probated here in Maine.
Subsequent to the filing of the complaint by the Complainant, the Respondent rectified the matters of competence by drafting and supervising the execution of a new will.
All of this having been admitted, the task before the Panel is to determine the appropriate sanction.
The standards for the appropriateness of a reprimand are found in the Annotated Standards for Imposing Lawyer Sanctions published by the American Bar Association, made applicable by Bar R. 21(c), and specifically in section 7.3 of those standards. This standard states:
Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.
There is no question that the violation alleged and found, pertaining to diligence and competence, caused at least potential injury to the Complainant. Although she is currently alive and well, at her advanced age, there was certainly a risk of potential injury to her or to her successors in interest.
Section 9.22 lists those factors which may be considered in aggravation. Among the aggravating factors that may be considered here are: a pattern of misconduct; substantial experience in the practice of law; and vulnerability of the victim. Although the evidence is insufficient here to establish a pattern of misconduct, this client was 86 years old, and notwithstanding that she seems to be very sprightly and alert for her age, any client of that age should be deemed to be vulnerable. The discussion of standard 9.22 states that "substantial years of practice can be considered aggravating factor under standard 9.22(i) because a lawyer with a great deal of experience should know better than to engage in misconduct." In this instance, the respondent has been practicing law for 37 years.
Section 9.32 lists factors that may be considered in mitigation. Among these factors one finds "timely good-faith effort to make restitution or to rectify consequences of misconduct," and "full and free disclosure to disciplinary board or cooperative attitude toward proceedings." The panel finds that the respondent did make a timely good-faith effort to rectify the consequences of his misconduct, and has been cooperative with respect to these proceedings.
Section 4.43 states, "[r]eprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client." Here the respondent has admitted that while he normally responds to a client seeking a will within a matter of weeks, he allowed many months to pass before responding to the Complainant's phone call asking about the will.
The panel also finds that the respondent's practices concerning the execution of wills is considerably short of best practices.
Further, a propos the issue of competence, the Respondent's statements about his practice of drafting self-proved wills only in cases where there is a likelihood of challenge is particularly troubling. Putting an attorney in the position of foreseeing which sets of circumstances might create a risk of challenge to a will assumes that the attorney is always aware not only of the existing facts and circumstances, but also of circumstances that may occur in the future. The majority of attorneys in Maine utilize self-proved wills as the norm.
Having heard and considered the evidence, the Panel finds that the sanction of a reprimand is called for here. It is therefore
that the Respondent, Andrew L Broaddus, shall be and hereby is reprimanded for the conduct described herein.
Date: September 29, 2017
Robert S. Hark, Esq. Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Erielle L. Dexter
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Docket No.: GCF# 17-017
Issued by: Grievance Commission
Date: September 29, 2017
Respondent: Erielle L. Dexter
Bar Number: 004762
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate or Attempt to Violate the MRPC or the Maine Bar Rules,Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On September 8, 201 7, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning misconduct by the Respondent, Erielle L. Dexter. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on June 27, 2017.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis. Attorney Dexter failed to appear.
Pursuant to M. Bar R. 13 (e), on or about January 5, 2017, Bar Counsel filed a grievance complaint alleging that Respondent had violated M. Bar R. 4(k)(8), based upon her failure to file the required "notification affidavit" attesting her compliance with M. Bar R. 4(k) in light of her suspension from practice in Maine effective October 18, 2016. At the time of the hearing, the Respondent having failed to appear, Bar counsel indicated his satisfaction with the composition of the Panel.
Effective October 18, 2016, Respondent was administratively suspended by the Board pursuant to M. Bar R. 4(g)(2) due to her failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(b) In response to Bar Counsel's letter of January 19, 2017, notifying Respondent of these obligations, Respondent failed to file any response. In response to Bar Counsel's letter of March 7, 2017, requesting her comments in response to the Grievance Complaint, Respondent also failed to file a response.
Respondent remains suspended from the practice of law in Maine for having failed to file the aforesaid affidavits or to have addressed the administrative rule failures that had caused her suspension to be imposed. The panel finds that Respondent has violated M. Bar R. 4(k)(8) and M.R. Prof. Conduct 8.1 and 8.4(a) and (d).
Having concluded that respondent had violated the aforesaid Rules, it remains for the panel to determine the appropriate sanction. The Maine Bar Rules provide that the purpose of bar disciplinary proceedings is not punishment, but rather, the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Among the factors considered in imposing sanctions are: the duty violated, the lawyer's mental state, actual or potential injury caused by the lawyer's misconduct and existence of any aggravating or mitigating circumstances. See Me. Bar. R. 21(c) and ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards).
The first factor to be considered for sanctions under ABA Standards is to determine what duty the Respondent has breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Respondent violated her duties to the legal system by failing to complete the annual registration requirements, by failing to file the required notification affidavit once she was administratively suspended, and by failing to comply with the continuing legal education requirements applicable to her, as set forth above. Respondent's neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Respondent's continuing failure to file an affidavit complying with Maine Bar Rule 4(k)(8) is an aggravating circumstance. Because the evidence supports a finding that respondent did, in fact, violate the Maine Rules of Professional Conduct, the Panel finds that a public reprimand serves those purposes. Therefore, the panel concludes that the appropriate disposition of this case is a public reprimand to Respondent, which is now hereby issued and imposed upon her pursuant to Maine Bar Rule 21(b)(5).
Date: September 29, 2017
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Matthew E. Campbell, Esq.
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Docket No.: GCF# 17-123
Issued by: Grievance Commission
Date: October 13, 2017
Respondent: Matthew E. Campbell, Esq.
Bar Number: 007296
Order: Admonition
Disposition/Conduct: Competence, Diligence, Responsibilities regarding Nonlawyer Assistants
M. Bar R. 13(e)
On October 13, 2017, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Attorney Matthew E. Campbell. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 10, 2017.
At the hearing, Attorney Campbell was present and represented by Attorney Phillip E. Johnson, and the Board was represented by Bar Counsel J. Scott Davis. Prior to the scheduled hearing date, counsel notified the Clerk that they had agreed upon a proposed Stipulated Report of this disciplinary matter, with that proposed sanction Report being submitted for Panel C?s review and consideration. The complainant, Eva V. Albano, had been provided with a copy of the parties? proposed Stipulated Report. She was present and made comments to the Panel at that proceeding.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Attorney Matthew E. Campbell of Portland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine, and he is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Campbell was admitted to the Maine Bar in 1991 and currently serves as full-time counsel for Phenix Title Services in Portland.
On March 13, 2017, Eva V. Albano filed a complaint against Attorney Campbell. Attorney Campbell filed his initial response on March 27, 2017. During the course of the Board?s investigation, Ms. Albano and Attorney Campbell were afforded respective opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b). Ms. Albano?s complaint concerned Attorney Campbell?s failure to properly monitor the handling of $525.00, the amount of ?past due condo dues,? that Ms. Albano asserted had been incorrectly assessed against her by the Sawyer Brook Condominium Association and withheld in escrow in connection with the sale of property located at 214 North Street #5, in Saco, Maine on September 11, 2015. Ms. Albano?s complaint also involved Attorney Campbell?s failure to reply to her inquiries and requests concerning the delay of that $525.00 being timely paid to her.
At that condominium sale in September of 2015, Attorney Campbell had served as counsel for Phenix Title Services that represented Summit Funding, Inc. in the financing of that transaction. At the closing, Ms. Albano discovered that $525.00 in condominium dues had been deducted from the sale proceeds to be paid to her. She did not believe this deduction was appropriate because she did not believe that she owed the past dues. However, to allow the closing to still then properly proceed, the parties agreed to have Attorney Campbell hold this amount of disputed dues in escrow. Delays then ensued, with Ms. Albano receiving various reports from Phenix, including a report from Attorney Campbell?s Assistant that the escrowed funds had been inadvertently ?released? by Phenix Title Services to the condominium association. Attorney Campbell subsequently failed to respond to several inquiries made to him by Ms. Albano.
As a result of Attorney Campbell?s lack of response, Ms. Albano filed an action against Attorney Campbell in small claims court in December of 2016. On January 24, 2017 ? two days before the small claims hearing ? Attorney Campbell then paid Ms. Albano that full amount of $525.00.
Throughout his response to this grievance, Attorney Campbell has acknowledged that ?through inadvertence? Phenix?s accounting department had incorrectly disbursed the $525.00 in funds to the condominium association. He has also agreed that it was only after Ms. Albano filed her small claims suit, more than a full year after that closing date, that he then settled that court action and finally paid Ms. Albano that $525.00 fee.
Attorney Campbell agrees and admits that his actions in this matter constituted professional misconduct in his failure to have proper professional conduct safeguards in place to prevent Phenix?s improper release of Ms. Albano?s funds. Attorney Campbell further admits and agrees that his failure to respond to Ms. Albano?s questions and inquiries as to the status of the $525.00 owed to her was also improper conduct by him. At that hearing, Attorneys Johnson and Campbell each confirmed to the Panel that as a result of Ms. Albano?s complaint Attorney Campbell has made significant improvements to the Phenix Title Services? office and its case management system. For example, Phenix has hired two additional internal staff people for the Portland office, including one who is assisting in title examinations, which Attorney Campbell had been doing by himself. Phenix is in the process of hiring an additional new attorney to assist in all aspects of the practice, including taking on some of the work Attorney Campbell had been performing. The escrow practice at Phenix has changed. Now, rather than staff writing and holding physical checks in the file marked ESCROW, Phenix has implemented a new procedure pursuant to which no check for escrowed funds gets written in advance of confirmation that it is properly scheduled to be remitted to the payee, and no escrowed funds are released without specific management approval. As a result, there is strict oversight of escrowed funds and more of Attorney Campbell?s time has been freed up for office management and staff oversight.
Attorney Campbell admits that his misconduct in this matter violated M. R. Prof. Conduct 1.1(competence); 1.3(diligence); and 5.3(responsibilities regarding nonlawyer assistants).
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Pursuant to M. Bar R. 13(e)(8), the Panel has been informed that Attorney Campbell has no prior public disciplinary sanction record, but he did receive two minor private non-disciplinary warning sanctions in 2000 and 2001, respectively.
The Panel further notes and appreciates that Attorney Campbell has been contrite and taken responsibility for his transgressions in this matter. At the disciplinary hearing, Attorney Campbell expressed his remorse to Ms. Albano and to the Panel for his violations of the above-cited portions of the Maine Rules of Professional Conduct. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Campbell agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, the Panel finds that an Admonition is the appropriate sanction to be issued upon Attorney Campbell under the parameters of M. Bar R. 21(b)(1),(c).
Accordingly, the Panel accepts the agreement of the parties, including Attorney Campbell?s separately executed waiver of the right to file a Petition for Review, and concludes that due to Attorney Campbell?s above-outlined misconduct, the appropriate disposition of this case is an Admonition to Matthew E. Campbell, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1)
Date: October 13, 2017
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Christopher W. Keenan, Esq.
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Docket No.: BAR-17-14
Issued by: Maine Supreme Judicial Court
Date: October 13, 2017
Respondent: Christopher W. Keenan, Esq.
Bar Number: 003338
Order: Reprimand
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
This Court has received a certified copy of the Public Censure with Conditions and Order on Costs and Stipulation as to Facts, Violations, and Sanction by the New Hampshire Supreme Court dated June 20, 2017, publicly censuring Attorney Christopher Keenan for his violations of that Supreme Court's Rules and the Rules of Professional Conduct.
Attorney Keenan has notified the Court and Bar Counsel of his consent to the Board of Overseers of the Bar's request for imposition of identical discipline in Maine.
Therefore, by agreement of the parties, this Court hereby ORDERS:
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is granted in all respects;
- Effective immediately and pursuant to M. Bar R. 26(e), Christopher Keenan is reprimanded for his violations of those portions of the Maine Rules of Professional Conduct that are analogous to the New Hampshire Rules of Professional Conduct found to have been violated by Attorney Kennan in that Order.
DATED: October 13, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anthony A. Trask, Esq.
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Docket No.: GCF# 17-005
Issued by: Grievance Commission
Date: October 31, 2017
Respondent: Anthony A. Trask, Esq.
Bar Number: 008114
Order: Admonition
Disposition/Conduct: Diligence, Communication with Client
M. Bar R. 13(e)(10)(B) & 21(b)(1)
On October 31, 2017, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Anthony A. Trask, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 4, 2017.
At the hearing, Attorney Trask was present and represented by his counsel, Attorney James M. Bowie. The Board was represented by Bar Counsel J. Scott Davis.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report then being submitted for Grievance Commission Panel A?s review and consideration. The affected client, Dan Muscatell, and his spouse, Jenny Muscatell, attended that proceeding.
Having reviewed the agreed, proposed findings and Report as presented by counsel, the Panel makes the following disposition:
Respondent Attorney Anthony A. Trask of Bangor, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Trask was admitted to the Maine Bar in 1995 and is currently an associate attorney at the Rudman Winchell law firm in Bangor.
On August 8, 2016, Dan Muscatell filed a Fee Arbitration petition against Attorney Trask. The Award & Decision of Panel 4 of the Fee Arbitration Commission (FAC), dated December 13, 2016, became the basis for Bar Counsel?s filing of a sua sponte grievance complaint against Attorney Trask. Bar Counsel initiated this matter on that sua sponte basis under M. Bar R. 2(b)(2), due to findings by FAC Panel 4 that Attorney Trask?s fees were in part unreasonable and had ordered a $350.00 refund be made by Attorney Trask to Mr. Muscatell. That refund payment was timely made by Attorney Trask. Although there was no grievance complaint ever directly filed by Mr. Muscatell, as a result of that FAC Award, Bar Counsel inquired and requested a response from Attorney Trask regarding his representation of Mr. Muscatell.
In mid to late November 2015, Mr. Muscatell had filed his own pro se Motion to Modify regarding his child support obligations. He did so due to a health crisis resulting in a significant reduction of his previous regular employment income. On December 14, 2015, Mr. Muscatell then signed a fee agreement and engagement letter, hiring Attorney Charles Budd of Rudman Winchell as his counsel. Shortly thereafter, however, Attorney Budd was appointed to the Maine District Court, resulting in Attorney Trask becoming replacement counsel for Mr. Muscatell.
The first substantive meeting between Mr. Muscatell and Attorney Trask occurred on December 23, 2015. Mr. Muscatell?s significant potential reduction of the amount of his court-ordered weekly child support payments ? from $189 to $34 per week ? was then discussed by Attorney Trask. That reduced amount was computed by Attorney Trask?s applying the court mandated support guidelines to Mr. Muscatell?s reduced income. In his response letter to Bar Counsel, Attorney Trask admitted that he had then ??recommended that (Mr. Muscatell) commence paying child support at the lower level of $34.00 per week?? Although he had not yet made Mr. Muscatell aware of that specific reduced payment amount of $34.00 per week, on that same date (December 23, 2015), Attorney Trask submitted a letter to opposing counsel confirming that self-imposed child support payment plan and amount which was intended to be put in place by Mr. Muscatell. Attorney Trask maintained that position of such reduced child support being made by Mr. Muscatell, despite opposing counsel?s written request for more supporting documentation by his December 28, 2015 letter. In that regard, Attorney Trask failed to timely provide Mr. Muscatell with a copy of that December 28, 2015 letter wherein opposing counsel had requested Attorney Trask provide further confirmation of Mr. Muscatell?s medically induced lower income. Attorney Trask admits that he failed to timely provide that December 28th letter to Mr. Muscatell and discuss it with him until at least a month later.
Bar Counsel?s investigation included requesting and receiving information and comments from both Dan and Jenny Muscatell regarding the nature and substance of the legal advice, or lack thereof, provided by Attorney Trask on that lowered child support and related issues. In that regard, they each confirmed and Attorney Trask now agrees he failed to properly and completely advise Mr. Muscatell as to the actual ?contempt risks,? including service of process by law enforcement, concerning that unilateral lower child support amount that was contrary to the terms of the then current court order for such support.
Accordingly, Attorney Trask now agrees and admits his conduct was in violation of MRPC 1.3 (diligence); and 1.4(a) (communication with client).
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Pursuant to M. Bar R. 13(e)(6) the Panel has been notified that Attorney Trask has no prior sanction record on file with the Board. Furthermore, the Panel notes that Attorney Trask has taken responsibility for his transgressions. At the disciplinary hearing, he expressed his remorse to the Muscatells for his violations of those Maine Rules of Professional Conduct in his representation of Dan Muscatell?s child support modification matter.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Trask agrees that he did in fact violate those above-referenced portions of the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, upon that analysis for imposing a proper sanction under M. Bar R. 21(c), the Panel finds that the necessary and required factors under M. Bar R. 13(e)(10)(B) are present for an admonition to now be issued against Attorney Trask under M. Bar R. 21(b)(1)
Therefore, the Panel accepts the agreement of the parties, including Attorney Trask?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an admonition to Attorney Trask. Accordingly, that admonition is now hereby issued and imposed upon Anthony A. Trask, Esq. pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: October 31, 2017
Jonathan B. Huntington, Esq., Panel Chair
Christina M. Moylan, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. In Re Richard C. Anderson
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Docket No.: BAR-17-20
Issued by: Maine Supreme Judicial Court
Date: November 13, 2017
Respondent: Richard C. Anderson
Bar Number: 002766
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Richard C. Anderson has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Mr. Anderson's reinstatement pursuant to M. Bar R. 29(f)(l), subject to the Court's approval. The Court has reviewed Mr. Anderson's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Richard C. Anderson, Maine Bar #002766, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: November 13, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jeremey A. Miller
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Docket No.: BAR-17-17
Issued by: Maine Supreme Judicial Court
Date: November 21, 2017
Respondent: Jeremey A. Miller
Bar Number: 004398
Order: Disbarment
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
Jeremey A. Miller was admitted to the Maine bar in 2008. In March 2017, this Court issued an Order of Reciprocal Suspension based upon Mr. Miller's violations of numerous Rules of Professional Conduct while practicing in New Hampshire.
By previous administrative action, Mr. Miller was suspended due to his failure to timely renew his licensure and pay the required fees/assessments to the Maine Board of Overseers of the Bar (the Board). Prior to that administrative suspension, Mr. Miller was registered with the Board as a non-resident active attorney. According to the Board's records, Mr. Miller had almost exclusively been practicing in New Hampshire.
Since the March 2017 reciprocal suspension, the Board subsequently received confirmation that the New Hampshire Supreme Court issued an August 9, 2017 Order (of Disbarment) against Mr. Miller. According to the Order, Mr. Miller did not respond or otherwise participate in the disciplinary proceeding. The New Hampshire Court's Order became effective August 9, 2017.
Thereafter, the Board filed its instant Petition for Reciprocal Discipline. Proper notice of the Board's Petition was provided to Mr. Miller at his home address, consistent with M. Bar R. 15.
This Court has reviewed and considered the New Hampshire Court's Order. Notably, the imposition of disbarment was based in part upon the New Hampshire Court's finding that Mr. Miller engaged in trust account violations as well as multiple Professional Conduct Rule violations. Those Rules included 1.1 [competence]; 1.3 [diligence]; 1.4 [communication]; 1.5(a) [fees]; 1.7 [conflicts]; 1.15 [safeguarding client property]; 1.16(d) [protecting client interests/property after termination]; 1.19 [notification regarding professional liability insurance]; 3.3 [candor to the tribunal]; 3.4(c) [disobeying an obligation under the rules of a tribunal]; 4.1 [material false statements of fact or law to a third person]; 5.3 [responsibilities regarding nonlawyer assistance]; 8.1(b) [knowingly failing to respond to disciplinary authority]; 8.4(b) [commission of criminal act reflecting adversely on lawyer's honesty, trustworthiness or fitness as a lawyer] and 8.4(c) [engaging in conduct involving deceit, dishonesty or misrepresentation].
In this jurisdiction, Mr. Miller's misconduct would constitute analogous violations of the Maine Rules of Professional Conduct. Despite the opportunity to answer the Board's Petition for Reciprocal Discipline, Mr. Miller made no such filing and did not respond to this Court's September 21, 2017 Order to Show Cause.
The Court has considered the severity of Mr. Miller's misconduct, his prior discipline history and the ABA Standards for Imposing Lawyer Sanctions. Based upon those factors as well as the multiple rule violations resulting in the New Hampshire disbarment, this Court finds that reciprocal discipline in Maine is warranted.
Accordingly, the Court ORDERS that Jeremey A. Miller is now disbarred from the practice of law in Maine. If Mr. Miller has any Maine clients he shall comply with all applicable court rules in protecting those client interests, including cooperation with the Board of Overseers. Finally, Mr. Miller may not return to practicing law until such time as the Court considers and grants any Petition for Reinstatement he may subsequently file.
Dated: November 21, 2017
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Timothy C. Coughlin, Esq.
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Docket No.: BAR-17-19
Issued by: Maine Supreme Judicial Court
Date: November 21, 2017
Respondent: Timothy C. Coughlin, Esq.
Bar Number: 008069
Order: Reprimand
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
This Court has received a certified copy of the Reprimand and Order on Costs with accompanying Stipulation as to Facts, Violations, and Sanction by the New Hampshire Supreme Court dated September 19, 2017, publicly sanctioning Attorney Timothy Coughlin for his violations of the New Hampshire Rules of Professional Conduct.
Attorney Coughlin has notified the Court and Bar Counsel of his consent to the Board of Overseers of the Bar's request for imposition of identical discipline in Maine.
Therefore, by agreement of the parties, this Court hereby ORDERS:
- The Board of Overseers of the Bar's Petition for Reciprocal Discipline is granted in all respects;
- Effective immediately and pursuant to M. Bar R. 26(e), Timothy Coughlin is reprimanded for his violations of those portions of the Maine Rules of Professional Conduct that are analogous to the New Hampshire Rules of Professional Conduct found to have been violated by Attorney Coughlin in that Order.
Dated: November 21, 2017
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Douglas B. Chapman, Esq.
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Docket No.: BAR-16-18
Issued by: Maine Supreme Judicial Court
Date: December 11, 2017
Respondent: Douglas B. Chapman, Esq.
Bar Number: 000736
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseer?s Petition for Discharge filed on December 6, 2017. For good cause shown and without objection, the Board?s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar and Margaret T. Jeffery are discharged as Limited Co-Receivers of the law practice of Douglas B. Chapman, Esq. It is further ORDERED that the Board and Attorney Jeffery shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: December 11, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Frank B. Walker
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Docket No.: BAR-17-13
Issued by: Maine Supreme Judicial Court
Date: December 11, 2017
Respondent: Frank B. Walker
Bar Number: 000058
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseer?s Petition for Discharge filed on December 6, 2017. For good cause shown and without objection, the Board?s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Receiver of the law practice of Frank B. Walker. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: December 11, 2017
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Barry L. Pretzel, Esq.
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Docket No.: BAR-17-7
Issued by: Maine Supreme Judicial Court
Date: January 5, 2018
Respondent: Barry L. Pretzel, Esq.
Bar Number: 008931
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is Receiver Jeremy Pratt?s Report of Receiver and File Inventory filed on December 11, 2017. For good cause shown and without objection, Receiver Pratt?s final Report of Receiver is accepted by the Court.
Furthermore, it is ORDERED that Jeremy Pratt is discharged as Receiver of the law practice of Barry L. Pretzel. It is further ORDERED that Attorney Pratt shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: January 5, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Lawrence A. Lunn, Esq.
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Docket No.: GCF# 17-128
Issued by: Grievance Commission
Date: January 10, 2018
Respondent: Lawrence A. Lunn, Esq.
Bar Number: 002358
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Declining or Terminating Representation, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On January 10, 2018, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Lawrence A. Lunn, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 25, 2017.
At the hearing, Attorney Lunn appeared pro se and the Board was represented by Bar Counsel J. Scott Davis.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for Panel A?s review and consideration. The complainant, Robert S. Boucher, who had been provided with a copy of the parties? proposed Stipulated Report, was present and provided an opportunity to make comments to the Panel at that hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Lawrence A. Lunn, Esq. (Lunn) of Bangor, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Lunn was admitted to the Maine Bar in 1980 and currently has a solo practice.
On March 16, 2017, Robert S. Boucher filed a grievance complaint against Attorney Lunn, who then filed his initial written response with Bar Counsel on May 18, 2017.
During the course of the Board?s investigation, Mr. Boucher and Attorney Lunn were each afforded the respective opportunity for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
As a result, on or about August 7, 2017 a panel of the Grievance Commission reviewed Attorney Lunn?s actions in this matter, and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
Mr. Boucher?s complaint involves Attorney Lunn?s neglect and failures to communicate with proper responses to the requests of his client, Mr. Boucher, regarding the status ? including the retainer balance ? of the two related legal matters Mr. Boucher understood he had hired Attorney Lunn to undertake against his neighbor.
In that regard, in August 2013 Mr. Boucher had met with Attorney Lunn to discuss two different, but related matters: 1). To pursue a Protection from Harassment action; and 2). To possibly file a civil damages action. Each matter concerned Christopher Sabine?s (Mr. Boucher?s neighbor) misuse of his skidder and intentional ?water damage? (from snow plowing) to Mr. Boucher?s property.
Mr. Boucher?s grievance focused on Attorney Lunn?s lack of proper response(s) to his requests for status and progress updates about those matters.
Mr. Boucher?s requests to Attorney Lunn concerning the status of $5,000.00 retainer amount Mr. Boucher had paid to Attorney Lunn were likewise not properly answered by Attorney Lunn.
Mr. Boucher further claimed that for more than 3? years Attorney Lunn failed to take steps or efforts to have his Protection from Harassment action filed with the court.
Attorney Lunn?s initial written response to Bar Counsel?s investigative inquiry claimed that he did not feel Mr. Boucher had much of a case. However, he failed to include appropriate confirmation that he had actually ever communicated and properly informed Mr. Boucher that he would not pursue his matter(s), i.e. that Mr. Boucher would need to and should consult with other counsel.
Attorney Lunn agrees he failed to ever issue any declination letter to Mr. Boucher or otherwise properly confirm to him that he was not going to represent him regarding either matter, i.e., the Protection from Harassment or the ?snow plowing.? Attorney Lunn now agrees that such conduct by him was in violation of Rules 1.3 (diligence) and 1.4(a)(b) (communication) of the Maine Rules of Professional Conduct.
Mr. Boucher had also filed a fee petition with the Fee Arbitration Commission (FAC). That matter was heard on June 19, 2017 before Panel 4 of the FAC, with its Award and Determination being issued immediately on the next day, June 20, 2017.
By that Award, Panel 4 found in favor of Mr. Boucher, highlighted as follows:
- Since Attorney Lunn never charged Mr. Boucher for the PFH issue, the Panel only focused its concerns and analysis on Mr. Boucher?s possible civil damages action(s) against Mr. Sabine;
- Attorney Lunn?s billing of Boucher for his many ?uninvited (snowstorm) trips? to Mr. Boucher?s property was unreasonable;
- Attorney Lunn had also failed to ever clearly and fully inform Mr. Boucher about those snowstorm trips;
- Attorney Lunn failed to meet his burden of proof (which he had to meet due to the lack of a written fee agreement (see M. Bar R. 7(e)(12)) that the balance of $2,217.57 (from the $5,000.00 paid retainer) in fees and costs was reasonable and earned by him; and
- As a result, Attorney Lunn was then ordered by the FAC Award to refund that amount to Mr. Boucher, then being due within 30 days of his receipt of such notice (see M. Bar R. 7(g)).
As so ordered by that Award and required by the Maine Bar Rules, although Attorney Lunn had requested without success to meet Mr. Boucher elsewhere, he refunded that $2,217.57 balance to Mr. Boucher by delivering a check in that amount to Mr. Boucher at his residence on the last due date for making that payment, July 25, 2017. By doing so, Attorney Lunn?s conduct caused anxiety and angst to Mr. Boucher, whom Attorney Lunn was aware suffered from Post-Traumatic Stress Disorder (PTSD).
Based on the facts set forth above, Attorney Lunn admits that he engaged in violation of the applicable Maine Rules of Professional Conduct as detailed below. Specifically, those rules include M. R. of Prof. Conduct 1.3 (diligence); 1.4(a)(b) (communication); 1.16(d) (declining or terminating representation); and 8.4(a)(d) (conduct prejudicial to the administration of justice).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Pursuant to M. Bar R. 13(e)(6) the Panel has been informed that although Attorney Lunn has no prior disciplinary record, he has been privately informally sanctioned with informal warnings being issued to him by review panels of the Grievance Commission on several separate grievances from 1992 to 2013. More than one of those prior grievance matters involved neglect or other communication deficiencies similar to that endured by Mr. Boucher. In fact, in that last complaint matter in 2013, Attorney Lunn was informed by the Grievance Commission panel?s review of that complaint that he needed ?to improve his communications, which includes impending deadlines and notice to clients and courts of his withdrawal/terminated representation.?
The panel notes that Attorney Lunn has taken responsibility for his transgressions. At the disciplinary hearing, Attorney Lunn expressed his remorse to Mr. Boucher and to the Panel for his violations of the above-referenced portions of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Lunn agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, upon that analysis for imposing a proper sanction under M. Bar R. 21(c), which includes a review and analysis of his prior sanction history, an aggravating factor under M. Bar R. 21(c)(4), the Panel finds that a Reprimand must be issued against Attorney Lunn under M. Bar R. 21(b)(5)
Therefore, the Panel accepts the agreement of the parties, including Attorney Lunn?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a REPRIMAND to Lawrence A. Lunn, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: January 10, 2018
John P. Gause, Esq., Acting Panel Chair
Carolyn A. Silsby, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Ernest L. Manderson, Esq.
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Docket No.: BAR-17-16
Issued by: Maine Supreme Judicial Court
Date: January 10, 2018
Respondent: Ernest L. Manderson, Esq.
Bar Number: 000882
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseer?s Petition for Discharge filed on December 28, 2017. For good cause shown and without objection, the Board?s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Limited Receiver of the law practice of Ernest L. Manderson. It is further ORDERED that the Board shall continue to ensure that all client property is protected and/or destroyed consistent with the Maine Rules of Professional Conduct.
Dated: January 10, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Paul L. Letourneau
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Docket No.: BAR-16-17
Issued by: Maine Supreme Judicial Court
Date: January 25, 2018
Respondent: Paul L. Letourneau
Bar Number: 009544
Order: Suspension
Disposition/Conduct: Conflict of Personal Interest, Declining or Terminating Representation, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(g)
Plaintiff is the Board of Overseers of the Bar in this disciplinary matter. Defendant Paul L. Letourneau of South Portland, County of Cumberland, Maine for all time periods relevant herein was then an attorney admitted to practice law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
Letourneau was admitted to the Maine bar in 2003 and until the Court's Interim Suspension Order of July 27, 2016, was a solo practitioner with an office in South Portland, Maine.
The Board asserts and Letourneau now agrees that he engaged in conduct that violated specific portions of the Maine Rules of Professional Conduct (MRPC).
On or about June 15, 2016, Attorney Richard Berne filed a grievance complaint with the Board against Letourneau. According to that complaint, Attorney Berne submitted his filing on behalf of Letourneau’s former court appointed client, "L.K." 1 Attorney Berne became successor counsel following L.K. ’s discharge of Letourneau as her attorney on or about April 4, 2016.
The basis for Attorney Berne’s complaint was Letourneau’s graphically sexualized behavior toward L.K. during his representation of her concerning three serious criminal matters then pending in Cumberland and York County courts, respectively. Letourneau had been appointed to L.K. ’s three criminal matters in January 2016.
According to the complaint, Letourneau’s disturbing behavior began very early in his representation(s) of L.K. and continued up until her termination of him.
Letourneau's behavior included recurrent sexualized texting, i.e. "sexting" to L.K. and repeated suggestions by him that they meet to engage in sexual acts. Such unsolicited behavior by Letourneau, who was also then her attorney, was extremely embarrassing to, unwelcomed by, and intimidating to L.K., a vulnerable client. L.K. never reciprocated such sexting and she refused Letourneau's proposal to have sexual contact.
As a consequence of Letourneau’s conduct, L.K. reported that she became anxious, apprehensive and even more worried about how her declination of her attorney's unwelcome behavior would affect the outcome(s) of her legal interests which he was professionally obliged to protect.
L.K. also reported feeling very distressed and felt forced to remain polite to her attorney, given the power he held over her representation. Such a "balancing act" by L.K. was all the more difficult as she was then newly in recovery from her opiate addiction, a fact known by Letourneau from his legal representation in all of her matters.
Additional facts involved in Letourneau’s misconduct toward L.K. are specifically described as follows:
- Some of Letourneau’s texts to L.K. included pictures of his genitalia.
- Letourneau had commenced sending the texts almost immediately after meeting L.K. and continued throughout his representation(s) of her.
- On three occasions, Letourneau had sent L.K. videos of himself masturbating.
- Within the text messages, Letourneau remarked to her that he "had a lot to lose" related to those texts.
- Letourneau's repeated behavior adversely affected their attorney-client relationship.
- Additionally, after L.K. personally informed Letourneau that his texts were unwanted and made her uncomfortable, he persisted in sending them to her.
- L.K. reported that during the representation by Letourneau, she was then hesitant to report him because he was court-appointed and she could not afford to hire replacement counsel.
- L.K. reported that she did not then cease all contact and communications with Letourneau, in order to avoid him adversely affecting her criminal cases.
- However, on April 4, 2016, L.K. discharged Letourneau and directed him to have no further contact with her.
- On or about April 20, 20l6, Letourneau filed Motions to Withdraw from L.K.’s two separate Cumberland County criminal matters.
- On April 25, 2016, the Cumberland County Superior Court (Fritzsche, J.) granted each Motion to Withdraw.
- Despite that client discharge referenced above, Letourneau failed to immediately move to withdraw from the combined York County matters (Theft Class D and Violating Condition of Release) he was representing and handling for L.K.
- Apparently, due to the posture of L.K.’s two York County cases, each of which was on deferred disposition, Letourneau remained as court appointed counsel for those matters in York County until July 26, 2016, well after L.K. ’s April 4th discharge of him.
- Letourneau's professional obligation was to protect., rather than negatively affect L.K. 's legal interests.
By his conduct in this matter, the Court finds and Letourneau agrees that he violated the following Rules within the Maine Rules of Professional Conduct:
- l .7(a)(2) (conflict of personal interest);
- 1.16(a)(l)(2) (declining or terminating representation); and
- 8.4(a)(d) (conduct prejudicial to the administration of justice).
After opportunity for a contested hearing on December 6, 2017, the parties informed the Court that they had reached agreement on all previously disputed issues. Following recitation of the parties' proposal on the record, Mr. Letourneau’s affirmation that he agrees with the proposed sanction and attendant conditions, it is now hereby ORDERED as follows:
- Paul L. Letourneau is suspended from the practice of law for a term of 20 months, sixteen of which he has already served. The date for Mr. Letourneau’s reinstatement to active practice, conditioned upon his full compliance with the requirements enumerated herein, is April 1, 2018.
- Thereafter, Mr. Letourneau will be subject to one year of a suspended suspension ending on April 1, 2019, with a Monitoring of his law practice and required compliance with his reinstatement conditions. Any established violations of these reinstatement conditions will result in an automatic imposition of the additional year of suspension upon Mr. Letourneau.
- On or before December 21, 2017, Mr. Letourneau shall execute an updated contract with the Maine Assistance Program for Lawyers and Judges (MAP). By Court rule, that contract is confidential and shall include an initial restriction on Mr. Letourneau's return to practice and provisions for assistance with law office management concerns.
- The Monitoring of Mr. Letourneau and his practice shall be performed by a Maine lawyer mutually agreed upon by the parties. The Monitoring Order shall issue separately, but is incorporated by reference into this Order.
- Mr. Letourneau shall remain in treatment with Dr. Elyse Mangusson (or other agreed-upon psychologist/psychiatrist) and comply with all current (from the date of this order) and future treatment recommendations of that psychologist until such time as a modality of treatment is no longer necessary as determined by his treatment providers.
- On or before December 22, 2017, Mr. Letourneau shall execute releases for Dr. Mangusson and any other treatment providers to provide records and information to Bar Counsel and to MAP.
- Within one year from the date of this Order, Bar Counsel may seek to have Mr. Letourneau undergo an updated, comprehensive Psychosexual Assessment by a psychologist who specializes in such evaluations. If Mr. Letourneau objects to participating in an updated evaluation, the parties may elect to have the Court resolve the disputed issue.
- Mr. Letourneau shall never have any contact, direct or indirect, with LK;
- Through counsel, Mr. Letourneau is ordered to advise the Board of his current business and home addresses and notify it of any change in address within thirty days of such change;
- Through counsel, Mr. Letourneau is ordered to inform the Board of his employment status and where he is employed.
- If Mr. Letourneau works as a paralegal prior to his return to active practice, he shall have no direct client contact without the agreement of Bar Counsel or Order of the Court.
- If L.K. or her family files a claim with the Lawyers' Fund for Client Protection, Mr. Letourneau agrees not to oppose such requested relief by his former client.
- Mr. Letourneau shall not violate the Maine Rules of Professional Conduct or the laws of the United States or any state or local government during his suspension. If he engages in such violations, the Board may elect to bring the new complaint matter(s) directly to the Court for future disciplinary proceedings.
- Mr. Letourneau’s performance of the conditions of his MAP contract is a necessary requirement of this Order. Failure to so comply shall constitute a violation of the Order and may result in the automatic imposition of the additional term of suspension referenced in paragraph #2 of this Order.
The Clerk shall incorporate this Order into the docket by reference pursuant to M.R.Civ.P. 79(a).
Dated: January 25, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
1Initials are used throughout this document lo protect the client's privacy.
Board of Overseers of the Bar v. Harold H. Burbank II
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Docket No.: BAR-17-12
Issued by: Maine Supreme Judicial Court
Date: January 24, 2018
Respondent: Harold H. Burbank II
Bar Number: 006813
Order: Suspension
Disposition/Conduct: Competence, Diligence, Meritorious Claims and Contentions, Fairness to Opposing Party and Counsel, Violate or attempt to violate any provision of the Maine Bar Rules or the MRPC, Conduct Prejudicial to the Administration of Justice
Pursuant to M. Bar R. 13(g), the plaintiff Board of Overseers of the Bar has filed an Information alleging that defendant Harold H. Burbank II has violated multiple provisions of the Maine Rules of Professional Conduct. The Board seeks serious sanctions against Burbank, namely, his suspension from the practice of law in Maine.
This Information was filed in August of 2017, after a review of Burbank's conduct by the panel of the Grievance Commission. See M. Bar R. 13(e)(10)(E), (g).
The undersigned Active Retired Justice of the Supreme Judicial Court, sitting as a Single Justice, conducted a de novo testimonial hearing in this matter on October 18, 2017. See M. Bar R. 13(g)(2), 14(b). The Board was represented by Bar Counsel J. Scott Davis. Harold Burbank represented himself.
This court finds that the Board has established the following facts by a preponderance of the evidence. See M. Bar R. 14(b)(4).
Burbank was admitted to the Maine Bar in 1989. He primarily resides in Connecticut and has practiced law very little in Maine. He is currently administratively suspended from practicing in Maine pursuant to M. Bar. R. 4(g).
The basis for the grievance complaint against Burbank, leading to the filing of the within Information, is the matter of Lincoln v. Burbank, 2016 ME 138, 147 A.3d 1165, decided by the Supreme Judicial Court, sitting as the Law Court, on August 30, 2016. This court takes judicial notice of and adopts the findings and conclusions set out in that decision.
The case of Lincoln v. Burbank involved an appeal of a Northport property dispute litigated in the Superior Court in Penobscot County, in which neighbors of property owned by the Burbank family filed claims against the Burbanks seeking a prescriptive easement over the Burbank property and a declaratory judgement, for conversion, and for punitive damages against Burbank himself. Id. ¶ 18. Burbank represented himself; his father, Harold Burbank I; his brother, David Burbank; and his sister, Lori Darnell. Id. ¶ 2. After a jury-waived trial, the Superior Court found in favor of the neighbors and against Burbank's position. Id. ¶ 21. In addition, the Superior Court found in favor of other members of the Burbank family, who were co-owners of the Burbank property, on their cross-claim for partition by sale of the Burbank family property. Id. ¶¶ 19, 22. Only Harold Burbank II appealed the Superior Court's judgment. Id. ¶ 5 n.4.
The appeal was originally filed by Attorney Mariah A. Gleaton, who later withdrew as the attorney. Thereafter, Harold Burbank II represented himself.
By Order dated January 5, 2016, the Law Court rejected Burbank's brief, which was punched with three holes and bound with twine, see M.R. App. P. 7A(g)(3). The Law Court also ordered Burbank to show cause why he should not be sanctioned for failing to show why he should not be disqualified from representing three appellees-the family members he represented before the trial court-while representing himself as appellant. Burbank then moved to withdraw as counsel for the appellees.
The Law Court affirmed the Superior Court's decision, and also sanctioned Burbank for his serious misconduct in prosecuting the appeal.1 Id.¶¶ 61-64. In particular, the Law Court noted that Burbank stated facts not in the trial record, id. ¶ 24; raised issues without any further argument, id. ¶ 39; listed "meritless" and "frivolous" issues, id. ¶¶ 40-41; and made arguments "devoid of legal authority to support them," id. ¶ 52. The Law Court ultimately determined that there was "no merit in any of Burbank's arguments on appeal, including those raised in his reply briefs." Id. ¶ 45. At the conclusion of its decision, the Law Court summarized,
Throughout the various stages of this appeal, in his briefs, his Supplement of Legal Authorities, his request for oral argument, and his responses to opposing parties' motions, Burbank has consistently disregarded standards of law and practice that govern appellate review. He has asserted legal arguments that are frivolous and baseless, and, contrary to governing precedent, he has sought to have us consider and decide the appeal on new facts and new evidence that were not part of the trial record on appeal. Burbank's efforts have been disrespectful to the proper role of the trial court, unfair to and expensive for the other parties, and contrary to Maine appellate law. Burbank's frivolous and baseless actions are egregious conduct that has confused the issues on appeal, delayed final resolution of this matter, and significantly driven up the costs to other parties. Although the actions taken by Burbank would be concerning if he were a litigant unschooled in law, we note that Burbank is not only an attorney, but an attorney who is licensed to practice in Maine. He is therefore, presumed to be familiar with our case law, our statutes, and our Rules; his actions demonstrate either a complete lack of understanding or an intentional flouting of these guides.
Id.¶ 61.
Burbank's actions continue to be problematic. In his Answer to the within Information in this case, Burbank has admitted to making errors in applying and interpreting the applicable rules of court, but has asserted that some rules were not published, and thus he could not interpret or apply them; some rules were ambiguous; and his failure to file timely responses was due to his suffering a stroke. Burbank has failed to pay the $10,000 in sanctions imposed on him by the Law Court, nor has he fully paid the $20,000 judgment against him imposed by the Superior Court in the underlying litigation, and has since filed a Chapter 7 bankruptcy action in the Bankruptcy Court in Connecticut. Burbank also did not properly offer all the exhibits at this Bar Discipline Hearing that he made reference to in his post-hearing submission. In short, he does not appear to have a good grasp of the procedural rules of litigation.
Based on the findings and conclusions of the Law Court in Lincoln, in conjunction with the evidence presented at the hearing in this matter, this court finds and concludes that Burbank has violated the following Maine Rules of Professional Conduct.
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 3.1 Meritorious Claims and Contentions
(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a non-frivolous basis in law and fact for doing so, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
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(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
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Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another; [or]
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(d) engage in conduct that is prejudicial to the administration of justice.
Having found these violations of the Maine Rules of Professional Conduct, this court now addresses the appropriate sanction. Pursuant to M. Bar. R. 21(c), this court has considered the factors relevant to imposing sanctions.
There are many aggravating factors in this case. The misconduct at issue is very serious. Burbank's conduct in the underlying litigation, and especially in the appeal in Lincoln, has caused substantial injury to the parties involved in the litigation as well as a waste of judicial resources. Although this court does not find that all of Burbank's misconduct was deliberate, as a practicing attorney, he certainly should have known that his conduct was far afield from the standards expected of a reasonably competent attorney, and that his actions constituted misconduct.
There are some mitigating factors that the court feels compelled to consider. Burbank has no prior disciplinary record in Maine, he was under great stress due to his father's poor health, and he himself has suffered from a stroke and is not in good health. There is also evidence that Burbank provided competent legal representation in Maine in the past, namely, in the effort by Ralph Nader to be placed on the Maine ballot as a presidential candidate in the early 2000s.
The main purpose of imposing a sanction in these disciplinary proceedings is the protection of the public. The sanction to be imposed must be significant because of the serious misconduct that is involved here, and must require that Burbank file a petition for reinstatement in order for him to be reinstated as an attorney in good standing.
Accordingly, pursuant to M. Bar R. 13(g)(4), and 21(b)(6), Harold H. Burbank II is suspended from the practice of law in Maine for a period of twelve months. The suspension is effective immediately.
To be reinstated, Burbank must petition for reinstatement in accordance with M. Bar. R. 29.
Date: January 24, 2018
Robert W. Clifford
Active Retired Justice
Maine Supreme Judicial Court
1The Law Court imposed sanctions of $5,000 toward the neighbors' attorney fees to defend the appeal, and $5,000 toward the co-owners' attorney fees to defend the appeal.
Board of Overseers of the Bar v. Jon P. Plourde, Esq.
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Docket No.: BAR-17-9
Issued by: Maine Supreme Judicial Court
Date: February 1, 2018
Respondent: Jon P. Plourde, Esq.
Bar Number: 004772
Order: Suspended Suspension/Monitoring
Disposition/Conduct: Diligence, Communication, Candor Toward the Tribunal, Fairness to Opposing Party and Counsel, Misconduct, Dishonesty, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(g)
This attorney disciplinary matter was initiated by the July 12, 2017 submission of a Stipulated Waiver of Grievance Commission Proceedings, signed by the Board of Overseers of the Bar's Bar Counsel, J. Scott Davis, and counsel for Attorney Jon P. Plourde, James M. Bowie, Esq. In an order dated July 26, 2017, the Court permitted Bar Counsel to file a disciplinary Information with the Court. On September 21, 2017, that Information was filed, pursuant to M. Bar R. 13(g). Attorney Plourde's response was submitted on October 10, 2017.
Upon appropriate notice, the Court conducted a disciplinary proceeding on January 26, 2018. The Board of Overseers of the Bar was represented by Bar Counsel Davis, and Attorney Plourde appeared with Attorney Bowie.
In advance of this proceeding, the parties' counsel had submitted an agreed-upon proposed Order for the Court's review. That proposed Order set forth the relevant underlying facts and admitted misconduct committed by Attorney Plourde. In addition, without objection by Attorney Plourde, Board Exhibits 1-9 were admitted at the hearing. The Court also received two confidential psychotherapeutic evaluation reports and, after review, accepted each of the reports as sealed and impounded.
After reviewing the proposed Order, those exhibits and two reports, and after hearing from Attorney Plourde and from each attorney, the Court issues the following Order:
- Attorney Plourde, currently of Lewiston, Maine, was at all times relevant hereto an attorney duly admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules and to the Maine Rules of Professional Conduct.
- Attorney Plourde was first admitted to the Maine Bar in 2011 and, since that time, has engaged in private practice, initially in Presque Isle and most recently in Auburn, Maine. He has not engaged in the practice of law since March of 2017.
- In December of 2015, and throughout the time of the events giving rise to this action, Attorney Plourde was employed as an attorney at a law firm in Auburn.
- On December 4, 2015, Attorney Plourde filed an action in the York County Superior Court to collect money on a contract. On January 13, 2016, counsel for the defendant served Attorney Plourde with interrogatories and document requests.
- On February 15, 2016, defendant's counsel served Attorney Plourde with a Notice of Deposition of his client with an incorporated request for production of documents.
- On April 27, 2016, a Superior Court Justice issued a written order requiring Attorney Plourde to timely and correctly respond to the earlier discovery orders by June 1, 2016. Attorney Plourde failed to inform his client of that time-sensitive court order and also failed to comply with it.
- On May 12, 2016, defendant's counsel notified Attorney Plourde that the new date for his client's deposition was June 14, 2016.
- On June 8, 2016, defendant's counsel notified Attorney Plourde that, because Attorney Plourde's client had failed to comply with outstanding discovery requests, he was cancelling Plourde's client's deposition. As mentioned above, Attorney Plourde had never informed his client of the need for particular discovery responses, and never told his client of the deposition's cancellation.
- On June 14, 2016, Attorney Plourde and his client arrived for the deposition. For the first time, the client learned that the deposition had already been cancelled.
- On June 16, 2016, the court held a second discovery conference. At the conclusion of the conference, the court imposed a $250.00 sanction on Attorney Plourde for his failure to comply with the April 27, 2016 discovery order.
- On July 1, 2016, the court levied sanctions against Attorney Plourde's client totaling $2,276.56, to be paid "forthwith," to cover the defendant's attorney fees. Attorney Plourde did not tell his client about this sanction.
- On August 22, 2016, at a separate deposition, another attorney informed Attorney Plourde's client that a monetary sanction had been imposed on him by the court.
- On August 23, 2016, in a telephone call, Attorney Plourde told his client that the firm would consider paying the $2,276.56. In fact, however, the firm did not even know of the court sanction.
- On October 5, 2016, defendant's counsel filed a Motion to Show Cause regarding the unpaid sanction amounts. Attorney Plourde failed to inform his client of that motion, and failed to file any response to it.
- On October 6, 2016, for the first time, Attorney Plourde informed his firm's Management Committee of the sanctions imposed against him and his client, and requested that the firm pay all of those sanction amounts.
- On December 6, 2016, the firm's Management Committee approved payment of the $250.00 sanction imposed against Attorney Plourde, but declined to pay the sanction imposed against the client. Attorney Plourde never told his client that the firm had declined to pay the sanction imposed against him.
- On February 8, 2017, the court sent a Notice of Hearing to counsel, setting a hearing date of March 7, 2017, regarding defendant's counsel's motion to show cause. Attorney Plourde failed to timely notify his client of the hearing. The only notification he provided was an email sent at 6:58 a.m. on the same day of that hearing.
- On March 7, 2017, after conducting the show cause hearing, the court issued an order confirming that defendant's counsel intended to file a motion to dismiss due to Attorney Plourde's client's failure to comply with the earlier discovery order. On that same date, Attorney Plourde made misrepresentations to the court concerning the nature of that non-compliance and his related communications with his client.
- On March 7, 2017, the firm learned that Attorney Plourde had created falsely-dated letters that he had attached to his March 7, 2017 email to his client. After being confronted, Attorney Plourde admitted that he had created the false letters and had made the above-referenced misrepresentations to the court. The firm then took possession of Attorney Plourde's office keys, wiped his cell phone of any firm email, cut off his access to the firm's server (including any telephonic access), and removed him from the firm's office.
- On March 9, 2017, defendant's counsel filed a motion to dismiss based upon Attorney Plourde's continuing failure to comply with the court's discovery orders ( see Board Exhibit #4).
- This grievance matter was initiated by Attorney Plourde's self-report through his counsel, Attorney Bowie, of March 10, 2017 (see Board Exhibit #1) and his former firm's related complaint filing of March 16, 2017 (see Board Exhibit #2).
- On March 29, 2017, Attorney Plourde executed an affidavit ("Affidavit of Jon Plourde"), in which he agreed and confirmed that he had engaged in professional misconduct concerning his obligations to his client (see Board Exhibit #6).
- On August 29, 2017, the Superior Court issued an order denying the defendant's motion to dismiss in that underlying litigation (see Board Exhibit #3). In that order, Justice Douglas found that "Attorney Plourde's (above-described) actions raise serious questions about potential violations of his ethical obligations as an officer of the court and member of the bar." On that same date, the court filed its order and other related documents with the Board, stating that he believed he was required to do so by Rule 2.15 of the Maine Code of Judicial Conduct (Disciplinary Responsibilities).
Based on the facts set forth above, the Court finds and concludes that Attorney Plourde engaged in multiple violations of the applicable Maine Rules of Professional Conduct. Specifically, those Rules include M. R. Prof. Conduct 1.3 (diligence); l.4(a)(b) (communication); 3.3(a) (candor toward the tribunal); 3.4(c) (fairness to opposing party and counsel); and 8.4(a)(c)(d) (misconduct) (dishonesty) (conduct prejudicial to the administration of justice).
The Court looks to Maine Bar Rule 21(c) for direction on the proper factors to consider and analyze in the issuance of an appropriate disciplinary sanction. That rule states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer's misconduct; and
- the existence of any aggravating or mitigating factors.
In this matter, Attorney Plourde agrees that his misconduct violated important duties that he owed to his client, to the legal system-including the involved jurist and opposing counsel-and to the profession. There is also no dispute that he intentionally ignored Justice Douglas's discovery orders, including sanctions, and likewise intentionally failed to inform his client of important matters, including sanctions imposed against that client. The potential injury to that client was significant but, due to the willingness of Attorney Plourde's former colleagues to step in as the client's counsel and to make full payment of the $2,276.56 sanction imposed on the client, the actual injury to the client was minimal.
Finally, the existence of aggravating and mitigating factors must be reviewed and considered. There are two significant aggravating factors here. First, Attorney Plourde demonstrated dishonesty by failing to inform his client of significant court orders, including a monetary sanction that the court had issued against him, and by making misrepresentations to the court and to opposing counsel. Second, Attorney Plourde exhibited a pattern of misconduct by his continued noncompliance with the court's discovery orders.
In mitigation, Attorney Plourde has no prior disciplinary record, has been cooperative and remorseful throughout the processing of this matter, accepted full responsibility for his actions during the hearing, and is a relatively inexperienced lawyer.
After review of Attorney's Plourde's misconduct and the aggravating and mitigating circumstances discussed above, and with the agreement of the parties, the Court imposes the following sanction:
- Attorney Plourde is hereby suspended from the practice of law in Maine for two years.
- The order of suspension is effective retrospectively, to commence on March 8, 2017, the date he was immediately removed from practice at his former firm.
- The second year of that suspension (March 9, 2018 through March 8, 2019) is itself suspended, subject to the conditions of a separate Monitor Order that is hereby incorporated and included by reference.
- Because the second period of suspension is itself suspended, and because the Court is satisfied that he has met the criteria for reinstatement set forth in M. Bar R. 29(e), Attorney Plourde is reinstated to the practice of law, effective March 9, 2018, pursuant to M. Bar R. 29(a).
- Due to Attorney Plourde's removal from practice effective March 8, 2017, the Court is satisfied that the requirements of M. Bar R. 31 have been met, i.e., that Attorney Plourde has no current clients of any nature or any matters with opposing counsel to so notify of his suspension from practice. Nevertheless, the Court orders that Attorney Plourde shall file an affidavit with Bar Counsel within 30 days after the date of this Order confirming the absence of any current clients. See M. Bar R. 31(h).
Date: February 1, 2018
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Christopher G. Limberis
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Docket No.: BAR-18-1
Issued by: Maine Supreme Judicial Court
Date: February 15, 2018
Respondent: Christopher G. Limberis
Bar Number: 000946
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, Gregory P. Dorr, Esq., is appointed Receiver for final closing of the law practice of Christopher G. Limberis. Pursuant to this Order, Attorney Dorr shall:
- secure any professional files, client property, and client data of Attorney Limberis;
- inventory client files;
- prioritize client matters identified as open, active, and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client, or office accounts.
As a service to the bar, Attorney Dorr may serve as Receiver for Attorney Limberis?s law office on a pro bono basis. However, Attorney Dorr shall submit a semi-annual written report to the Court, copied to the Board?s Special Counsel, containing a record of time worked and disbursements made in this matter. The law office of Christopher G. Limberis shall be the first source of payment for disbursements and any legal fees (at the state court appointment rate) sought by the Receiver. If insufficient assets are available from the law office, the Board of Overseers may be an alternate payment source for expenses related to the law office closure.
Attorney Dorr shall act as Receiver until discharged by the Court in accordance with M. Bar R 32(c).
Attorney Dorr so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of the Court including any order under M. Bar R 32.
Attorney Dorr may be engaged by any former client of Attorney Limberis provided that the client is informed in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver?s employment by the client. Attorney Dorr is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. However, a client?s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of Attorney Dorr?s appointment by this Order. Attorney Dorr shall be protected from liability for professional services rendered in accordance with this Order to the extent permitted by law.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: February 15, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Eugene McLaughlin, Jr., Esq.
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Docket No.: GCF# 16-316
Issued by: Grievance Commission
Date: February 16, 2018
Respondent: Eugene McLaughlin, Jr., Esq.
Bar Number: 003748
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Competence, Conflict of Interest: Current Clients, Knowingly Disobey an obligation under the Rules of a Tribunal, Respect for Rights of Third Persons; Inadvertent Disclosures, Knowingly make a false statement of material fact, Misconduct
On January 25, 2018, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to M. Bar R. 13(e) concerning alleged misconduct by the Respondent, Eugene McLaughlin, Jr., Esq. The Panel members were Chair James M. McKenna III, Esq., Teresa M. Cloutier, Esq., and Public Member Margaret T. Clancey. The Board of Overseers of the Bar (the "Board") was represented by Assistant Bar Counsel Alan P. Kelley. The Respondent was present and represented by Leonard I. Sharon, Esq.
This proceeding was initiated by the filing of a Disciplinary Petition by the Board on March 24, 2017, alleging that the Respondent violated specific portions of the Maine Rules of Professional Conduct, including M. R. Prof. Conduct 1.1, 1.8(a), 3.4(c), 4.4(a), 8.l(a), and 8.4(a), (b), (c), and (d). Based upon the documentary and testimonial evidence admitted at the hearing, the Panel finds that there is probable cause for the Respondent's suspension or disbarment.
Pursuant to M. Bar R. 13(e)(10)(E), the Panel hereby directs Bar Counsel to file an Information with the Executive Clerk of the Court as set forth in M. Bar R. 13(g)(l).
Dated: February 16, 2018
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Margaret T. Clancey, Acting Public Member
Board of Overseers of the Bar v. Matthew J. Miller
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Docket No.: BAR-18-2
Issued by: Maine Supreme Judicial Court
Date: March 1, 2018
Respondent: Matthew J. Miller
Bar Number: 004097
Order: Immediate Interim Suspension
Disposition/Conduct: Immediate Interim Suspension
M. Bar R. 23
By an Information of February 16, 2018, pursuant to M. Bar R. 23 the Board of Overseers of the Bar's Bar Counsel has requested the interim suspension of former (now administratively suspended) attorney Matthew J. Miller. Mr. Miller was provided an opportunity to respond to the Board's filing and the Court has considered the record as thus far submitted by the parties.
As a result, based upon his plea of guilty and resulting federal conviction and judgment imposed upon him on December 19, 2017 for the serious crime of Accessing with Intent to View Child Pornography, an Order of Interim Suspension from the practice of law in Maine is now imposed upon Matthew J. Miller, effective immediately.
Dated: March 1, 2018
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Darla J. Mondou
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Docket No.: BAR-16-25
Issued by: Maine Supreme Judicial Court
Date: January 12, 2017
Respondent: Darla J. Mondou
Bar Number: 007675
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Darla J. Mondou has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel stipulates to Ms. Mondou's reinstatement pursuant to M. Bar R. 29(f)(1), subject to the Court's approval. The Court has reviewed Ms. Mondou's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Darla J. Mondou, Bar #007675, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: January 12, 2017
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Paul L. Letourneau
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Docket No.: BAR-16-17
Issued by: Maine Supreme Judicial Court
Date: March 23, 2018
Respondent: Paul L. Letourneau
Bar Number: 009544
Order: Order for Monitoring
Disposition/Conduct: Monitoring Order
The Court enters the following order by agreement of the parties:
- Starting on April 1, 2018 and continuing for a period of one (1) year, Paul L. Letourneau shall be monitored in his legal practice by Attorney David Coolidge. If Attorney Coolidge is unable to continue his service as Monitor, then that role shall be undertaken by a mutually agreed-upon third party or as otherwise selected and directed by the Court.
- Any costs or fees associated with the Monitor's supervision shall be borne by Mr. Letourneau.
- Mr. Letourneau will meet with the Monitor at the Monitor's calling and convenience on a bi-weekly basis, unless the Monitor subsequently determines that more or less frequent meetings are appropriate.
- The Monitor shall have the right to withdraw and terminate his services at any time for any reason he deems necessary or sufficient. If he intends to do so, the Monitor shall provide written notice to Bar Counsel three weeks in advance of such withdrawal, whereupon this matter may then be scheduled for further hearing as deemed appropriate by the Court.
- If any aspect of the monitoring process creates a situation that is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, the Monitor may adopt any one of the following courses with the proposed result:
a. Monitor ceases to act as the Monitor and a potential conflict is avoided.
b. Monitor continues to serve as the Monitor, but totally excludes Mr. Letoumeau's client's matter from the supervision process, so that no conflict is deemed to exist.
c. Monitor continues to serve as the Monitor, but withdraws from the conflicted matter. - The Monitor shall have the right to contact clerks of courts, judges, the MCILS, and/or opposing counsel to evaluate and confirm Mr. Letourneau's compliance with his professional obligations.
- If the Monitor determines that Mr. Letourneau should refrain from expanding his practice areas, the Monitor shall inform Mr. Letourneau of that fact. Mr. Letourneau shall then follow the Monitor's directive to refrain from or limit his acceptance of such cases, absent this Court's order to the contrary.
- The Monitor shall not initiate contact with any of Mr. Letourneau's clients. The Monitor's communications in the performance of his monitoring duties shall primarily be with Mr. Letourneau or other persons contemplated by this Order, including the Director of the Maine Assistance Program for Lawyers and Judges (MAP), and Bar Counsel's office. However, if any clients contact the Monitor with concerns about Mr. Letourneau's conduct, then they shall then be referred by the Monitor to Bar Counsel.
- The Monitor's participation in the disposition of Mr. Letourneau's disciplinary case and monitoring of Letourneau's practice shall be deemed not to create an attorney-client relationship between Mr. Letourneau and the Monitor or between the Monitor and Mr. Letourneau's clients. Specifically, the Monitor shall be deemed not to represent Mr. Letourneau or any of Mr. Letourneau's clients or to be employed by them in any capacity, and the Monitor shall not have any responsibility of any nature to any of them. Moreover, the attorney-client privilege shall not apply to the Monitor's supervision of Mr. Letourneau's practice, and the Monitor shall be immune from any civil liability (including without limitation, any liability for defamation) to Mr. Letourneau or any of Mr. Letourneau's clients.
- The Monitor shall have the authority to review and examine any of Mr. Letourneau's files, except those in which the Monitor might have adverse interests under paragraphs 4 or 5. In that event, the Monitor shall notify Bar Counsel who shall then develop an alternative means of file review.
- Mr. Letourneau shall prepare and present to the Monitor two weeks in advance of their first meeting a list of all his current clients, showing each client's pending matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Mr. Letourneau shall prepare and present that information to the Monitor at least one week in advance of the meeting.
- The Monitor will, as soon as practicable, have Mr. Letourneau establish a method of objectively identifying problematic or delinquent client matters and have Mr. Letourneau institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- As referenced in the Court's January 25, 2018, Amended Order, it is permitted and expected that Mr. Letourneau shall incorporate and use assistance from the Monitor as is deemed necessary and appropriate.
- The Monitor shall file a confidential report with the Court every three months or sooner if the Court deems it necessary. The Report shall be copied to counsel for Mr. Letourneau and Bar Counsel, and shall cover at least the following subjects:
a. A description of any client matter identified as delinquent or problematic;
b. A description of any matter wherein Mr. Letourneau was discharged by a client, court or agency due to perceived or actual professional misconduct;
c. Measures Mr. Letourneau has taken to avoid delinquencies or adverse court action;
d. Any professional assistance the Monitor has provided to Mr. Letourneau;
e. Mr. Letourneau's use of and appropriate monthly reconciliation of his IOLTA Account(s); and
f. A summary of relevant information provided by court staff and members of the bar, as referenced in ¶6. - The Monitor shall have the duty to file a written report with the Court, counsel for Mr. Letourneau, and Bar Counsel concerning any apparent or actual professional misconduct by Mr. Letourneau of which the Monitor becomes aware.
- The Monitor shall provide a written report to the Court, counsel for Mr. Letourneau, and Bar Counsel concerning any lack of cooperation by Mr. Letourneau with the terms of this Order.
- Mr. Letourneau shall refrain from all criminal conduct and shall report immediately any criminal charges to the Monitor, MAP and to Bar Counsel; he shall further so report any convictions arising out of criminal conduct in any jurisdiction.
- Mr. Letourneau shall report to the Monitor, MAP and Bar Counsel any matters in which he is the subject of any civil protection order, e.g., Protection from Harassment or Protection from Abuse.
- If he has not already done so, Mr. Letourneau shall designate a Maine attorney to serve as his proxy in the event of any future disability, pursuant to M. Bar R. 1(g)(12).
- Mr. Letourneau shall report to the Monitor any grievance complaints and disciplinary proceedings and/or sanctions against him to all jurisdictions where he is admitted.
- Mr. Letourneau shall timely comply with his required annual registration filings and continuing legal education requirements.
- Any verified and/or investigated complaints concerning conduct that allegedly occurred after January 12, 2018, which is the date of the Court's related Order and Decision, may form the basis for additional disciplinary filings directly before the Supreme Judicial Court under M. Bar R. 13(g).
- Mr. Letourneau's violation of any condition enumerated within this Order may result in the Board's filing a Petition to Terminate the suspended portion of his Suspension Sanction.
The clerk shall incorporate this order into the docket by reference.
Date: March 23, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott G. Adams, Esq.
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Docket No.: BAR-17-10
Issued by: Maine Supreme Judicial Court
Date: March 29, 2018
Respondent: Scott G. Adams, Esq.
Bar Number: 008019
Order: Order
Disposition/Conduct: Reprimand Decision Affirmed
Scott G. Adams, Esq. has petitioned, pursuant to Maine Bar Rule 13(f), for review of an order of a Grievance Commission panel determining that he violated several provisions of the Maine Rules of Professional Conduct and imposing the disposition of a public reprimand. On the petition, Attorney Adams challenges only the sanction. The parties have submitted the matter based on the record developed before the panel, see M. Bar R. 13(f)(3), (4), and oral argument was held at Attorney Adams' request. For the reasons stated in this order, I affirm the panel's decision.
The facts found by the panel are supported by the record and are at least nominally undisputed.1
Attorney Adams is admitted to the practice of law in Maine and maintains offices in East Boothbay and Newcastle. In early December 2014, Supreme Judicial Court Associate Justice Andrew M. Mead issued an order appointing two attorneys to serve as receivers for Attorney Richard Salewski. Justice Mead's order clearly stated that Salewski's client files, both open and closed, were confidential and that only the receivers were authorized to inventory the files.
Salewski died five days after Justice Mead issued the receivership order. Shortly thereafter, Attorney Adams called Attorney Hylie West, who was one of the receivers, and asked if West planned to create a list of Salewski's clients because Attorney Adams wanted to compare that list with a list of his own clients. West told Attorney Adams that a list of Salewski's clients would be confidential and would not be mailed to him.
Nearly a year later, in November 2015, Attorney Adams asked another attorney2 to contact West on his behalf and ask for a list of Salewski's clients. West told the attorney that the list was confidential-something Attorney Adams already knew from his earlier conversation with West-but that Attorney Adams could provide the receivers with a list of his own clients.
On January 11, 2016, Attorney Paul Chaiken, serving as Special Assistant Bar Counsel, sent an email to a number of area lawyers, including Attorney Adams, asking for assistance on January 13 in "clearing out" Salewski's files.3 Chaiken's email provided the location of the building in Damariscotta where the files were being stored. Attorney Adams received the email but did not participate in the effort on January 13. The next day, however, Attorney Adams was able to enter the building, which was secured and listed for sale (only West and the listing broker were in possession of the keys), because a client asked Attorney Adams to accompany him during a showing.
When Attorney Adams entered the building in the company of a realtor, he saw boxes of Salewski's client files and a document entitled, "Rick Salewski Files Requests." See Board Exhibit 11. The list had been prepared by the receivers. It was six pages long and contained 93 entries with corresponding notations of "Clients have all or some," and "Clients Notified-Still Looking." Some of the itemized entries are annotated with information about the legal matter involving that client, with references to such issues as estate planning, wills, and title matters.
When Attorney Adams saw the document, he told the realtor that he had been trying to obtain a list of Salewski's clients for a long time and would like to take that one. The realtor told Attorney Adams the self-evident point that items of personal property are not to be removed during showings. Nonetheless, within 20 minutes of entering the building, and when no one else was around, Attorney Adams took the list and returned to one of his offices.
He did not tell the realtor or West what he had done. Instead, on January 19-the Tuesday after a three-day holiday weekend-West discovered that the list was missing. After contacting the realtor, West came to believe that Attorney Adams had taken it. West notified Chaiken and Deputy Bar Counsel Aria Eee, and they promptly called Attorney Adams. During the resulting conversation, Attorney Adams eventually admitted that he had taken the list. He stated that he knew the list was confidential, that he did not have a proprietary interest in it, and that he knew that he was not entitled to take it. He agreed to return the list immediately, and the next day he mailed the list to West but only after making an electronic copy, which he gave to the attorney representing him in this proceeding. The office manager in Attorney Adams' office has also seen the client list, but no one else has, according to him. Later, in two communications made in February of 2016, Assistant Bar Counsel Alan P. Kelley directed Attorney Adams to destroy any copy of the list, but Attorney Adams refused to do so, having given the electronic copy to his attorney.
The day after Attorney Adams' telephone call with Chaiken and Eee, Kelley filed a complaint against Attorney Adams. A panel of the Grievance Commission held a two-day hearing in May 2017. See M. Bar R. 13(e)(7). In a written decision issued the following month, the panel issued the findings of fact noted above and concluded that, by intentionally taking Salewski's client list without any permission or authority, Attorney Adams had violated Rule 4.4(b), and Rule 8.4(c) and (d) of the Maine Rules of Professional Conduct. The panel imposed the sanction of a public reprimand, which is a disciplinary sanction. See M. Bar R. 21(b)(5). Attorney Adams filed a petition for review by a Single Justice of the Supreme Judicial Court, see M. Bar R.13(f)(1), and by order of the Chief Justice, I was assigned to serve as the Single Justice in this proceeding.
Attorney Adams does not contest the panel's conclusion that he violated the Maine Rules of Professional Conduct. Instead, he challenges only the panel's imposition of a reprimand as a sanction for his misconduct. As he also asserted to the panel, he contends here that the appropriate disposition is an admonition pursuant to Maine Bar Rule 21(b)(1).
Because Attorney Adams' petition for review was not accompanied by a motion for a trial of the facts, my review of the panel's decision is based on the record of the panel proceeding. See M. Bar R. 13(f)(4). The panel's findings of fact are entitled to deferential consideration because they cannot be set aside unless clearly erroneous, see id., which they are not. Rule 13(f)(4) does not prescribe the standard of review applicable to the sanction itself. I need not address that issue, however, because pursuant to Rule 21(b)(1), an admonition is not a sanction that can be imposed here against Attorney Adams, given the nature of his conduct that violated the Code of Professional Responsibility.
Maine Bar Rule 21(b) enumerates the types of sanctions that may be imposed based on attorney misconduct. Those sanctions include admonitions and reprimands. Id.
Rule 21(b)(l) describes an admonition as "a public non-disciplinary sanction" that can "be imposed only in cases of minor misconduct, where there is little or no injury to a client, the public, the legal system, or the profession, and where there is little likelihood of repetition by the lawyer." (Emphases added.) The three circumstances authorizing imposition of an admonition are framed in the conjunctive, so that each must be present to permit an admonition.
Rule 21(b)(5) addresses reprimands and describes it as a "public disciplinary sanction."
Here, the panel concluded that Attorney Adams violated two rules governing attorney conduct. The first is Rule of Professional Conduct 4.4(b), which is entitled "RESPECT FOR RIGHTS OF THIRD PERSONS; INADVERTENT DISCLOSURES" and provides in relevant part:
A lawyer who receives a writing and has reasonable cause to believe the writing may have been inadvertently disclosed and contain confidential information or be subject to a claim of privilege ...
1. shall not read the writing or, if he or she has begun to do so, shall stop reading the writing;
2. shall notify the sender of the receipt of the writing; and
3. shall promptly return, destroy or sequester the specified information and any copies.
Id. (emphasis added).
Attorney Adams did not "inadvertently" acquire Salewski's client list. Rather, it was a document he had wanted to obtain for more than a year, and he took it with full knowledge that doing so was wrongful because, at the very least, it violated the code of ethical conduct imposed on-and expected of attorneys licensed to practice in Maine. The panel concluded that the obligations imposed on an attorney who obtains confidential or privileged information in the circumstances presented here are the same as when an attorney acquires that type of information in more benign circumstances, and Attorney Adams does not contest the panel's application of Rule 4.4(b) to this case. Attorney Adams did not respond as the Rule required-he did not take steps to notify the person who was authorized to possess the document, namely, either of the receivers, that he had it, and he did not promptly return, destroy or sequester the information. Instead of Attorney Adams taking the initiative, members of Bar Counsel's office had to contact him about the matter when they determined that he likely had taken the document. And although Attorney Adams mailed the physical list to West the next day, he made an electronic copy, which at some point he provided to his own attorney.
The more significant of the breaches determined by the panel was of Rule 8.4. The aspects of that Rule that Attorney Adams violated provide:
It is professional misconduct for a lawyer to:
?
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
Id.
The record supports the panel's conclusion that Attorney Adams engaged in these forms of misconduct, a conclusion he does not challenge. Attorney Adams engaged in dishonest conduct by taking the client list fully knowing what it was and fully knowing that he did not have any authority to take it.4 Further, by wrongfully taking sensitive information without the knowledge and consent of those who had sought Salewski's legal counsel, Attorney Adams engaged in conduct that prejudiced the administration of justice.
The remaining question is whether the nature of Attorney Adams' misconduct leaves any room for an admonition to be imposed as a sanction. As is noted above, three conditions must be present for a panel or a Single Justice to have the authority to impose an admonition. See M. Bar R. 21(b)(1). In my view, two of those three conditions do not exist here.
First, Attorney Adams' misconduct was not "minor." He took a document that, as he knew, contained some sensitive legal information. He had previously attempted to obtain that very type of document but was clearly informed by a person in authority, namely, Salewsi's receiver, that the information he sought was confidential and that he could not have it. Attorney Adams did not orchestrate the circumstances that put him in the presence of the client list during the showing, because he was in the building at the request of a third person. Once he was there, however, and saw what was obviously the client list, he remarked to the realtor how he had wanted to obtain that information, and sometime shortly after, when no one was present to see, he took the list. This act was not substantially premeditated, but it was not spontaneous. And these factors demonstrate that it was not minor.
Second, Attorney Adams' acquisition of the client list resulted in more than "little or no injury to a client, the public, the legal system, or the profession .... " See M. Bar R. 21(b)(1). As the panel correctly found, he engaged in an act of significant dishonesty within the context of his professional pursuits. This by itself resulted in material damage to the legal profession. Further, the act of taking another lawyer's client list does damage to those clients. For some of the entries on the client list, there are references to the nature of the legal work that brought those clients to Salewski. As the panel correctly noted, absent some exception to the requirement of confidentiality, that information is entitled to be treated as "a confidence or secret" that had been entrusted to Salewski. See M.R. Prof. Conduct 1.6. Further, in some circumstances, even the fact of an attorney-client relationship can be a "confidence or secret." See In re Grand Jury Subpoenas, 906 F.2d 1485, 1488-93 (10th Cir. 1990); United States v. Saccoccia, 898 F. Supp. 53, 58 (D. R.I. 1995) (discussing the "legal advice" exception to the general rule that the identity of a client is not confidential, and stating that the exception applies when "the threat of disclosure would deter the client from communicating information necessary to obtain informed legal advice"); see also In re Advisory Opinion No. 544 of N.J. Sup. Ct. Advisory Comm'n on Prof'[ Ethics, 511 A.2d 609, 614 (N.J. 1986). Therefore, Attorney Adams' unauthorized acquisition of even the limited information contained in the client lists cannot be taken lightly.
I recognize that several lawyers had access to this information-and more-as they assisted the receivers and representatives of the Board of Overseers in organizing and disposing of Salewski's client files. Justice Mead's order appointing the receivers, however, explicitly stated that the receivers "shall not disclose any information contained in any file listed in the inventory" absent the client's consent or as necessary for the receivers to carry out their duties. See Board Exhibit 3 (emphasis added). Further, West testified that the attorneys who volunteered to assist him with the boxes of files worked under his direction as receiver; that none of those attorneys was authorized to take any files unless that attorney also represented the person associated with any such file; and that although the assisting attorneys used the client list while organizing the files, none of them could copy the client list or take it off site. Attorney Adams, on the other hand, acted on his own and without the supervision or authority prescribed in Justice Mead's order appointing the receivers.
Given these circumstances, and even without clear evidence of Attorney Adams' motive for taking the client list, the availability of an admonition for his misconduct is foreclosed because not all of the conditions necessary for that sanction are present. Further, even when the nature of the conduct underlying the violations is viewed without the restrictive language found in Bar Rule 21(b)(l), I conclude that the non-disciplinary disposition of an admonition is not a sufficient response and that a reprimand is the appropriate result.
For those reasons, I affirm the decision of the Grievance Commission panel.
The entry is:
Decision of the Grievance Commission panel affirmed.
Dated: March 29, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
1Although in his brief and at oral argument, Attorney Adams stated that he does not dispute the facts as found by the panel, it is not entirely clear that this correctly characterizes his position on this appeal. He contests the disposition imposed by the panel, but, as I discuss below, the sanction is directly determined by the facts of the case. Therefore, a discussion of the salient facts and the application of those facts to sanctions that can be imposed in attorney discipline cases is material to my analysis.
2Although not specified in the panel's decision, the record indicates that the attorney was an associate in Attorney Adams' office. See Tr. 208; Board Exhibit 4 at 1.
3 Although not specifically addressed among the panel's findings, West testified that by January 13, quite a few of the boxes containing Salewski's client's files had been processed, leaving only the remaining ones that still needed work. See Tr. 83-84.
4At oral argument, the Board contended that one of the reasons why the panel concluded that Attorney Adams violated Rule 8.4 of the Maine Rules of Professional Conduct was that the panel found parts of his testimony to be "disingenuous." I am not persuaded by that reading of the panel's decision. The Disciplinary Petition filed against Attorney Adams alleged a violation of that Rule based on his act of taking Salewski's client list. Obviously, the Petition could not have foreseen any finding by a panel that Attorney's Adams' attempts to justify his conduct were not credible. Instead, in my view, the better reading of this part of the panel's findings, consistent with the Petition itself, is that it found that Attorney Adams acted dishonestly when he took the client list.
Board of Overseers of the Bar v. Matthew W. Howell, Esq.
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Docket No.: GCF# 17-270
Issued by: Grievance Commission
Date: April 10, 2018
Respondent: Matthew W. Howell, Esq.
Bar Number: 004086
Order: Admonition
Disposition/Conduct: Fairness to Opposing Party and Counsel, Misrepresentations, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On April 10, 2018, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning a claim of misconduct by the Respondent, Matthew W. Howell, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on December 8, 2017.
At the hearing, Attorney Howell was represented by his counsel, Attorney Carol I. Eisenberg, and the Board was represented by its Bar Counsel, J. Scott Davis.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for GC Panel B?s review and consideration. The complainant, Stacey A. Durocher, had been provided with a copy of the parties? proposed Stipulated Report. Mr. Durocher was present at that proceeding and allowed an opportunity to provide comment to the Panel. Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Matthew W. Howell, Esq. of York, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Howell was admitted to the Maine Bar in 2007 and he is currently practicing in a two-lawyer firm.
Stacey A. Durocher of North Berwick, Maine filed a grievance complaint against Attorney Howell on July 5, 2017. Attorney Howell filed his initial written response thereto on or about July 28, 2017.
During the course of the Board?s investigation, Complainant Durocher and Attorney Howell were afforded respective opportunities for rebuttal and supplemental responses, resulting in a complete investigation pursuant to M. Bar R. 2(b)(2) and 13(b).
Complainant Durocher?s grievance concerned a civil lawsuit he had filed against Brandon Perry for allegedly failing to correctly complete construction work on Durocher?s house.
Attorney Howell was legal counsel for Perry (and his company) in that litigation which was tried before an arbitrator on June 2, 2017.
The focus of Durocher?s grievance complaint concerned an incorrect statement of acquaintance with a witness made by Attorney Howell to Complainant Durocher during the course of Attorney Howell?s cross examination of him at the arbitration. Attorney Howell admits this statement was made to signal to Durocher that his testimony could be verified. Howell?s acquaintance with the witness was not a material issue in the arbitration and the statement appears to have had no effect on the outcome.
The arbitrator found in Perry?s favor, ordering Durocher to pay him $9,000.00.
Although Attorney Howell?s acquaintance with the witness was not a material fact and Attorney Howell?s conduct at issue had no critical bearing in the arbitrator?s decision, Attorney Howell now agrees that his conduct had the danger of providing false and misleading information in violation of M. R. Prof. Conduct 3.4(e) (fairness to opposing party and counsel) and 8.4(c)(d) (misrepresentations and conduct prejudicial to the administration of justice). He regrets the incident and provided assurance to the Panel that he will not repeat this or similar conduct.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. The panel notes that Attorney Howell has taken responsibility for his transgressions and there is little likelihood of repetition by him. The panel also notes that his conduct caused little or no injury to a client, the public, the legal system, or the profession. At the disciplinary hearing, Attorney Howell expressed his remorse.
Since the evidence supports a finding and Attorney Howell agrees that he did in fact violate those above-referenced portions of the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. In that regard, under the required procedures of M. Bar R. 13(e)(6)(8), the Panel considered the existence or absence of any prior sanction record. Accordingly, upon that analysis for imposing a proper sanction concerning the many factors under M. Bar R. 21(c), including its finding of the presence of all the required prerequisites under M. Bar. R. 21(b)(1), the Panel finds that a public NON-DISCIPLINARY ADMONITION issued against Attorney Howell under M. Bar R. 21(b)(1) is the appropriate sanction.
Therefore, the Panel accepts the agreement of the parties, including Attorney Howell?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an ADMONITION to Matthew W. Howell, Esq. which is now hereby issued pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: April 10, 2018
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
Michael W. Arthur, LCPC, Public Member
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-18-4
Issued by: Maine Supreme Judicial Court
Date: April 30, 2018
Respondent: Seth T. Carey
Bar Number: 009970
Order: Immediate Interim Suspension
Disposition/Conduct: Prohibiting Unlawful Conduct, Conduct Prejudicial to the Administration of Justice
M. Bar R. 24
- By filing dated April 10, 2017, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order of Interim Suspension of Seth T. Carey from the practice of law in the State of Maine. This was accompanied by an affidavit of Bar Counsel with related exhibits, including the March 30, 2018 Order for Protection from Abuse issued by the District Court in RUMDC-PA-2018-20.
- Attorney Carey submitted an unsworn response to the petition, captioned as a motion to dismiss and attaching several exhibits including a motion for reconsideration that he filed in the Rumford PA action. Oral argument on the Board's petition for an immediate interim suspension was held on April 19, 2018.
- Based upon the Board submissions and the Court's review of the audio recording of the March 30, 2018 PA hearing and copies of the exhibits admitted at that hearing, the Court concludes that the evidence supports a finding that Attorney Carey has committed violations of the Maine Rules of Professional Conduct. At this preliminary phase of the proceedings, the Court finds that the Board's evidence sufficiently demonstrates Attorney Carey's violations of M. R. Prof. Conduct 8.4(b) and (d) - prohibiting unlawful conduct and conduct prejudicial to the administration of justice - to warrant an immediate interim suspension under Me. Bar R. 24.
- Specifically, the testimony at the PA hearing, found credible by the District Court, supports a finding that Attorney Carey subjected the complainant - a person whom he had formerly represented - to conduct that would constitute unlawful sexual contact under 17-A M.R.S. §§ 255-A(l)(A) and 251(1)(D). The testimony also supports the District Court's finding that on another occasion Attorney Carey grabbed the complainant's head and thrust it toward his crotch while demanding oral sex. This latter conduct would at a minimum constitute an assault under 17-A M.R.S. § 207(l)(A).
- Attorney Carey's rebuttal to the Board's petition basically consists of the same arguments he presented to the District Court. In his testimony at the PA hearing Attorney Carey offered only a very general denial of the complainant's testimony with respect to the conduct referred to above. He emphasizes that there is evidence that the filing of the protection from abuse complaint followed his threat to evict the complainant from his Rumford residence. However, various emails and texts in the record substantiate that Attorney Carey was seeking to have the complainant engage in sexual activity with him and that she had refused. See Plaintiff's Exhibit A and Defendant's Exhibits 18, 28, and 29 in the PA action; Exhibit A to the motion to reconsider filed by Attorney Carey in the PA action. By Attorney Carey's own admission in an email, his eviction threat was based in part on the complainant's refusal of his sexual advances. Defendant's Exhibit 18. This evidence supports the complainant's testimony.
- Under the facts presented by the Board, including those previously found by the Maine District Court, the Court concludes that Attorney Carey's misconduct is sufficiently serious to constitute a threat to clients, to the public, and to the administration of justice. This is true based on the evidence submitted with the Board's petition and based on Attorney Carey's disciplinary record.
- In a prior disciplinary proceeding, Docket No. BAR-16-15, Attorney Carey received a two year-suspension. That suspension was itself suspended to allow Attorney Carey to continue practicing law so long as he abided by certain conditions. The conduct for which the Board seeks an immediate interim suspension would constitute a violation of those conditions, and the Board is simultaneously seeking to terminate the suspension of the prior discipline and impose the two-year suspension in Docket No. BAR-16-15.
- Accordingly, pursuant to M. Bar R. 24, the Court ORDERS that Attorney Seth T. Carey shall now be suspended from the practice of law in Maine, effective this date until further order of this court. The Court further ORDERS that Attorney Carey shall immediately cease all operations of any and all of his websites, any Facebook account(s) relating or referring to his practice as a lawyer, and any other form of advertising of his legal services during the period of this suspension.
- Under separate order the Court is prepared to appoint a Receiver to protect the interests of Attorney Carey's clients and understands that the Board will submit a proposed order.
- A full hearing on the allegations in the petition shall promptly be scheduled and shall be consolidated with a hearing on the Board's petition in Docket No. BAR-16-15 to terminate the suspension of the discipline imposed on Attorney Carey in that proceeding.
Dated: April 30, 2018
Thomas D. Warren
Justice, Superior Court
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-18-4
Issued by: Maine Supreme Judicial Court
Date: May 4, 2018
Respondent: Seth T. Carey
Bar Number: 009970
Order: Order
Disposition/Conduct: Order
On May 2, 2018 the court learned that Attorney Carey had advised Bar Counsel and the Clerk's office by email that he would be filing a motion "asap" for dissolution of the order of immediate interim suspension, a motion to stay the suspension, and a motion to recuse.
The issue of recusal is a threshold issue that needs to be resolved before matters can proceed. In addition, Bar Rule 24(d) provides that on two days' notice to Bar Counsel, a suspended lawyer may move to dissolve an interim suspension. Because the court is not going to be available between May 7 and May 18, the court issued an order scheduling a hearing for May 4 at 11 am.
In a subsequent email on May 2 Attorney Carey responded that this was "not acceptable to respondent" because he was requesting action by a different judge, not the judge who issued the prior ruling.
After a telephone call on May 3 in which Attorney Carey was told that the hearing was still scheduled, he sent an email stating, "There will not be a hearing tomorrow in front of the same judge who abused his discretion." Later on May 3 Attorney Carey emailed a copy of a motion to dissolve and for stay of temporary suspension, including motions for recusal, for a change of venue, to reschedule the dissolution hearing, and an objection to receivership.1
On May 4 at 9:41am Attorney Carey sent an email to the clerk's office stating, "I assume the hearing is postponed." The Clerk's office emailed back 12 minutes later stating that the hearing was still scheduled for 11 am. At 10:35 am Attorney Carey emailed back that he could participate by phone. At 10:47 am Attorney Carey emailed a motion to continue the hearing. He emailed again at 10:57 am stating that he had tried to call but could not get through because of Administrative Week.
Attorney Carey did not attend the 11 am hearing. Bar Counsel was present. Although Attorney Carey had not been given advance permission to participate by phone, the court tried to call him from the courtroom but only reached his answering machine. The court then stated that it would review Attorney Carey's motion to recuse and his other motions and would issue a written order.
In his motion to continue, emailed less than 15 minutes before the hearing, Attorney Carey states that he did not get proper notice or due process and further states that a hearing is not necessary on his motion to recuse. Nowhere in his emails or in his motion to continue is there any suggestion that Attorney Carey could not have attended the hearing. The appropriate method to present his objections to the hearing would have been to appear at the hearing.
A litigant cannot decide on his own motion that the scheduling of a hearing "is not acceptable to respondent" or that "there will not be a hearing tomorrow in front of the same judge," as stated in Attorney Carey's emails.2 Waiting until 13 minutes before the hearing to email a request for a continuance - in the absence of an unexpected emergency and when the opposing party has appeared - is not appropriate. Attorney Carey's motion for a continuance is denied.
As noted above, Attorney Carey did not seek advance permission to appear by telephone. Today's hearing was not suitable for telephone participation. The difficulty Attorney Carey apparently experienced in reaching the court and the difficulty the court experienced in attempting to reach him demonstrates other problems with telephonic attendance.3
The court has reviewed Attorney Carey's motion to recuse. On that motion, as noted above, Attorney Carey's motion to continue states that no hearing is necessary. The motion to recuse is denied. The undersigned does not have a personal bias or prejudice regarding Attorney Carey and knows of no reason why the undersigned's impartiality can reasonably be questioned. As far as the court can tell, Attorney Carey's recusal motion is based almost entirely on his disagreement with the court's interim suspension order and his claim that no unbiased judge could have issued that order.4 A litigant's unhappiness with a judge's ruling is not a basis for recusal.
Attorney Carey's motion to dissolve the interim suspension on two days' notice is denied. A full hearing will be scheduled, and depending on the outcome of further proceedings, there may be grounds to dissolve the interim suspension or to deny the relief sought by the Board in its entirety, but at this time the court adheres to its April 30 order imposing an immediate interim suspension. The interim suspension will not be stayed because the rationale for an immediate interim suspension is that the Board has presented a sufficiently strong case that an immediate suspension is necessary.
The court has considered Attorney Carey's objections to a receiver and his suggestion of an alternate receiver, However, it will enter a receivership order appointing Margot Joly, Esq. as sought by the Board.
The court will schedule a prehearing conference on the record on May 21. At or before that time Attorney Carey shall submit a list of his proposed witnesses and proposed exhibits and shall be prepared to submit an oral offer of proof as to the testimony of those witnesses and why that testimony would be admissible.5 Bar Counsel shall also submit a list of proposed witnesses and exhibits and be prepared to submit an oral offer of proof if relevancy or admissibility is challenged.
The pretrial conference, at which personal attendance is required, shall be held at the Cumberland Courthouse. At that time, the court will consider Attorney Carey's request for a change of venue and will set a schedule for future events. The court does not rule out proceeding to a final hearing later in the week of May 21 if that is feasible.
If the Board is seeking any discipline beyond the imposition of the two year suspension in BAR 16-15 or if the Board contends that it has any other grounds for seeking discipline beyond those stated in the Petition for Immediate Interim Suspension, the Board shall file an Information setting forth the discipline requested and the grounds on which discipline is sought.
Attorney Carey's motion to continue suggests that he believes that he needs to retain counsel. He has every right to counsel and would be well-advised to obtain counsel. If counsel is to be retained, that should happen as soon as possible to prevent delays.
Dated: May 4, 2018
Thomas D. Warren
Justice, Superior Court
1That motion was received by mail and filed May 4.
2This would be the equivalent of allowing a litigant to decide his own motion to recuse.
3To avoid any misunderstandings in the future, all future court-scheduled events in this case shall be attended in person.
4In addition, Attorney Carey contends that the undersigned might have been influenced by the fact that Attorney Carey is suing Justice Walker. However, the undersigned did not know that such a suit was pending until it was mentioned in Attorney Carey's motion to recuse.
5The court understands that in one of his emails, Attorney Carey suggested that he intended to call more than 100 witnesses.
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-18-4
Issued by: Maine Supreme Judicial Court
Date: May 4, 2018
Respondent: Seth T. Carey
Bar Number: 009970
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Pursuant to M. Bar R. 32 and the Court's April 30 order imposing an immediate interim suspension, the Court orders as follows:
Effective immediately, Margot Joly, Esq., is appointed as the Receiver of Seth T. Carey's law practice. As such Attorney Joly shall have the sole authority to:
- Secure the professional files, client funds and other property of the Carey law office;
- Obtain signatory authority over all Carey law office bank accounts (IOLT A and operating/office accounts);
- Obtain access to Attorney Carey's computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and if necessary, the closed client files;
- Give priority attention to client matters which are open and time sensitive;
- Notify all courts that Attorney Joly is serving as Attorney Carey's Receiver until further order of this Court;
- Notify clients or former clients that Attorney Joly is serving as Receiver to the Carey law practice and provide opportunity for clients to consult with the Receiver or retrieve their property; and
- Attorney Joly as Receiver shall access and utilize Attorney Carey's operating and IOLTA accounts to prudently and appropriately manage the practice. As Receiver, Attorney Joly may pay expenses, as she deems appropriate given available funds or anticipated receivables to the firm. She may also hire temporary office staff and take other action as necessary and appropriate to manage the Carey law practice.
- As opposed to the Receiver appointed by the Court, no person designated by Attorney Carey, including his father, as a receiver shall have any authority to perform any of the actions listed above, and any person designated as receiver by Attorney Carey shall yield any files, funds, keys, or other property of the Carey law office (including but not limited to computers used in the Carey law practice) to Attorney Joly as the court appointed Receiver.
As a service to the bar, Attorney Joly acknowledges that she shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) at six month intervals or at the termination of the Receivership from Attorney Carey's law practice, she may be reimbursed from those assets. Attorney Joly as Receiver shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, Attorney Joly as Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Attorney Carey and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Carey, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Joly shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32.
Attorney Joly so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
Furthermore, Attorney Joly may be engaged by any former client of Attorney Carey provided that she informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend Attorney Joly's employment by the client.
Attorney Joly as Receiver is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8 and 1.9 regarding conflicts of interest. A client's retention of Attorney Joly as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Joly shall be protected from liability for professional services rendered in accordance with this Order.
Attorney Carey shall not interfere with Attorney Joly as Receiver and shall cooperate with the Receiver in providing any requested information necessary for Attorney Joly as Receiver to perform the duties set forth in this order.
On or before May 21, 2018 Attorney Joly as Receiver shall if possible file a summary interim report with this Court setting forth - based on the information then available - the number of Attorney Carey's current clients, whether those clients have matters currently pending before any court or tribunal, and whether Attorney Joly has experienced any difficulties or attempted interference by Attorney Carey with Attorney Joly's assumption of the duties set forth in this Order.
Finally, within one-hundred and twenty (120) days of this Order, Attorney Joly as Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Special Bar Counsel Angela Morse, Esq. If the Receivership should terminate earlier for any reason, Attorney Joly as Receiver shall file a final report within 30 days of the termination.
Dated: May 4, 2018
Thomas D. Warren
Justice, Superior Court
Board of Overseers of the Bar v. William B. Gillespie, Esq.
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Docket No.: GCF# 16-448
Issued by: Grievance Commission
Date: May 9, 2018
Respondent: William B. Gillespie, Esq.
Bar Number: 009881
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Failure to return Client's Property, Declining or Terminating Representation, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On May 9, 2018, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, William B. Gillespie, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 18, 2017.
At the hearing, Attorney Gillespie was represented by his counsel, Attorney James M. Bowie, and the Board was represented by Bar Counsel J. Scott Davis.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for Panel D?s review and consideration. The complainant, Joseph P. Michaud, had been provided with a copy of the parties? proposed Stipulated Report and was present at that proceeding.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent William B. Gillespie, Esq. of Topsham, Maine, has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Gillespie was admitted to the Maine Bar in 2005 and he is currently a solo practitioner.
On December 12, 2017, Joseph P. Michaud filed a grievance complaint against Attorney Gillespie, who filed his initial response on February 4, 2017.
During the course of the Board?s investigation, Michaud and Attorney Gillespie were afforded respective opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
As a result, on or about June 13, 2017, a panel of the Grievance Commission reviewed Attorney Gillespie?s actions in this matter and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
This complaint involves Attorney Gillespie?s significant neglect and repeated failures to communicate with any proper responses to the requests from his client, Complainant Michaud, regarding the status of the probate of the Estate of Louise Prescott, Michaud?s mother.
Michaud first met with and hired Attorney Gillespie on September 18, 2012 and completed payment of the fee balance on October 1, 2012. The total initial fee that Michaud paid Attorney Gillespie was $1,000.00.
In that regard, Michaud desired to have his sister, Shelia Carter (the initial and then current Personal Representative (PR) of their mother?s estate), removed as that PR. Accordingly, in late March 2013, Attorney Gillespie took action resulting in the Kennebec County Probate Court?s issuance of a ?Temporary Restraining Order Without Notice? that effectively started the removal of Carter from that PR status and function. By Kennebec County Probate Judge James Mitchell?s Order of May 23, 2013, Michaud was then appointed as the new successor replacement PR.
Thereafter, however, Michaud became dissatisfied with the lack of any proper effort or action(s) put forth by Attorney Gillespie regarding the pursuit of Michaud?s legal probate interests in the Estate of Prescott. As a result, by his writing of November 18, 2016, Michaud terminated his legal relationship with Attorney Gillespie for the following stated reasons:
- After some ?50 months? of service as Michaud?s attorney, ?little documentation or explanation has been given and little has been done on behalf of the estates (sic) interest?;
- Attorney Gillespie seemed ??to be preoccupied, unavailable, or unable to represent (Michaud) or the estate in this probate matter?; and
- Michaud?s many requests for Attorney Gillespie to provide and return his client file were ignored by him.
By Bar Counsel?s letter of February 22, 2017, Attorney Gillespie was specifically requested to provide Michaud?s client file to Bar Counsel. Attorney Gillespie did so on March 10, 2017, resulting in the office of Bar Counsel hand-delivering copies of that entire file on that same date to Michaud.
When that occurred, Michaud was directed to review several documents therefrom and to confirm to Bar Counsel whether he had ever earlier seen or received all such documents on a timely basis from Attorney Gillespie.
As a result, Michaud then confirmed that he had never earlier been provided by Attorney Gillespie with several important documents.
In addition, Michaud claimed to Bar Counsel that several text messages he had with Attorney Gillespie from his iPhone were, for the most part, either ignored or at least never answered or replied to by Attorney Gillespie.
The Kennebec County Probate Court?s Docket Record for the Estate of Louise Prescott, Docket No. 2007-0319-1, confirms that the most significant and relevant events to Michaud?s grievance complaint occurring subsequent to Judge James Mitchell?s Order of March 25, 2013, are as follows:
Attorney Gillespie?s only substantive response letter dated February 4, 2017 then accepted very little responsibility for his actions, or lack thereof, in the handling of Michaud?s probate matter. Attorney Gillespie now agrees, however, that his lack of communication and his attention deficiencies in the handling of Michaud?s probate matter were in violation of the Maine Rules of Professional Conduct.
Based on the facts set forth above, Attorney Gillespie admits that he engaged in violation of the applicable Maine Rules of Professional Conduct as detailed below. Specifically, those rules include M. R. of Prof. Conduct 1.3 (diligence); 1.4(a) (communication); 1.15(f) (failure to return client?s property); 1.16(d) (declining or terminating representation); and 8.4(a)(d) (conduct prejudicial to the administration of justice).
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. The panel has been informed that Attorney Gillespie has no disciplinary sanction record on file with the Board. The panel further notes that Attorney Gillespie has taken responsibility for his transgressions, and at the disciplinary hearing he expressed his remorse for his serious violations of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Gillespie agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, upon that analysis for imposing a proper sanction under M. Bar R. 21(c), the Panel finds that a Reprimand is the appropriate sanction to be issued against Attorney Gillespie under M. Bar R. 21(b)(5).
Therefore, the Panel accepts the agreement of the parties, including Attorney Gillespie?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a REPRIMAND to William B. Gillespie, Esq., which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: May 9, 2018
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. William S. Maddox, Esq.
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Docket No.: GCF# 17-109
Issued by: Grievance Commission
Date: May 9, 2018
Respondent: William S. Maddox, Esq.
Bar Number: 007177
Order: Admonition
Disposition/Conduct: Diligence, Communication
M. Bar R. 13(e)
On May 9, 2018, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, William S. Maddox, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 28, 2017.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Maddox appeared and was represented by his legal counsel, Attorney George T. Dilworth.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted to the Clerk for this Panel?s review and consideration. The complainant, Donald E. Payson III, had been provided with a copy of the parties? proposed Stipulated Report prior to the hearing date. He was present at that proceeding and provided an opportunity to make comments to the Panel.
Having reviewed the agreed proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent William S. Maddox, Esq. (Maddox) of Rockland, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Maddox was admitted to the Maine Bar in 1990 and he is currently a solo practitioner.
On February 28, 2017, Mr. Payson filed a complaint against Attorney Maddox. On or about March 27, 2017 Attorney Maddox filed a response with the Board.
Both parties were afforded and utilized opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation pursuant to M. Bar R. 2(b)(2) and 13(b).
As a result, on or about August 7, 2017 a panel of the Grievance Commission reviewed Attorney Maddox?s actions in this matter, and based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
Complainant Donald Payson was the great nephew (also referenced at times as her ?nephew-in-law?) of Annette Brooks, who died on July 9, 2015. Her will had designated Attorney Maddox as the Personal Representative of her Estate.
On August 3, 2015, an Application for Informal Probate of Will and Appointment of Personal Representative was filed with the Knox County Probate Court. On August 25, 2015, the Notice to Personal Representative was then provided to Attorney Maddox confirming his appointment as the Personal Representative of the Brooks? Estate. Letters of Authority were also then issued to Attorney Maddox, requiring him to properly (and timely) administer the Brooks? Estate.
In his grievance complaint of February 28, 2017, Mr. Payson had alleged that Attorney Maddox?s neglect of the Brooks? Estate ?has been ongoing for a year and a half,? with little to no work or performance being timely done by Attorney Maddox at that time.
In that regard, Mr. Payson claimed that necessary utility bill payments (e.g., Central Maine Power and Maine Water) on Brooks? home had not been timely attended to or paid by Attorney Maddox.
Mr. Payson then hired Attorney Pasquale Perrino to assist him by sending several inquiry letters to Attorney Maddox. Attorney Perrino entered his appearance with the Knox County Probate Court on April 6, 2016. His letters were not timely answered by Attorney Maddox.
Bar Counsel?s investigation confirmed the following further facts concerning Mr. Payson?s misconduct allegations against Attorney Maddox:
- A specific bequest under the will was not timely paid by Attorney Maddox; and
- Attorney Maddox had also paid a certain late fee assessed for his tardy or non-actions, e.g., failure to pay property taxes on time, but made those payments from funds of the Brooks? estate.
Attorney Maddox did not produce an inventory concerning that estate until so requested by Attorney Perrino. Shortly before Mr. Payson had filed his grievance complaint against Attorney Maddox, i.e. on February 15, 2017, Attorney Naomi Cohen entered her appearance on behalf of the Brooks? Estate with the Knox County Probate Court.
Attorney Cohen?s entry of appearance is the last docket entry in the Brooks? Estate matter, which at that date had been pending informal probate for more than one year and one-half (19 months) after Annette Brooks? death. As a result, Mr. Payson remained upset and frustrated due to Attorney Maddox?s dilatory actions of the processing of this informal probate estate.
The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. In this matter, Attorney Maddox admits and agrees that his above-outlined failure to timely and properly serve his role as the Personal Representative of the Annette Brooks Estate was conduct in violation of the following portions of the Maine Rules of Professional Conduct: 1.3[diligence]; and 1.4(a) [communication]. The Panel notes that Attorney Maddox has now taken responsibility for his transgressions. At the disciplinary hearing, he expressed remorse for his violations of the above-referenced portions of the Maine Rules of Professional Conduct, and he also directly apologized to Mr. Payson.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Maddox agrees that he did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. In that regard, under the required procedures of M. Bar R. 13(e)(6)(8), the Panel considered the existence or absence of any prior sanction record. Accordingly, upon that analysis for imposing a proper sanction concerning the many factors under M. Bar R. 21(c), including its finding of the presence of all the required prerequisites under M. Bar R. 21(b)(1), the Panel finds that an Admonition is the appropriate sanction to be issued against Attorney Maddox in this matter under M. Bar R. 21(b)(1).
Therefore, the Panel accepts the agreement of the parties, including Attorney Maddox?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an ADMONITION to William S. Maddox, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: May 9, 2018
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Jennifer A. Davis, Esq.
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Docket No.: GCF# 17-278
Issued by: Grievance Commission
Date: May 9, 2018
Respondent: Jennifer A. Davis, Esq.
Bar Number: 008923
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e) and 21(b)(5)
On May 9, 2018 with due notice and pursuant to Maine Bar Rule 13(e)(7), Panel D of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Jennifer A. Davis, Esq. The disciplinary proceeding was commenced on January 29, 2018, by the Board of Overseers of the Bar?s (Board) filing of a Stipulated Disciplinary Petition. Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for the Panel?s review and consideration.
At that hearing, Attorney Davis appeared with her Attorney, Sarah K. Hall, Esq. The Board was represented by Assistant Bar Counsel Alan P. Kelley. The complainant, Jessica R. Mague, had been provided with a copy of the parties? proposed Stipulated Report and was not present at that proceeding and provided an opportunity to present comment to the Panel.
Having reviewed the stipulated, proposed findings within that Report as presented by counsel, the Panel makes the following disposition:
The Respondent, Jennifer A. Davis, Esq., of Topsham, Maine was at all times relevant hereto an attorney duly admitted to the practice of law in the State of Maine and subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Attorney Davis was admitted to the Maine Bar in 1999 and she is currently a solo practitioner with an office in Topsham, Maine.
According to the parties? stipulations, the Panel finds the following relevant facts:
On July 12, 2017, a grievance complaint was filed by Jessica R. Mague against Attorney Davis, who then through counsel filed her initial written response with Bar Counsel on September 11, 2017.
During the course of the Board?s investigation, Ms. Mague and Attorney Davis were each afforded the respective opportunity for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
As a result, on or about November 27, 2017 a panel of the Grievance Commission reviewed Attorney Davis?s actions in this matter and found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
Ms. Mague?s complaint involved Attorney Davis?s failure to represent her with diligence and to communicate with her regarding the status of a civil lawsuit involving Ms. Mague and her former long term domestic partner and employer.
In June of 2016, Ms. Mague retained Attorney Davis to represent her in regard to potential legal action against her former domestic partner and employer. Attorney Davis attempted unsuccessfully to negotiate a settlement agreement and drafted a civil complaint on Ms. Mague?s behalf. In December of 2016, Ms. Mague and Attorney Davis discussed filing the complaint and commencing a civil lawsuit against the defendant.
In early 2017 Attorney Davis was involved in the care of a close family member suffering from a serious illness, and in February of 2017 she realized that she had not filed or served the complaint which she had drafted, admitting that her ongoing responsibilities of caring for her family member had required a large amount of attention and focus. In addition, Attorney Davis failed to notify Ms. Mague of her error or take steps to rectify that error until early June of 2017.
In responding to Ms. Mague?s complaint, Attorney Davis admitted to Bar Counsel that she had failed to promptly file the complaint on Ms. Mague?s behalf, and that she had not advised her client of that failure in a timely manner. Attorney Davis also expressed her remorse and detailed the steps which she had taken to prevent any such future errors on her part.
Based on the facts set forth above, Attorney Davis admits that she engaged in violation of the applicable Maine Rules of Professional Conduct as detailed below. Specifically, those rules include M. R. of Prof. Conduct 1.3 (diligence); 1.4(a)(b) (communication); and 8.4(a)(d) (conduct prejudicial to the administration of justice).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Due to Attorney Davis?s above-outlined violation of the Maine Rules of Professional Conduct, Ms. Mague was subjected to delay in the prosecution of her civil claim. The Panel notes that Attorney Davis has no prior public sanction record with the Board and that she has now taken full responsibility for her misconduct. At the disciplinary hearing, Attorney Davis again expressed remorse for her violation of the Maine Rules of Professional Conduct, and the effect which it had on her former client.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Davis agrees that she did in fact violate the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, upon that analysis for imposing a proper sanction under M. Bar R. 21(c), the Panel finds that a reprimand should be issued against Attorney Davis under M. Bar R. 21(b)(5).
Therefore, the Panel accepts the agreement of the parties, including Attorney Davis?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a public Reprimand to Jennifer A. Davis, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: May 9, 2018
James A. McKenna, III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Mary B. Devine, Esq.
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Docket No.: GCF# 17-299
Issued by: Grievance Commission
Date: May 9, 2018
Respondent: Mary B. Devine, Esq.
Bar Number: 002845
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On May 9, 2018, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Mary B. Devine, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on December 13, 2017.
At the hearing, Attorney Devine appeared pro se and the Board was represented by Bar Counsel J. Scott Davis.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for Grievance Commission Panel D?s review and consideration. The complainant, Betsey J. Leslie, had been provided with a copy of the parties? proposed Stipulated Report and was properly notified of the hearing but was not present at the proceeding.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Mary B. Devine, Esq. (Devine) of New Gloucester, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Devine was admitted to the Maine Bar in 1983 and she is currently in a two-person law firm.
On August 1, 2017, Betsey J. Leslie, of New Gloucester, Maine filed her grievance complaint against Attorney Devine, and Attorney Devine then filed her initial response on or about September 4, 2017.
During the course of the Board?s investigation, Ms. Leslie and Attorney Devine were afforded respective opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
As a result, on or about January 9, 2017 a panel of the Grievance Commission reviewed Attorney Devine?s actions in this matter and found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, the Grievance Commission panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
Betsey Leslie complained about Attorney Mary Devine?s lack of diligence in her handling of the probate of Bernice Ann Gelberg?s estate, being Leslie?s mother.
Gelberg?s date of death was April 1, 2017. Attorney Devine had prepared Gelberg?s will.
Ms. Leslie and her sister, Holly Gelberg, first met with Attorney Devine on April 6, 2017. However, Attorney Devine did not timely complete her handling of the Gelberg Estate until early August after numerous inquiries by Ms. Leslie. Attorney Devine agrees that she failed to adequately communicate with Ms. Leslie and did not properly respond to her inquiries.
In her response letter of September 4, 2017 to Bar Counsel, Attorney Devine agreed and acknowledged that the probate of the Gelberg Estate had been delayed as a result of her failure to move the matter forward diligently. Attorney Devine also acknowledged and agreed that in her handling of the probate of that estate she violated each of the following portions of the Maine Rules of Professional Conduct: Rule 1.3 (diligence); Rule 1.4(a) (communication); and Rule 8.4(d) (misconduct prejudicial to the administration of justice).
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. The panel notes that Attorney Devine has taken responsibility for her transgressions. At the disciplinary hearing, Attorney Devine expressed her remorse for her violations of the above-referenced sections of the Maine Rules of Professional Conduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Pursuant to M. Bar R. 13(e)(8) the Panel was informed that Attorney Devine had been privately warned in 1995 and in 2003 for two minor violations of the then applicable Maine Code of Professional Responsibility, with that latter matter involving her inattention and failure to communicate as occurred in Ms. Leslie?s matter. Since the evidence supports a finding and Attorney Devine agrees that she did in fact violate the earlier referenced sections of the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. As a result, upon that analysis for imposing a proper sanction under M. Bar R. 21(c), the Panel finds that a REPRIMAND must be issued against Attorney Devine under M. Bar R. 21(b)(5).
Therefore, the Panel accepts the agreement of the parties, including Attorney Devine?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a REPRIMAND to Mary B. Devine, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: May 9, 2018
James A. McKenna III, Esq., Panel Chair
Teresa M. Cloutier, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Timothy M. Vogel, Esq.
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Docket No.: GCF# 16-350
Issued by: Grievance Commission
Date: May 11, 2018
Respondent: Timothy M. Vogel, Esq.
Bar Number: 002700
Order: Reprimand
Disposition/Conduct: Promptly reply to Reasonable requests for Information
M. Bar R. 13(e)
On April 26, 2018, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning alleged misconduct by the Respondent, Timothy M. Vogel, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on November 20, 2017.
This matter came before the Panel for a hearing upon the Petition and the Answer to the Petition in this action.
Due notice of the hearing, held on April 26, 2018, was given and acknowledged, and all parties agreed to the composition of the Panel, which consisted of Robert S. Hark, Esquire as Chair, Justin D. LeBlanc, Esquire and Richard P. Dana, CPA.
The Board was represented by Bar Counsel, J. Scott Davis; Respondent was represented by his Counsel, James M. Bowie. Present in person was the Complainant.
The Panel heard testimony from the Complainant, Mr. Jonathan Kappel, in his capacity as Personal Representative of the Estate of Marvin Sadik, and from the Respondent; the Panel admitted all of the Board's exhibits and all of the Respondent's exhibits.
At the close of the evidence, both Bar Counsel and Respondent were heard orally as to whether the Board had carried its burden of proof. At that point, the public hearing was closed and the Panel proceeded to deliberate in private.
The allegations of the Petition alleged a failure to communicate, M.R.P.C. 1.4, and a lack of diligence, M.R.P.C 1.3, and Rule 8.4 (misconduct).
The kernel of the allegations of misconduct consisted of, first, failing to diligently provide timely legal services to the Complainant, by failing to timely complete those services that were necessary to accomplish the closing of the estate, which were alleged to constitute a violation of Rule 1.3 ("A lawyer should act with reasonable diligence and promptness in representing a client") and a failure to keep the client informed under Rule l .4(a) ("A lawyer shall: *** (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information ... ").
The facts here disclosed that the administration of the estate entailed gathering significant amounts of financial information (including historic basis information for score of assets sold in the years before the Decedent's death); filing personal and corporate income tax returns for the five (5) years prior to the Decedent's death; liquidating a substantial number of art objects; and processing claims filed against the estate. In short, the administration of this estate posed a number of complex challenges, and the Respondent reasonably retained the services of a CPA firm to effectuate many of the necessary tasks. The evidence shows that the CPA firm was unreasonably dilatory in doing what it was supposed to accomplish. As a result, the estate is still not closed as of this writing.
A review of the Respondent's invoices shows a substantial amount of communication between the Respondent and the CPA firm. It also demonstrates that there was substantial communication throughout this long process between the Respondent and the Complainant. For these reasons, the Panel finds that the Board has failed to sustain its burden of proof as to a lack of diligence and a failure to keep the complainant reasonably informed about the status of the matter, and thus finds no violations of Rules 1.3 or l.4(a)(3). However, the Panel finds that after request from the client for bills or invoices, the Respondent failed to promptly comply with such requests. This would not be noteworthy had the Respondent consistently sent bills on a monthly, bi-monthly or even quarterly basis, but the failure of the Respondent to timely provide bills that were requested constitutes a violation of Rule 1.4(a)(4), which requires that a lawyer "promptly comply with reasonable requests for information." The information in a bill or invoice is important information for any client. Sometimes, the amount a client has invested in attorneys' fees can affect decisions that the client may make. The Panel therefore finds that the Board has proven a violation of Rule l.4(a)(4) by a preponderance of the evidence.
The task remaining before the Panel is to determine the appropriate sanction.
Standards for the appropriateness of a reprimand are found in the Annotated Standards for Imposing Lawyer Sanctions published by the American Bar Association, made applicable by Bar R. 21(c), and specifically in section 9.1, which provides "After misconduct has a been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose." Standard 8.3 states that Reprimand is generally appropriate when a lawyer" ... (b) has received an admonition for the same or similar misconduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system or the profession." We find that the conduct in question caused potential injury to the client. Both "(a) prior disciplinary offenses" and "(i) substantial experience in the practice of law" are aggravating factors under Standard 9.22 of the Annotated Standards for Imposing Lawyer Sanctions. Mitigating facts under Standard 9.32 would be "(b) absence of a dishonest or selfish motive[.]" We find that the Respondent was not motivated by dishonesty or selfishness.
The panel nonetheless finds that the respondent's practice, as evidenced here, concerning excessive delay in billing is considerably short of best practices.
Having heard and considered the evidence, the Panel finds that the sanction of a reprimand is called for here. It is therefore
That the respondent Timothy M. Vogel, shall be and hereby is reprimanded for the conduct alleged in the Petition.
Date: May 11, 2018
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Board of Overseers of the Bar v. Kimberly C. Cavanagh, Esq.
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Docket No.: GCF# 17-214
Issued by: Grievance Commission
Date: May 25, 2018
Respondent: Kimberly C. Cavanagh, Esq.
Bar Number: 008966
Order: Admonition
Disposition/Conduct: Diligence, Proper Communication, Conduct prejudicial to the administration of justice
M. Bar R. 13(e)
On May 25, 2018, with due notice, Panel A of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Kimberly C. Cavanagh, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on February 27, 2018.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis, and Attorney Cavanagh appeared with her counsel, Attorney James M. Bowie.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for Panel A?s review and consideration. The complainant, Leslie Y.R. Love, had earlier been provided with a copy of the parties? proposed Stipulated Report. Bar Counsel Davis confirmed that Ms. Love had indicated her understanding and agreement with that proposed Report as well as her election to not attend this proceeding.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Kimberly C. Cavanagh, Esq. (Attorney Cavanagh) of Dover-Foxcroft, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Cavanagh was admitted to the Maine Bar in 1999 and she is currently engaged in solo practice.
On May 23, 2017, Leslie Y.R. Love filed her complaint against Attorney Cavanagh who then filed her initial response on June 26, 2017.
During the course of the Board?s investigation, Ms. Love and Attorney Cavanagh were each afforded respective opportunities for rebuttal and supplemental responses, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
On November 2, 2017 a panel of the Grievance Commission reviewed Attorney Cavanagh?s actions in this matter and found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules. As a result, that review panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
This grievance complaint concerns Attorney Cavanagh?s failure to properly, competently and timely perform legal services for Leslie Love.
Ms. Love had hired Attorney Cavanagh to help her deal with property issues related to land that her father had deeded to her, retaining a life estate for himself, with payment of property taxes being made by him. Attorney Cavanagh had been retained by Ms. Love in August of 2015 to take action to protect Ms. Love?s legal interests when her father ceased making payment of property taxes on that ?shared? real estate.
In Attorney Cavanagh?s response letter to Bar Counsel?s investigative inquiry she agreed and confirmed that she had not properly and timely replied to Ms. Love as to the status of any legal action(s) taken by her for Ms. Love?s benefit. Ms. Love claimed she had called Attorney Cavanagh over 100 times, receiving only a few replies by Attorney Cavanagh or her staff. In that regard, Attorney Cavanagh referenced her own personal domestic problems as being the primary cause for such neglect of any meaningful action being taken or replies made for Ms. Love?s benefit in her legal action against her father. These personal issues were significant, including two relatively public mental health emergencies involving a family member and requiring significant first responder involvement, as well as the abrupt end to her marriage leaving her as a single mom to two school age children.
In addition, Attorney Cavanagh?s failure to effectively communicate caused Ms. Love to believe that an action on her behalf had been filed in court, but Ms. Love then confirmed that no such formal court action was ever so filed on her behalf.
As a result of Ms. Love?s grievance filing, on July 3, 2017 Attorney Cavanagh withdrew from further representation of Love. However, after Attorney Cavanagh?s withdrawal, Ms. Love later hired new counsel who has been able to properly advise her as to her available options.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. In that regard, Attorney Cavanagh agrees and admits that her conduct in this matter violated M. R. Prof. Conduct 1.3 [diligence]; 1.4(a) [proper communication]; and 8.4(d) [conduct prejudicial to the administration of justice]. The panel notes that Attorney Cavanagh has now taken responsibility for her transgressions and there is little likelihood of repetition by her. The panel also notes that her conduct ultimately caused little or no injury to a client (Ms. Love), the public, the legal system, or the profession. At the disciplinary hearing, Attorney Cavanagh expressed her remorse for the upset she had caused and the lack of communication she had with Ms. Love.
Since the evidence supports a finding and Attorney Cavanagh agrees that she did in fact violate those above-referenced portions of the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. In that regard, under the required procedures of M. Bar R. 13(e)(6)(8), the Panel considered the existence or absence of any prior sanction record. Accordingly, upon that analysis for imposing a proper sanction concerning the many factors under M. Bar R. 21(c), including its finding of the presence of all the required prerequisites under M. Bar. R. 21(b)(1), the Panel finds that a public non-disciplinary Admonition against Attorney Cavanagh under M. Bar R. 21(b)(1) is the appropriate sanction.
Therefore, the Panel accepts the agreement of the parties, including Attorney Cavanagh?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an ADMONITION to Kimberly C. Cavanagh, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: May 25, 2018
Jane S.E. Clayton, Esq., Panel Chair
John P. Gause, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Jon P. Plourde, Esq.
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Docket No.: BAR-17-9
Issued by: Maine Supreme Judicial Court
Date: May 23, 2018
Respondent: Jon P. Plourde, Esq.
Bar Number: 004772
Order: Order for Monitoring
Disposition/Conduct: Monitoring Order
- For a period of one (1) year commencing on May 21, 2018 through May 21, 2019 Attorney Plourde shall be monitored in his practice by Attorney Christine Smith of Presque Isle, Maine. If Attorney Smith is unable to continue her service as Monitor, then that role shall be undertaken by a mutually agreed-upon third party or as otherwise selected and directed by the Court.
- Any costs or fees associated with the Monitor's supervision shall be borne by Attorney Plourde.
- Attorney Plourde will meet with the Monitor at her calling and convenience, on a bi-weekly basis, unless the Monitor subsequently determines that more or less frequent meetings are appropriate.
- The Monitor shall have the right to withdraw and terminate her services at any time for any reason she deems necessary. If the Monitor intends to do so withdraw, she shall provide written notice to Bar Counsel J. Scott Davis and Attorney James M. Bowie (Attorney Plourde's legal counsel) of such withdrawal, whereupon this matter shall then be scheduled for further hearing as deemed appropriate by the Court.
- If any aspect of the monitoring process creates a situation, which is, or might be interpreted to be a conflict of interest under the Maine Rules of Professional Conduct, the Monitor may adopt any one of the following courses with the proposed result:
- Monitor ceases to act as monitor and a potential conflict is avoided;
- Monitor continues to serve as the Monitor, but totally excludes Attorney Plourde's client's matter from the supervision process, so that no conflict is deemed to exist; or
- Monitor continue to serve as the Monitor, but withdraws from the conflicted matter.
- The Monitor shall have the right to contact clerks of court, judges, or opposing counsel to monitor and confirm Attorney Plourde's compliance with his professional obligations.
- Likewise, if the Monitor determines that Attorney Plourde should refrain from expanding his practice areas, the Monitor shall inform Attorney Plourde of that fact. Attorney Plourde shall then follow the Monitor's directive to refrain or limit his acceptance of such cases, absent the Court's order to the contrary.
- The Monitor's participation in the disposition of Attorney Plourde's disciplinary case and monitoring of Attorney Plourde's practice shall be deemed not to create an attorney-client relationship between Attorney Plourde and the Monitor. Moreover, the attorney-client privilege shall not apply to the Monitor's supervision of Attorney Plourde's practice, and the Monitor shall be immune from any civil liability (including without limitation, any liability for defamation) to Attorney Plourde.
- The Monitor shall have the authority to review and examine any of Attorney Plourde's files, except those in which the Monitor might have adverse interests under paragraphs 4 or 5. In that event, the Monitor shall notify Bar Counsel Davis, who may then develop an alternative means of file review.
- Attorney Plourde shall prepare and present to the Monitor two weeks in advance of their first meeting a list of all his current clients, showing each pending client's matter with a brief summary and calendar of the status thereof. For all subsequent meetings, Attorney Plourde shall prepare and present that information to the Monitor at least three days in advance of the meeting.
- The Monitor will, as soon as practicable, have Attorney Plourde establish a method of objectively identifying problematic or delinquent client matters and have Attorney Plourde institute internal checks and controls to make his practice appropriately responsible to the needs of his clients.
- The Monitor shall file a confidential report with the Court every three months or sooner if the Court deems it necessary. The Report shall be copied to Bar Counsel Davis and Attorney Bowie, and shall cover at least the following subjects:
- Measures Attorney Plourde has taken to avoid delinquencies or adverse court action;
- A description of any client matter identified as delinquent or problematic;
- Any professional assistance the Monitor has provided to Attorney Plourde; and
- A summary of relevant status updates provided by court staff and members of the bar, as referenced in ¶6.
- The Monitor shall have the duty to file a written report with the Court and Bar Counsel Davis concerning any apparent or actual professional misconduct by Attorney Plourde of which the Monitor becomes aware.
- The Monitor shall provide a written report to the Court and Bar Counsel concerning any lack of cooperation by Attorney Plourde with the terms of this Order.
- If he has not already done so, Attorney Plourde shall designate a Maine attorney to serve as his proxy in the event of any future disability, pursuant to M. Bar R. 1(g)(12).
- Attorney Plourde shall report any grievance complaints and disciplinary proceedings and/or sanctions to all jurisdictions where he is admitted.
- Attorney Plourde shall timely comply with his required annual registration filings and continuing legal education requirements.
- Any verified and/or investigated new complaints concerning conduct that allegedly occurred after the date of this Order, may form the basis for additional disciplinary filings by the Board of Overseers of the Bar directly before the Supreme Judicial Court under M. Bar R. 13(g).
- Attorney Plourde's violation of any condition enumerated within this Order may result in the Board?s filing a Petition to Terminate the suspended portion of his Suspension Sanction.
Date: May 23, 2018
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: BAR-17-18
Issued by: Maine Supreme Judicial Court
Date: May 31, 2018
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Reprimand
Disposition/Conduct: Single Justice Affirmed Decision [Decision modified after review]
This matter is before the Court on Anthony P. Shusta II's petition for review, pursuant to M. Bar. R. 13(f)(l), from a Report of Findings and Order of Panel E of the Grievance Commission, GCF No.15-291, dated September 8, 2017. That decision, entered after a contested hearing, found violations of Maine Rules of Professional Conduct Rules 3.3(a)(l) (Candor Toward the Tribunal); 4.3 (Dealing with Unrepresented Person); and 8.4(a) and (c) (Misconduct). As a sanction, the Grievance Commission ordered a public reprimand and a two-year period of supervised probation subject to several conditions. Shusta filed a timely petition for review by a single justice from that decision. M. Bar R. 13(f)(l).
The appeal was heard on May 23, 2018, at the Capital Judicial Center in Augusta. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Anthony P. Shusta II appeared on his own behalf.
Prior to commencement of the hearing, two matters effecting the scope of the issues on appeal were addressed:
- Without objection from either party, and as addressed in the Court's Scheduling Order of April 9, 2018, the Court added to the record for consideration on appeal a copy of an unsigned agreement entered between Shusta and Bar Counsel recommending disposition of the disciplinary proceeding by stipulated facts and an admonition.
Also added to the record on appeal was an affidavit by the Executive Director of the Board of Overseers of the Bar dated April 12, 2018. That affidavit stated the substance of unrecorded discussions between the Executive Director and Grievance Commission Panel E that occurred on June 14, 2017, near the conclusion at the first day of the hearing. Neither Shusta nor Assistant Bar Counsel were in the hearing room when that discussion had occurred. On May 23, Shusta indicated that, although the issue was reserved for decision in the Scheduling Order, he no longer wished to examine the Executive Director of the Board of Overseers of the Bar regarding her conversations with the Grievance Commission on June 14.
- Some statements in various documents filed on Shusta's behalf during the pendency of this petition for review indicated that, in addition to his direct appeal of the decision in GCF No. 15-291, Shusta may also have been attempting to challenge, in this proceeding, the results of a separate decision by Panel A of the Grievance Commission, GCF No. 15-063. That decision had been rendered in 2016. Shusta indicated that he was not pressing any challenge to the result in GCF No. 15-063.
With these issues resolved, no further taking of evidence was required and the parties proceeded to argument.
The standard of review for these matters is specified in M. Bar. R. 13(f)(4). Review is based on the record developed before the Grievance Commission plus any additions to that record ordered by the Court. The standard of review as to the facts is deferential. Findings "shall not be set aside unless clearly erroneous." Id. Thus, findings must be affirmed if supported by any evidence in the record and reasonable inferences that may be drawn from that evidence. See Board of Overseers of the Bar v. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103 (addressing the standard of review of fact-findings and conclusions by a single justice). The Court reviews Grievance Commission conclusions based on the findings and any rulings as to law de novo. Id.
The following statements of the facts are drawn from the findings of the Grievance Commission dated September 8, 2017, and evidence in the record of the Grievance Commission proceeding, including a transcript of a March 9, 2015, District Court hearing.
The violations of the Maine Rules of Professional Conduct that are alleged arose out of events that occurred before and during a hearing that occurred before a magistrate at the Skowhegan District Court on March 9, 2015. That proceeding related to a petition for determination of paternity and assessment of child support obligations filed against Shusta's client by the Maine Department of Health and Human Services, FM-2014-00126, and a separate petition for determination of parental rights and responsibilities filed by Shusta on behalf of his client, the father of the child, against the mother of the child, FM-2015-0003.
At all times relevant to the ethics complaint, the mother was not represented. The mother was appointed counsel after she filed a petition for termination of the father's parental rights following the District Court hearing.
At some time prior to the District Court hearing date, Shusta, acting on behalf of the father, contacted the mother to explore the possibility of negotiating an agreement in the parental rights matter. The outlines of the proposed agreement were that (i) the mother would have sole parental rights and responsibilities for the child, (ii) the father would have no contact with or responsibility for the child, (iii) the father would pay retroactive child support for the child in an amount determined in the proceeding initiated by the Department of Health and Human Services until the parental rights and responsibilities order and a concurrent order terminating the father's parental rights were entered, and (iv) the mother would initiate a termination of parental rights proceeding that would be agreed to by the father. The object of the termination of parental rights and responsibilities proceeding would be to end any of the father's obligations toward or responsibilities for the child.
The District Court had schedule a mediation session with a mediator and then a status conference with the magistrate for March 9, 2015. Because the parental rights and the paternity and child support proceedings had been combined, the father, the mother and the Department were notified of the mediation session and the status conference.
Shusta, the father, and the mother appeared and participated in the mediation session. No representative of the Department appeared to participate in the mediation session. Discussion of the prospective settlement agreement between the father and the mother continued during the mediation session in the presence of the mediator, an experienced attorney. The mediator reported to the magistrate apparent resolution of at least the parental rights matter, based on the discussion at the mediation session.
The court then held its status conference on the record. At the status conference, Shusta, the father, the mother and a support enforcement agent for the Department appeared. No attorney appeared to represent the Department. The Department being represented by a support enforcement agent appears to have been an accepted practice in such proceedings.
Shusta stated the elements of his discussions with the mother and the prospective settlement to the magistrate. The Department agent then suggested that the terms of the settlement agreement, particularly related to termination of child support, should be subject to review and discussion by the Assistant Attorney General representing the Department. Shusta responded in a manner indicating that "she" had had an opportunity to review the settlement agreement and the petition for termination of parental rights. Shusta had not discussed the matter with any assistant attorney general. The actual colloquy at issue is found on page four of the transcript of the March 9 hearing.
Based on the representation of the parties and the court's inquiries of the mother and the father as to whether they understood the terms and implications of the settlement agreement, including an inquiry to the mother in which she indicated that adoption of the child was under consideration, the court approved the settlement agreement and, prospectively, the agreed to the termination of parental rights petition.
Counsel was appointed to represent the mother in the termination of parental rights proceeding. Subsequently, on the Department's request to the District Court for reconsideration, the termination of parental rights determination and the waiver of the father's obligation to pay future child support were vacated and, it appears, the father continues obligated to pay child support. It is prior to this point that all of the ethical violations are alleged to have occurred.
This disciplinary proceeding was initiated by a September 2015 complaint filed with the Board by an Assistant Attorney General representing the Department.
The evidence before the Grievance Commission regarding violation of Maine Rules of Professional Conduct Rule 3.3(a)(l) (Candor Toward the Tribunal) is in conflict. The Department contended that Shusta had misrepresented to the magistrate that he had reviewed the settlement agreement with an Assistant Attorney General representing the Department. Shusta contended that he heard the Department's agent's question about review of the settlement agreement as referencing the mother, not an Assistant Attorney General. However, on a deferential view of its fact findings, there is more than sufficient evidence in the record to support the Grievance Commission's finding that Shusta misrepresented to the court that he had reviewed the termination petition and settlement agreement with an Assistant Attorney General and that the Assistant Attorney General, "she," had then made changes to render the agreement more to her approval.
On this record, the Grievance Commission committed no error of law in determining that Shusta had violated Rule 3.3(a)(l). A finding of a violation of Rule 3.3(a)(l) also supports a finding of a violation of the catch-all provision, Rule 8.4 of the Maine Rules of Professional Conduct.
The Court turns to the issue of the Grievance Commission finding of a violation of Rule 4.3 (Dealing with Unrepresented Person). The Grievance Commission findings indicate that Shusta met with the mother to discuss a settlement that would include termination of the father's parental rights and that the mother indicated agreement with Shusta's suggested settlement. A key meeting occurred on March 9, 2015, at the courthouse, prior to the mediation session. At that March 9 meeting, the Grievance Commission found, Shusta presented and the mother signed the petition to terminate the father's parental rights. This settlement was discussed with the mediator, then the parties went before the magistrate to discuss the settlement, including the proposed termination of parental rights.
Throughout these discussions, the Grievance Commission found that in the mother's interactions with Shusta, she "did understand that he was not representing her legal interests."
Before the magistrate, Shusta acknowledged that a petition for termination of parental rights would be filed "tomorrow," that the mother had requested some changes in the petition that had been made, and that the father would consent to termination of parental rights. The court then questioned the father and the mother regarding their understanding of the agreement in the parental rights matter, including a question to the mother to which the mother responded indicating that an adoption of the child was possible.
During questioning by the court, under oath, the mother acknowledged to the court that (i) she was getting sole decision-making authority; (ii) the child would live with her; (iii) the father would have no contact with the child; (iv) she was not requesting future child support; (v) she had a right to a hearing on all of the issues to which she was agreeing; and (vi) she was agreeing to the final parental rights resolution "of your own free will." The court then indicated that it approved the parental rights agreement, including termination of the father's child support obligation, effective March 13, 2015.
The termination of parental rights petition was filed by the mother the next day.
Rule 4.3 addressing dealings between counsel for a party and an opposing unrepresented party in a proceeding states:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, but may provide legal information to and may negotiate with the unrepresented person. The lawyer may recommend that such unrepresented client secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
On the available record, the Grievance Commission found that the mother understood that Shusta was not representing her legal interests, and there is nothing in the record of events occurring in 2015 that otherwise indicates that the mother misunderstood the lawyer's role. The court's independent inquiry of the mother confirms that she understood the basics of the settlement agreement and was making that agreement of her own free will. Accordingly, the record of the events in 2015 does not support the Grievance Commission's conclusion that Shusta had improperly provided prohibited legal advice to an unrepresented individual. Shusta provided legal information to the mother and negotiated with her as authorized by Rule 4.3, but the trial court's independent inquiry demonstrates that Shusta's communications with the mother did not constitute legal advice that induced the mother to do something that was contrary to her own interest.
This view is confirmed by review of Rule 4.3 Comments [2] and [2A], which provide aids to interpretation of Rule 4.3. Those Comments state:
[2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer's client and those in which the person's interests are not in conflict with the client's. In the former situation, the possibility that the lawyer will compromise the unrepresented person's interests is so great that the Rule prohibits the giving of any advice. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person, or recommending an unrepresented person secure counsel. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the lawyer's own view of the meaning of the document or the lawyer's view of the underlying legal obligations.
[2A] This rule is not intended to limit negotiations between a lawyer and an unrepresented person, nor limit information provided by the lawyer to an unrepresented person.
The portions of the comments that are italicized, added to the Grievance Commission's finding that the mother understood that Shusta was not representing her legal interests, appear to summarize the interactions between Shusta and the mother in this case: proper negotiation, information about the terms on which the matter might be settled, preparation of a document to implement the settlement that was explained to the mother and that required her signature after changes were made that she requested. These actions, taken in 2015, reviewed at the time by the trial court, do not demonstrate violation of the terms of Rule 4.3 and Comments [2] and [2A].
In domestic relations matters, many parties are unrepresented. And in many cases, as in this case, one party is represented and the other party may not be represented. In such circumstances, experience indicates that the attorney for the represented party often speaks with the unrepresented party about the substance of the case with an eye towards resolution of the matter without a full trial. There is no ethical violation in such contact. Such contact is encouraged by court processes in domestic relations matters with the hope of avoiding trauma to children by promoting resolution of cases by agreement without contested hearings. When, as here, agreements are reached in preliminary proceedings, magistrates are authorized to "enter agreements on the record at the conference." M.R. Civ. P. 110A(b)(1).
Such discussions and negotiations occur in all types of cases, including cases where determination of child support may be an issue. Sometimes, there may even be a partial unity of interest between the represented party and the unrepresented party. The unrepresented party may be desirous of having sole parental rights to the child, with the represented party having no participation in the unrepresented party's life or the child's life. Or, as here, the unrepresented party with the child may have no personal interest in collecting child support benefits from the represented party because the child support benefits would actually be paid to the Department. In such circumstances, it is neither unusual nor unethical for the attorney of the represented party to draft documents for the parties to sign to memorialize and implement agreements the parties have reached with regard to parental rights and responsibilities and child support.
In the child support collection case, the Department certainly had an interest adverse to both the mother and the father, because it wanted to continue to collect child support payments from the father to offset the payments that the State was making to the mother to support the child. However, this adverse interest does not create the type of conflict of interest between the represented father and the unrepresented mother that would make the father's attorney's dealings with the mother an ethical violation. In this proceeding, Shusta has been sanctioned based on the Grievance Commission's finding that he had misrepresented to the court the Department's position regarding the proposed settlement of the case. However, Shusta's dealings with the Department do not implicate Rule 4.3.
Thus, in the circumstances, the father's attorney's communications with the mother, his development of documents to implement their settlement agreement, and his drafting of a private termination of parental rights petition for the mother to file with the father's agreement, did not constitute a violation of Rule 4.3 or any other rule of ethics.
Any opinion suggesting that contact and drafting agreements between an attorney representing a party in a domestic relations matter and an unrepresented party in the same matter is an ethical violation could seriously complicate the processing of domestic relations cases. Such contacts must occur with the hope that, as occurred here, a domestic relations case can be resolved by agreements negotiated between the parties without the delay, cost and trauma to the child that result from fully contested proceedings. It must be noted also, that, beyond the contacts between the father's attorney and the mother, extra protection was provided by the fact that the trial court made an independent inquiry of the mother and the father about their understanding of the settlement agreement, and its implications and only indicated the court's approval of the represented terms of the settlement agreement after the court made its own inquiry of the parties. The Court concludes as a matter of law that the Grievance Commission erred in determining that the contact between the father's attorney and the mother, including the drafting of documents, where the court then made inquiry of both parties regarding their understanding of the settlement agreement, amounted to an ethical violation. Accordingly, the Grievance Commission's conclusion that Rule 4.3 was violated is vacated.
Near the completion of the oral argument, the Court inquired of the parties what steps should be taken if the Court determined as a matter of law that the Grievance Commission had erred in determining that Rule 4.3 had been violated but affirmed the Grievance Commission's finding of a violation of Rule 3.3(a)(l) and, consequently, the finding of a violation of Rule 8.4. Both parties indicated, in response to the Court's inquiry, that the Court itself should then proceed to decide the appropriate sanction. Remand to the Grievance Commission was not suggested.
Considering what is left, the determination that Rule 3.3(a)(l) (Candor Toward the Tribunal) had been violated, the Court determines that appropriate sanction, in the circumstances, is a public reprimand. The Court determines that a period of probation, as ordered by the Grievance Commission after finding violations of both Rule 3.3 and Rule 4.3, is not merited. Testimony from the magistrate at the Grievance Commission hearing indicated considerable experience with Attorney Shusta and no indication of any significant problem with misrepresentation of matters to tribunals. Accordingly, a term of probation could add considerable cost and difficulty to an attorney's practice and is not warranted when there is no demonstrated problem that would be significantly resolved with a period of probation.
Based on the above discussion, the Court vacates the determination of a violation of Rule 4.3, and the Court vacates the ordered sanction that was based, in part, on the determination of violation of Rule 4.3.
On its reconsideration of the sanction, in accordance with the suggestions of the parties that it decide the sanction upon finding that the Rule 4.3 violation has not been demonstrated, the Court determines an appropriate sanction is a public reprimand, and the Court orders a public reprimand. No other sanction is imposed.
SO ORDERED.
Dated: May 31, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Mark L. Walker, Esq.
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Docket No.: GCF# 17-226
Issued by: Grievance Commission
Date: June 7, 2018
Respondent: Mark L. Walker, Esq.
Bar Number: 007841
Order: Reprimand
Disposition/Conduct: Competence, Diligence, Communication
M. Bar R. 13(e)
On June 7, 2018, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Mark L. Walker, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the March 22, 2018 filing of a Stipulated Disciplinary Petition.
At the hearing, Attorney Walker appeared pro se and the Board was represented by Deputy Bar Counsel Aria Eee. Also present were the complainants, Harriet and David Schmidt.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission?s advanced review and consideration. The Schmidts had also been provided with a copy of the parties? proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission Panel makes the following disposition:
Respondent Mark L. Walker, Esq. (Attorney Walker) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Walker is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (M.R.P.C.). Attorney Walker was admitted to the Maine Bar in 1982 and he is currently practicing in a small Hallowell firm.
According to the parties? stipulations, the Panel finds the following relevant facts:
On May 31, 2017, Harriet and David Schmidt filed a complaint against Attorney Walker, alleging neglect and a lack of communication. Attorney Walker responded to the Schmidt?s complaint, generally admitting his failure to expedite their legal matter and maintain regular contact with them.
Specific to that legal matter, in 2013, the Schmidts had hired Attorney Walker for representation which included review and execution of a rental lease concerning their former Hallowell restaurant. The Schmidts also consulted with Attorney Walker because of A/C failures resulting in financial losses incurred by the restaurant. Attorney Walker provided the Schmidts with advice related to their various options. He developed a successful working relationship with them and intended to help achieve their goals to resolve their legal disputes. Attorney Walker continues to serve as counsel for the Schmidts.
Nonetheless, Attorney Walker acknowledges a lack of ample communication with his clients. After receiving the Schmidt?s bar complaint, Walker then discussed with them a proposed plan whereby he would have weekly communication/status updates and would expedite his efforts to meet their litigation goals. Unfortunately, Attorney Walker has achieved only nominal progress to advance the Schmidts? goals and to reassure them of his commitment to their legal matter. While he has made phone calls to related entities and sought meetings to resolve the disputed issues, his more recent efforts have not yet led to actionable results. Those failures have proved understandably frustrating to Mrs. and Mr. Schmidt.
Attorney Walker agrees that his performance on behalf of the Schmidts was below acceptable standards of care for an attorney. It also constituted professional misconduct in violation of M. R. Prof. Conduct 1.1[competence]; 1.3[diligence]; and 1.4(a)[communication]. The Maine Rules of Professional Conduct specifically requires attorneys to uphold their responsibilities to clients and the courts. Attorney Walker agrees that he violated his duties to comply with those Rules.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Walker agrees that he did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer's misconduct; and
- the existence of any aggravating or mitigating factors.
In this matter, Attorney Walker agrees that his misconduct violated duties that he owed to his clients and to the profession. There is injury to his clients based upon Attorney Walker?s delayed efforts. As well, the Schmidts unnecessarily experienced distress and uncertainty associated with resolution of their legal matters. However, the Commission does not find that Attorney Walker acted with the intent to harm his clients? interests; in fact, he continued to try to assist them but has not been successful in doing so.
Regarding aggravating factors, Attorney Walker has substantial experience in the practice of law. In mitigation, Attorney Walker has no prior disciplinary record, he has admitted his misconduct, has expressed remorse for that misconduct and has been cooperative throughout the investigation and prosecution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Public Reprimand is the appropriate sanction to address the misconduct by Attorney Walker. Therefore, the Commission accepts the agreement of the parties, including Attorney Walker?s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a REPRIMAND to Mark L. Walker, Esq. which is now hereby issued and imposed upon him pursuant to M. Bar R. 13(e)(1) and 21(b)(5).
Date: June 7, 2018
Teresa M. Cloutier, Esq., Panel Chair
Carolyn A. Silsby, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Joseph R. Sanchez
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Docket No.: GCF# 17-177
Issued by: Grievance Commission
Date: June 8, 2018
Respondent: Joseph R. Sanchez
Bar Number: 009469
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On June 7, 2018, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning alleged misconduct by the Respondent, Joseph R. Sanchez. This disciplinary proceeding had been commenced by the filing of a Formal Disciplinary Charges Petition by the Board of Overseers of the Bar (the Board) on January 29, 2018.
At the hearing, the Board was represented by Bar Counsel J. Scott Davis. Respondent appeared telephonically on his own behalf. The complainant, Harold D. Sandelin, also appeared telephonically. Prior to the date of the hearing, the parties negotiated a proposed Stipulated Report of Findings and Order for the Panel's review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected. The Board shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to M. Bar R. 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: June 8, 2018
Teresa M. Cloutier, Esq., Acting Chair
Carolyn A Silsby, Esq., Panel Member
Emilie van Eeghen, Public Member
Board of Overseers of the Bar v. Daniel L. Lacasse, Esq.
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Docket No.: BAR-17-3
Issued by: Maine Supreme Judicial Court
Date: June 8, 2018
Respondent: Daniel L. Lacasse, Esq.
Bar Number: 002433
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is Receiver John A. Churchill?s Report of Receiver dated May 11, 2018. For good cause shown and without objection, Receiver Churchill?s final Report of Receiver is accepted by the Court.
Furthermore, it is ORDERED that John A. Churchill is discharged as Receiver of the law practice of Daniel L. Lacasse. Attorney Churchill is directed to contact the State Treasurer regarding any unclaimed trust account funds. It is further ORDERED that the Board shall continue to ensure that all client property is protected and/or destroyed consistent with the Maine Rules of Professional Conduct. The Court extends its gratitude to Attorney Churchill for his pro bono service and efforts in protecting the clients of and closing the law office of Daniel L. Lacasse, Esq.
Dated: June 8, 2018
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Patti R. Davis
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Docket No.: BAR-18-7
Issued by: Maine Supreme Judicial Court
Date: June 18, 2018
Respondent: Patti R. Davis
Bar Number: 003217
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Patti R. Davis has petitioned for reinstatement to active status in the Maine bar. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Ms. Davis' reinstatement to active practice pursuant to M. Bar R. 4(j) and 29(f)(l), subject to the Court's approval. The Court has reviewed Ms. Davis' "Petition for Reinstatement to Maine Bar after Inactive Status" and determined that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Patti R. Davis, Bar #003217, is hereby reinstated to active status in the bar of the State of Maine with all the rights and responsibilities related hereto.
Dated: June 18, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Louise A. Klaila
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Docket No.: BAR-18-6
Issued by: Maine Supreme Judicial Court
Date: July 2, 2018
Respondent: Louise A. Klaila
Bar Number: 007264
Order: Suspension
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
Louise A. Klaila was admitted to the Maine bar in 1990. In October 2009, Ms. Klaila became administratively suspended due to her failure to timely renew her licensure and pay the required fees/assessments. Prior to her suspension, Ms. Klaila was registered with the Maine Board of Overseers of the Bar (the Board) as a non-resident active attorney.
In May 2018, the Board received certified confirmation that the Louisiana Supreme Court issued a March 23, 2018 Suspension Order against Ms. Klaila. The Court's imposition of a one year and one day suspension was based upon Ms. Klaila's violations of L. R. Prof. Conduct 1.3; 1.4; 1.5; 1.15; 3.2; 8.1(c); and 8.4(a). That suspension became effective March 23, 2018.
The Court notes that Ms. Klaila's professional conduct violations included her commingling and converting client funds; neglecting her client's matter; failing to communicate with her client; failing to return unearned fees; failing to advance her client's legal matter; and knowingly, if not intentionally, failing to timely respond and cooperate with the Louisiana Office of Disciplinary Counsel. In Maine, Ms. Klaila's misconduct would constitute analogous violations of M. R. Prof. Conduct 1.3; 1.4; 1.5; 1.15; 3.2; and 8.4(a).
Based upon the above rule violations, the Court finds that reciprocal discipline in Maine is warranted. Accordingly. the Court ORDERS that Louise A. Klaila is now suspended from the practice of law in Maine for one year and one day. and she may not return to practicing law in Maine until such time as her Petition for Reinstatement is granted.
Dated: July 2, 2018
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert M. Neault, Esq.
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Docket No.: BAR-15-16
Issued by: Maine Supreme Judicial Court
Date: July 9, 2018
Respondent: Robert M. Neault, Esq.
Bar Number: 006874
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is Receiver Thomas F. Smith’s Report of Receiver dated June 28, 2018. For good cause shown and without objection, Receiver Smith’s final Report of Receiver is accepted by the Court.
Furthermore, it is ORDERED that Thomas F. Smith is discharged as Receiver of the law practice of deceased attorney Robert M. Neault. Receiver Smith and the Board shall coordinate a transfer of any remaining client files in the Receiver’s possession. Once in possession of aforementioned files, the Board shall arrange for their secure storage and/or destruction consistent with the Maine Rules of Professional Conduct. Additionally, the Board shall hold in trust the large sum of unclaimed and non-allocable client funds remaining in Attorney Neault’s two trust accounts until July 1, 2023, unless otherwise ordered by the Court. The Court extends its gratitude to Attorney Smith for his pro bono service and efforts in protecting the clients of and closing the law office of Robert M. Neault, Esq.
Dated: July 9, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Robert J. Stolt, Esq.
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Docket No.: BAR-18-8
Issued by: Maine Supreme Judicial Court
Date: July 17, 2018
Respondent: Robert J. Stolt, Esq.
Bar Number: 001406
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, the Board of Overseers of the Bar is appointed Limited Receiver for final closing of the law practice of Robert J. Stolt. Pursuant to this Order, the Board as Limited Receiver shall:
- place an office closure notice in the Kennebec Journal;
- secure any professional files, client property, and client data of Robert J. Stolt;
- attempt to return client property;
- inventory client files; and
- store and/or dispose of client files in accordance with the Maine Rules of Professional Conduct.
As a service to the bar, the Board shall act as Limited Receiver for the Stolt law office on a pro bono basis. However, the Board may seek reimbursement of costs associated with Receivership duties and the law office of Robert J. Stolt shall be the first choice for source of payment for any disbursements made in this matter if sufficient assets are available.
The Board shall act as Limited Receiver until discharged by the Court in accordance with M. Bar R. 32(c).
The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such files relate except as may be necessary to carry out an order of the court including any order under M. Bar R. 32.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: July 17, 2018
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jeffrey P. White, Esq.
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Docket No.: BAR-18-3
Issued by: Maine Supreme Judicial Court
Date: July 30, 2018
Respondent: Jeffrey P. White, Esq.
Bar Number: 003804
Order: Findings, Conclusions and Order
Disposition/Conduct: Sanctions hearing to be scheduled.
This matter is before the Court for decision following a hearing in this Bar disciplinary matter held on July 12, 2018, at the Capital Judicial Center in Augusta. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Jeffrey P. White appeared and was represented by Attorney Daniel L. Cummings. The issues at hearing addressed a four-count Bar disciplinary information filed with the Court on April 26, 2018.
Based on testimony by the witnesses at the hearing, the exhibits offered and admitted into evidence either by agreement or by ruling of the Court, stipulated facts1 and rules of the United States Bankruptcy Court for the District of Maine, of which the Court takes judicial notice as discussed with the parties at hearing, the Court makes the following findings. Except for the introductory findings, the findings will be ordered by the four separate counts in the information which each address a separate disciplinary complaint.
Attorney Jeffrey P. White has been practicing law for thirty-seven years. He was initially admitted to practice in Illinois and testified that he moved to Maine in 2003 and was admitted to practice in Maine in 2008. White has considerable experience in bankruptcy matters. Currently, ninety-five percent of his practice involves bankruptcies. He operates a solo practice in Auburn with the assistance of a paralegal for office management, bookkeeping and other functions related to maintenance of his law practice. By operation of Maine Rule of Professional Conduct 5.3, White is fully responsible, ethically, for proper supervision of his paralegal assistant and is ethically accountable for any actions related to his practice that his paralegal has taken under his direction.
- On September 4, 2014, Peter J. Polombo, Jr. and his wife retained White to draft a deed transferring real estate owned by Mrs. Polombo individually to the couple as joint owners, and to draft an easement for the property.
- Mr. and Mrs. Polombo gave White a copy of a deed with a description of the property to be conveyed, along with a copy of the survey showing the requested easement and paid him a retainer of $300.
- A second meeting was scheduled at Mr. Polombo’s request on September 24, 2014; however, White had to cancel the meeting. No further meetings occurred.
- Mr. Polombo’s phone records indicate that he subsequently called White’s office on ten different occasions between October 2, 2014, and January 22, 2015, with each call showing a duration of no more than two minutes. Attorney White does not recall having received that many calls from Mr. Polombo but believes he did speak with Mr. Polombo by telephone on more than one occasion during that period of time.
- Attorney White never provided the Polombos with the deed or the easement that they had retained him to draft.
- On May 2, 2015, Mr. Polombo emailed White requesting a return of the documents that had been provided to White and a return of the $300 retainer. Attorney White did not respond.
- On May 28, 2015, Mr. Polombo attempted to email White requesting a return of the documents the Polombos had provided to White and the return of the $300 retainer. Because Mr. Polombo used an inaccurate email address, White never received that second email.
- On June 5, 2015, Mr. Polombo filed a complaint with the Board against Attorney White.
- White never read Mr. Polombo’s May 2, 2015, email until after he received Mr. Polombo’s complaint forwarded to him by Bar Counsel. Responding to Bar Counsel by a letter dated July 9, 2015, White called the Polombo complaint a "clarion call" motivating him to reexamine his practice to achieve "better client communication and reduce my client load."
- White sent a letter, also dated July 9, 2015, to Mr. Polombo acknowledging that he was "not timely in finalizing the drafting" that Polombo requested and apologizing for that failure. He included with the letter the original documents Polombo had sent him and an unsigned personal money order made out to Mr. Polombo in the amount of $300. After the money order was returned to White for signature, White signed the money order and returned it to Mr. Polombo on July 22, 2015.
- When asked why he had not returned Mr. Polombo’s retainer using a check drawn on his trust account, White indicated that it is his practice to repay client funds by use of a money order rather than checks drawn on his trust account. White did testify that the Polombos’ retainer was placed in his trust account, but there is no documentary evidence to support that claim.
- The Court finds that the Polombos $300 retainer was never put in any trust account, and, whatever account the $300 was placed in, the balance in the account become so low that the $300 could not be repaid when the Polombos requested return of their retainer.
- The Court finds that White’s dilatory conduct in failing to do the work that he was engaged by the Polombos to do and failing to promptly return the retainer and original documents provided to him by the Polombos after the May 2, 2015, request that the retainer and documents be returned, constituted violations of Maine Rules of Professional Conduct 1.3 (dilatory conduct in representation); 1.4(a)(2)(3) & (4) (communication with clients); 1.5(i) (safekeeping and return of unused retainer); and 1.16(d) (return of paid but unearned fees upon termination of representation).
- The Court finds that White’s failure to place the Polombos’ retainer in a trust account or his failure to maintain a sufficient balance in his operating account to protect the integrity of the Polombos’ retainer until he performed and billed for the services for which he was retained is a violation of Maine Rule of Professional Conduct 1.15(b), requiring that client funds be placed in and maintained in a trust account until they are earned or repaid to the client, including Rule 1.15(b)(2)(iv), requiring that upon a client’s request, funds the client is entitled to receive be promptly paid or delivered to the client.
- In August of 2013, Jackson Nadeau and his wife met with Attorney White seeking legal assistance regarding the foreclosure of their home mortgage.
- Attorney White’s initial advice to the Nadeaus was that they should consider filing bankruptcy. However, the Nadeaus were unwilling to file bankruptcy at that time.
- On August 5, 2013, Mr. Nadeau wrote a check to White for $1,500 as a retainer.
- After writing the check, Mr. Nadeau again met with White who reiterated to Mr. Nadeau that bankruptcy was the "best option" for them. However, the Nadeaus remained unwilling to pursue bankruptcy at that time.
- Prior to this hearing, and in accordance with Court’s scheduling order, the parties met to prepare and disclose exhibits, determine which exhibits could be admitted by agreement and which exhibits would be contested and to attempt to stipulate facts to aid in focusing the issues and, if possible, avoid the need to call certain witnesses at hearing. As a result of the stipulations of facts agreed to by Bar Counsel and counsel for White, there was no need to call witnesses to address the issues related to Count I and Count II in the information.
- At the hearing, White testified that the Nadeaus had retained him to consider a bankruptcy and that the retainer was paid to him to do nothing specific but to be ready to proceed with a bankruptcy matter if the Nadeaus’ unrepresented efforts to address the foreclosure matter did not resolve as the Nadeaus hoped it might. This testimony by White at the hearing was the first time there was any indication in the record, stretching back to the Nadeaus’ June 2015 complaint that the purpose for which the Nadeaus retained White was to be prepared to pursue a bankruptcy but otherwise do nothing until the Nadeaus’ unrepresented efforts to defend the foreclosure led them to determine that they should pursue a bankruptcy.
- After White made this statement testifying at hearing, the Court noted the inconsistency between White’s statement and the agreed stipulation that the Nadeaus had retained White "seeking legal assistance regarding the foreclosure of their home mortgage." (Stipulated fact 11.)
- In response to a question from the Court, counsel for White indicated that perhaps the stipulation should be withdrawn. However, withdrawing a stipulation would have prejudiced the Board because the witnesses who could have testified to the purpose for which White was retained were unavailable as a result of the stipulation. Further, the stipulation was consistent with the position maintained by the Board, with no contrary statements or arguments by White, in the two years between the Nadeaus’ filing of their complaint with the Board and the July 12, 2018 hearing.
- The Court finds that White’s testimony that the purpose for which the Nadeaus retained him was to simply be available to proceed with a bankruptcy if their unrepresented efforts to defend the foreclosure action were unsuccessful was false and designed to justify his failure to act after he was retained by the Nadeaus.
- The parties agree (Stipulation 15), that between August of 2013 when he was retained to defend the foreclosure action, and January of 2015, the Nadeaus had no contact with Attorney White.
- Mr. Nadeau spoke with Attorney White by telephone sometime during the winter of 2015, and Attorney White agreed to provide a bill for services rendered, and to return the unused portion of the $1,500 retainer.
- Attorney White failed to provide a bill or to return the unused portion of the Nadeaus’ retainer.
- On April 30, 2015, Mr. Nadeau sent a letter by certified mail to Attorney White formally requesting a "final accounting of fees along with any unused portion of the retainer."
- Mr. Nadeau did not receive a response to his April 30, 2015, letter, and he filed a complaint with the Board of Overseers on June 25, 2015.
- As was the case with the Polombo matter, White responded to the Nadeaus’ earlier requests for an accounting of services rendered and return of the retainer only after having the complaint referred to him by Bar Counsel.
- White responded to Bar Counsel regarding Nadeaus’ complaint in a letter dated July 24, 2014 and received by the Board on July 28, 2015, acknowledging that he had been paid the $1,500 retainer and that he had been slow in his response the Nadeaus’ refund request. (The July 24, 2014 date on White’s letter was apparently a typographical error.).
- White advised that workload, staffing turnover and staffing shortages in his office caused the delay.
- Around July 24, 2015, White wrote a letter, also dated July 24, 2014, enclosing a cashier’s check for $1,500 to Mr. Nadeau stating "I acknowledge that I was not timely in responding to the contacts made in the last few months and apologize for same. I feel sincere disappointment in myself personally and professionally for not responding sooner. ’ (Exhibit 9).
- Attorney White’s failure to perform any work in response to being retained by the Nadeaus, his failure to respond to communications from the Nadeaus, his justification for his failure to respond, and his failure to promptly return the unused retainer constituted violations of Maine Rules of Professional Conduct 1.3 (dilatory conduct in representation); 1.4(a) (2)(3) & (4) (communicating with clients); 1.5(i) (reasonably prompt return of unused retainer); 1.16(d) (return of paid but unearned fees upon termination of representation); and 8.4(c) (dishonesty, deceit or misrepresentation).2 There is insufficient evidence in the record for the Court to determine whether, or not, the Nadeaus $1,500 retainer was properly placed in and maintained in a client trust account. Accordingly, the Court can find no violation of the trust account obligation.
- In May of 2016 Attorney White represented DJM Enterprises, LLC (DJM), a limited-liability corporation, in its attempt to reorganize under Chapter 11 of the federal bankruptcy law. A contested hearing was scheduled for May 17, 2016, to address confirmation of the DJM reorganization plan. The hearing was before Federal Bankruptcy Judge Peter G. Cary.
- Bangor Savings Bank and the United States Trustee opposed confirmation of the reorganization.
- In preparation for contested hearings in bankruptcy court, there is a practice for the parties to communicate in advance and prepare a book of exhibits to be presented to the bankruptcy judge at the hearing. Attorney White testified that such a book of exhibits is prepared independent of the electronic filing practices of the bankruptcy court.
- In accordance with the advance preparation of exhibits practice, White forwarded various proposed exhibits for the hearing to other counsel. Included with those exhibits was Exhibit 28 (Exhibit 10A in this proceeding) which purported to be a "Confirmation Affidavit of Deborah J. Miles" indicating that it had been signed and sworn by her, and acknowledged by White, on May 16, 2016. White was indicated as the attorney who had taken his client’s oath and witnessed the signature of the affidavit. A conformed copy of the affidavit, purporting to have been signed, was presented to the Bankruptcy Court as Exhibit 28.
- The book of the twenty-eight exhibits, twenty-six of which were stipulated to be admissible by the parties, was presented to the court at the May 17 hearing. Exhibit 28 was one of two exhibits that were not stipulated by opposing counsel.
- Deborah Miles was present and testified at the hearing, with her testimony consistent with the statements in the affidavit dated May 16.
- On cross-examination, counsel for Bangor Savings Bank presented Miles with Exhibit 28, and Miles testified that she had neither seen nor signed the affidavit.
- Upon further examination by counsel for the United States Trustee and redirect examination by White, Miles testified that she had reviewed the information contained in the affidavit with White by telephone and that she agreed with the content of the affidavit, but that she had never received or reviewed a physical copy of the affidavit. Miles further testified that White had asked her to remind him to have her sign the affidavit when she appeared at the hearing on May 17, but she had neglected to do so.
- The next day, May 18, 2016, Judge Cary filed a complaint with the Board asserting that White’s presenting for the court’s consideration what purported to be a signed and sworn affidavit that White himself had acknowledged was a misrepresentation and false statement to the tribunal.
- At a later date in the bankruptcy proceeding, Judge Cary indicated that he did not consider Attorney White’s actions presenting the purportedly signed affidavit as an exhibit to be a particularly serious violation, "inclusion of the affidavit was inadvertent and certainly not intentional." (Exhibit 15). There had been no prejudice to the proceedings because Miles had appeared and testified to the facts as stated in the affidavit and had been subject to cross-examination.
- Responding to Bar Counsel’s reference to him of Judge Cary’s complaint, White admitted that he had submitted the document purporting to be a signed affidavit as an exhibit, even though it was never actually signed. White asserted that this submission was the result of "inadvertence and oversight" and "was in no way intentional."
- The Court finds that White’s actions on May 16, 2016, presenting for inclusion in the book of exhibits to be presented to the Judge an affidavit that he represented had been signed and sworn to by his client and that indicated that he had taken the client’s oath and witnessed the signature upon the affidavit was a violation of Maine Rules of Professional Conduct 3.3(a) (candor toward a tribunal); 3.4(b) (falsifying evidence); and 4.1(a) (truthfulness in statements to others).
The Court accepts Judge Cary’s observation that while he found it necessary to report these violations in accordance with his ethical obligations as a Judge, the violations were not particularly serious, resulted from inadvertence, and did not in any way prejudice the proceeding because the witness was available to testify and acknowledge the facts in the affidavit through her testimony.
- An individual named Roy Y. Salisbury owns or has a significant interest in at least six organizational entities including partnerships or corporations. Those entities include one called RYS & Company Management, LLC, another called Regulus Corporation, and another called Small Business Development Group Inc. (SBDG).
- At some time in 2015, White spoke with Salisbury regarding initiating a bankruptcy proceeding for SBDG. Email communications in December 2015 (Exhibit 17B) indicated White was being retained "to handle the negotiations on the Darling matters and/or C.11 proceedings if deemed necessary." In their communications, Salisbury and White agreed to a retainer of $25,000 to $30,000, to be paid at a monthly rate of $7,500 to prosecute the bankruptcy proceeding. An initial payment of $7,500 was received by White in December 2015, prior to filing the bankruptcy proceeding.
- On or about January 5, 2016, SBDG, represented by White, filed a petition for relief under Chapter 11 of the Bankruptcy Code in Bankruptcy Court.
- The rules of the Bankruptcy Court require that attorney fees commitments, including commitments made for future payments and funds paid prior to the bankruptcy filing (funds paid "pre-petition"), be disclosed in the bankruptcy filings and that no expenditures from such funds be made until expenditures are approved by the Bankruptcy Court.
- On or about February 5, 2016, SBDG, represented by White, filed an amended application to employ White for its pending Chapter 11 bankruptcy. The amended application indicated that White had been paid $7,500 for legal fees "pre-petition" prior to the filing of the bankruptcy petition. No other payments or commitments for payment by a retainer were indicated in the amended application.
- On or about February 3, 2016, two days before the filing of the amended application, by a check dated February 3, 2016, White’s office was paid an additional $7,500, the second payment of the agreed retainer.
- At different times White contended that this second $7,500 payment to him was an error by SBDG and a gift to SBDG by Regulus Corp. See White agreed stipulations 41-45 in Exhibit 39. Characterizing the payment as a gift was an effort to avoid reporting the payment from Regulus as an obligation of SBDG in bankruptcy filings.
- By Bankruptcy Court Rules, approval of the Bankruptcy Court is required before any funds from the retainer could be paid over to the attorney for services rendered. Without Bankruptcy Court approval, the second $7,500 was deposited into White’s firm’s business operating account, not the firm’s trust account.
- White contends that the deposit of the $7,500 into his operating account was a result of an error by his paralegal. However, White has responsibility for proper supervision and compliance with the Rules of Professional Conduct by his staff and, if the payment into the operating account was an oversight by a staff member, White is responsible, ethically, for that oversight. See Rule of Professional Conduct 5.3.
- The oversight in this case would be particularly egregious because any properly trained staff member of an attorney’s office would know that funds paid as a retainer must initially be deposited in a trust account as required by Rule 1.15(b) subject to later payments into a firm’s operating account only upon proper billing for services — and here upon approval of the Bankruptcy Court. White testified that the paralegal had been working with him for approximately ten years. Therefore, it seems highly unlikely that the choice to deposit the $7,500 second retainer payment into the operating account was an oversight by the paralegal, without White’s knowledge.
- That this deposit into the operating account was intended, and not an oversight, is confirmed by the account statement for the operating account for the month of February 2016. That statement indicates that without the $7,500 payment early in the month, the operating account would have had a significant negative balance through most of the month.
- The Court finds that the deposit of the second $7,500 payment into the firm’s operating account was an intentional act taken or approved by White in violation of Bar Rule 1.15(b) requiring deposit of retainers into trust accounts and in violation of Rules 2016 and 2016-1 of the United States Bankruptcy Court. Rules 2016 and 2016-1 require that (i) payments to attorneys and commitments for future payments, such as retainer agreements, be disclosed in applications to employ attorneys, and (ii) no retainers or other funds paid by debtors in bankruptcy to their attorneys be paid to attorneys for services and thus to operating accounts until payment of such funds is approved by the court.
- White failed to obtain the bankruptcy court’s approval prior to receiving and paying into his operating account the second $7,500 fee and he failed to notify the U.S. Trustee within fourteen days after receipt of the payment into his operating account as required by the Bankruptcy Court Rules.
- Upon learning of the undisclosed and unapproved payment, the Trustee’s office filed a motion for order to show cause with the Bankruptcy Court. White responded to the Trustee’s motion by stating that the deposit of the February payment was made in error, and that he had returned the funds to the debtor "as soon as the error was discovered." White agreed to a consent order with sanctions being entered by the Bankruptcy Court (Fagone, J.) on the Trustee’s motion.
- After the consent order related to the returned $7,500 payment was entered, the Trustee’s office learned, by taking the deposition of Roy Salisbury, that White’s agreed retainer was $25,000 to $30,000, not the $7,500 that White had initially claimed. The total anticipated retainer, $25,000 to $30,000 was required to be disclosed in the original bankruptcy filing, but was not disclosed.
- As a result, the Trustee’s office believed that White had misrepresented the nature of the fee agreement in his original filings with the Bankruptcy Court as well as in his later dealings with the Trustee and the Bankruptcy Court. Consequently, the Trustee filed a complaint with the Board.
- Attorney White responded to Bar Counsel’s reference to him of the Trustee’s complaint asserting that he had not misrepresented the fee agreement and that it had been clear that the debtor was to set aside $7,500 per month to be applied to the fee, with the actual monies to be paid over to White only after court approval. Accordingly, White claimed that the Trustee’s concerns were "unfounded." White’s claim that the Trustee’s concerns were "unfounded" was inconsistent with the fact that prior to the Salisbury deposition, White had never disclosed in any filing with the court that the total agreed retainer was $25,000 to $30,000, and inconsistent with White’s earlier position that the second $7,500 payment was a mistake that had been repaid to the debtor.
- Attorney White’s filings of documents misrepresenting the amount of his agreed retainer and anticipated fee, his payment of retainer fees into his operating account without prior court approval, and his receipt of additional fees around the time of his initial Bankruptcy Court filing without approval of the court or disclosure of the U.S. Trustee were violations of Maine Rules of Professional Conduct 1.5(a) (excessive fee); 3.3(a) (candor toward the tribunal); 4.1(a) (false statement of material fact); and 8.4(c) (deceit or misrepresentation).
- The deposit of the $7,500, which White acknowledges was received as a retainer, into his operating account, instead of his trust account, was a violation of Maine Rule of Professional Conduct 1.15(b) and demonstrates failure to properly supervise staff as required by Rule 5.3.
Based on the findings regarding violations of several Rules of Professional Conduct with regard to Counts I, II and IV of the complaint and findings of minor violations of the Rules of Professional Conduct with regard to Count III of the complaint, the Court must proceed to consider sanctions. The Court’s scheduling order and discussion with counsel at hearing indicated that, after making its findings, the parties presentations should also enable the Court to consider and impose sanctions as part of its disposition of the order after hearing.
Because the Court’s findings indicate some serious and intentional violations of the Maine Rules of Professional Conduct, including some knowingly false statements made to the Bankruptcy Court and to this Court, the Court will not address sanctions without giving the parties further notice and opportunity for hearing on the sanctions issue. At the sanctions hearing the Court will explore further why an attorney with thirty-seven years’ experience in practice, and including very substantial experience with the Bankruptcy Courts and bankruptcy practice would engage in such significant and serious violations of both the Rules of Professional Conduct and the rules and practices of the Bankruptcy Court.
Accordingly, with the findings stated above, the Court will schedule a further hearing to address sanctions. Among other things, at that hearing, the parties should be prepared to (i) discuss whether, in addition to the agreed order entered by Judge Fagone, Attorney White has any prior history of sanctions before any professional disciplinary body or any court; (ii) indicate the practices in his office that apparently led to failure, at least with regard to Counts I and IV, to deposit funds into a trust account despite the requirements of Rule of Professional Conduct 1.15; and (iii) make proposals regarding appropriate sanctions.
A date for the hearing on sanctions will be set by a separate order.
Dated: July 30, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1The referenced stipulated facts include stipulated facts filed in this proceeding by a letter dated June 29, 2018, and stipulated facts agreed to by Attorney White during bankruptcy litigation and appearing in Exhibit 39 filed in this proceeding. Exhibit 39 was not an agreed upon exhibit, but the stipulations agreed to by White and offered by the Board may be considered by the Court pursuant to M.R. Evid. 801(d)(2).
2Recognizing the imperfections of the fact-finding process, the Court is reluctant to find testimony false simply because that testimony is inconsistent with other evidence. Here, however, Attorney White’s testimony which the Court finds to be false was contrary to an agreed stipulation of fact and was not supported by any other statement offered during the two years this matter has been pending.
Board of Overseers of the Bar v. James M. Whittemore
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Docket No.: BAR-18-009
Issued by: Maine Supreme Judicial Court
Date: August 7, 2018
Respondent: James M. Whittemore
Bar Number: 007767
Order: Immediate Interim Suspension
Disposition/Conduct: Competenence; Diligence; Communication; Fees; Conflict-of-Interest: Current Clients; Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts; Candor Toward the Tribunal; Misconduct; Registration
M. Bar R. 24
By filing dated July 17, 2018, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order of Interim Suspension of James M. Whittemore from the practice of law in the State of Maine. Incorporated with the Board's Petition was an Affidavit of Bar Counsel with related exhibits.
Based upon the Board submissions, the Court concludes that the submitted evidence supports a finding that Attorney Whittemore has committed multiple violations of the Maine Rules of Professional Conduct. Specifically, the Court finds that the Board's evidence demonstrates Attorney Whittemore's violations of M. R. Prof. Conduct 1.1; 1.3; 1.4(a); 1.5(a); 1.7(a)(2); 1.15(a)(b); 3.3(a)(1); 4.1(a); and 8.4(a)(b)(c)(d), and Maine Bar Rule 4(b).
Under the facts presented by the Board, this Court concludes that Attorney Whittemore's misconduct serves as an imminent threat to clients, the public and to the administration of justice.
Effective immediately, this Court ORDERS that Attorney James M. Whittemore shall now be suspended from the practice of law in Maine, until further Order of this Court. The Court further ORDERS that Attorney Whittemore shall vacate his law office(s) (including any home office), immediately cease practicing law, immediately cease operations of any and all of his websites, Facebook account(s) and any other form of advertising of his legal services during the period of his suspension. Additionally, Attorney Whittemore shall surrender possession and control of all client files, the keys to his law offices, his law office operating and client trust bank accounts, and all computer and mobile devices/ equipment utilized by him for the practice of law. In that regard, Attorney Whittemore shall provide all necessary login and password information to the Board of Overseers (and/ or the Court-Appointed Receiver) and surrender any such items or information listed above as soon as requested by the Board or the Court's Receiver. Finally, Attorney Whittemore is prohibited from service as a fiduciary and he is ORDERED to relinquish any position as a fiduciary and take steps to receive any discharge from such fiduciary service.
Under separate order the Court shall appoint a Receiver to wind down the law office and protect the interests of Attorney Whittemore’s clients.
Dated: August 7, 2018
Nancy D. Mills
Justice, Maine Superior Court
Board of Overseers of the Bar v. James M. Whittemore
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Docket No.: Bar-18-009
Issued by: Maine Supreme Judicial Court
Date: August 7, 2018
Respondent: James M. Whittemore
Bar Number: 007767
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
This Court Orders the following:
As of this date, Judy A.S. Metcalf, Esq., and the law firm of Eaton Peabody, is appointed as the Receiver of James M. Whittemore's law practice. As such Attorney Metcalf, with any necessary assistance from the Board of Overseers, shall have the sole authority to:
1. Take over the Whittemore law office and secure the professional files, client funds and file property of that law office;
2. Obtain signatory authority over all Whittemore law office bank accounts (IOLTA and operating/ office accounts);
3. Obtain access to Mr. Whittemore's computer hardware and software; including any mobile devices (together with required passwords), and any post office boxes to secure all law office or legal mail;
4. Inventory the open and if necessary, the closed client files;
5. Give priority attention to client matters which are open and time sensitive;
6. Notify all courts that Attorney Metcalf is serving as Mr. Whittemore's Receiver until further order of this Court;
7. Notify clients or former clients that Attorney Metcalf is serving as Receiver to the Whittemore law practice and provide opportunity for clients to consult with the Receiver or retrieve their property; and
8. The Receiver shall access and utilize Mr. Whittemore's operating and IOLTA accounts to prudently and appropriately manage the practice. The Receiver may pay expenses, as she deems appropriate given available funds or anticipated receivables to the firm. The Receiver may also hire temporary office staff and take other action as necessary and appropriate to manage the Whittemore law practice.
As a service to the bar, Attorney Judy A.S. Metcalf acknowledges that she shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) at six-month intervals, from Mr. Whittemore's law practice, Attorney Metcalf may be reimbursed from those assets. The Receiver shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, the Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Whittemore and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Whittemore, the Board of Overseers of the Bar may be an alternate payment source for those disbursements.
Attorney Metcalf shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32.
Attorney Metcalf, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
Furthermore, Attorney Metcalf may be engaged by any former client of Mr. Whittemore's provided that the Receiver informs such client in writing that the client is free to choose to employ any attorney, and that the Court's appointment order does not mandate or recommend the Receiver's employment by the client.
The Receiver is subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8; and 1.9 regarding conflicts of interest. A client's retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Metcalf shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers of the Bar, c/o Special Bar Counsel Angela Morse, Esq.
Dated: August 7, 2018
Nancy D. Mills
Justice, Maine Superior Court
Board of Overseers of the Bar v. Melissa Coulombe Lalumiere, Esq.
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Docket No.: GCF# 18-031
Issued by: Grievance Commission
Date: August 13, 2018
Respondent: Melissa Coulombe Lalumiere, Esq.
Bar Number: 009242
Order: Reprimand
Disposition/Conduct: Communications With Person Represented by Counsel and Limited Representation
M. Bar R. 13(e)
On August 13, 2018, with due notice and pursuant to Maine Bar Rule 13(e), Panel B of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Melissa Coulombe Lalumiere, Esq. (Attorney Lalumiere). The Board of Overseers of the Bar (the Board) commenced this proceeding by the May 16, 2018 filing of a Stipulated Disciplinary Petition.
At the hearing, Attorney LaLumiere appeared pro se and the Board was represented by Deputy Bar Counsel Aria Eee. Also present was the complainant, David C. Morse Esq.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advanced review and consideration. Bar Counsel also provided Attorney Morse with a copy of the parties’ proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following findings and disposition:
Respondent Melissa Coulombe Lalumiere, Esq. (Attorney Lalumiere) of Cumberland, ME has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, her conduct is governed by the Maine Rules of Professional Conduct (MRPC) and she is subject to the Maine Bar Rules. Attorney Lalumiere was admitted to the Maine Bar in 2002 and she is currently a solo practitioner.
Attorney Lalumiere’s practice areas include landlord tenant disputes. It was within that context that Attorney Morse filed a grievance complaint against Attorney Lalumiere. In that regard, on one occasion during a November 2017 court event, Attorney Lalumiere had direct contact with Attorney Morse’s client. She did so without Morse’s knowledge or consent to the contact. As a result of Attorney Lalumiere’s unauthorized contact with the represented party, her actions constituted a violation of MRPC 4.2. Attorney Lalumiere acknowledges that she engaged in the violation and has assured the Grievance Commission that she will not engage in future professional misconduct.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Lalumiere agrees that she did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer's misconduct; and
- the existence of any aggravating or mitigating factors.
In this matter, Attorney Lalumiere agrees that her misconduct violated duties that she owed to the public and profession. Although Attorney Lalumiere reports that she did not intentionally engage in the unauthorized contact with Attorney Morse’s client, she knew or should have known that MRPC 4.2 prohibits any unauthorized contact with a represented party. The Grievance Commission notes that the prohibition against such contact exists to protect persons from possible overreaching by lawyers who are participating in the matter and or the uncounseled disclosure of information relating to the representation. See M. R. Prof. Conduct 4.2 Comment [1]. Notwithstanding Attorney Lalumiere’s unauthorized contact, there was reportedly little to no injury to Attorney Morse’s client resulting from the incident.
Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record. Additionally, as regards aggravating factors, Attorney Lalumiere has substantial experience in the practice of law. In mitigation, Attorney Lalumiere has no disciplinary record, she has admitted her misconduct and has been cooperative throughout the prosecution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Public Reprimand is the appropriate sanction to impose. Therefore, the Commission accepts the agreement of the parties, including Attorney Lalumiere’s separately executed waiver of the right to file a Petition for Review, and concludes that the final disposition of this case is a REPRIMAND to Melissa Lalumiere, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(1) and 21(b)(5).
Date: August 13, 2018
Vendean V. Vafiades, Esq., Panel Chair
Gretchen L. Jones, Esq., Panel Member
Michael W. Arthur, LCPC, Public Member
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: June 21, 2018
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Judgment After Remand
Disposition/Conduct: Reinstatement Petition Denied
Edwin R. Jonas III filed a petition for reinstatement to the Maine bar, which I denied in an order dated June 22, 2015. Jonas appealed that order to the Law Court and, after issuing an initial opinion affirming that order, the Court granted Jonas's motion for reconsideration. In re Jonas, 2017 ME 115,¶ 17, 164 A.3d 120. In its order granting Jonas’s motion, the Court stated,
Having considered the arguments of Jonas and the Board, we are persuaded that we must amend our opinion to authorize a limited remand for the single justice to consider whether to admit, as evidence upon which reasonable people would rely, (1) specific evidence that Jonas offered and the justice excluded based on the Rules of Evidence and that was not otherwise admitted at trial, and (2) at the discretion of the single justice, evidence of events or decisions that occurred after the close of evidence in the original trial before the single justice.
After determining whether any previously excluded–or new–evidence should be admitted, the single justice must decide whether any newly admitted materials or recent developments alter any aspect of her decision.
In re Jonas, No. Cum-15-345 (Me. Law Ct., June 6, 2017) (Saufley, C.J.).
After the revised opinion was certified on June 23, 2017, I held a July 12, 2017, conference with James M. Bowie, Esq., counsel for Jonas, and Aria Eee, Esq., Deputy Bar Counsel. At that time, I scheduled a hearing to be held on September 29, 2017, to allow the parties an opportunity to present whatever previously–excluded or new evidence they wished to offer. In the five months that followed, however, the hearing was continued multiple times due to significant personal challenges experienced by counsel for both parties.
On January 2, 2018, counsel for Jonas filed a motion in limine, asking that the court "expand the record on remand, in order to comply with the basic [tenets] of fair play, justice, and ... procedural and substantive due process rights" by allowing him to "supplement the record with additional pleadings and orders from courts addressing litigation involving Mr. Jonas from 1995 to the present, affidavit and other testimony from trial witnesses, and to allow testimony from additional witnesses." Bar Counsel filed an objection and, in an order dated January 23, 2018, I denied the motion, noting that the Law Court had established the scope of the remanded case and that I intended to comply with those parameters.
Thereafter, both counsel again faced some significant personal challenges, causing some additional delay. Counsel conferred with the court and agreed that, in lieu of a hearing, each side would submit its exhibits and a written closing argument. Bar Counsel filed six exhibits on April 5, 2018, which were the following decisions of other courts:
On April 6, 2018, Jonas filed his two exhibits–a transcript from an April 23, 2008, United States Tax Court proceeding and a transcript from a November 18, 2002, deposition of Linda Jonas in the Florida Circuit Court case of Linda Jonas v. Holly Schuttler. Jonas filed his closing argument on April 25, 2018, and the Board filed its closing argument on May 9, 2018.
Before I address the merits of Jonas’s petition, I must clarify the criteria for reinstatement by which I considered this matter on remand. When my original decision was issued on June 22, 2015, former M. Bar R. 7.3(j)(5) (Tower 2014) set out the criteria for reinstatement.1 I therefore evaluated Jonas’s petition according to the criteria for reinstatement in Rule 7.3(j)(5) in effect at the time.
Eight days later, on July 1, 2015, the amended Maine Bar Rules took effect. M. Bar R. 33. Among other amendments, former Rule 7.3(j) was abrogated and the bulk of its provisions were incorporated into multiple of the current Maine Bar Rules. See M. Bar R. 4, 28, 29 Reporter’s Notes to 2015 amend. Moreover, the Maine Bar Rules as amended in 2015 expressly state that its provisions must be applied to "all new and pending complaints and proceedings." M. Bar R. 33; see M. Bar R. 33 Reporter's Notes to 2015 amend. ("To ensure fairness and consistency, the committee determined that these Rules must apply not only to new complaints brought after the rules go into effect, but also to any complaints initiated prior to the effective date, as well as to any ongoing proceedings. In addition, Rule 33 provides that all attorneys seeking reinstatement following the effective date, including those disciplined under the former Maine Bar Rules, must comply with the reinstatement provisions of these Rules."). Thus, since July 1, 2015, the criteria for reinstatement for a disciplinary suspension of more than six months have been those set out in M. Bar R. 29(e), and it is these criteria according to which I now evaluate Jonas’s petition on remand.2
Rule 29 requires that petitions for reinstatement must be evaluated according to a list of criteria that closely resembles the list of factors in former Rule 7.3(j)(5):
(e) Criteria for Reinstatement. A petitioner may be reinstated only if the petitioner meets each of the following criteria:
(1) the petitioner has fully complied with the terms and conditions of all prior disciplinary orders issued in Maine or in any other jurisdiction except to the extent they are abated under Rule 30, unless such suspension, disbarment, or discipline is solely the result of reciprocal action resulting from disciplinary action taken by Maine authorities;
(2) the petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;
(3) if the petitioner was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the petitioner’s misconduct, the petitioner shall not be reinstated unless:
(A) the petitioner has pursued appropriate rehabilitative treatment;
(B) the petitioner has abstained from the use of alcohol or other drugs for at least one year; and
(C) the petitioner is likely to continue to abstain from alcohol or other drugs;
(4) the petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred;
(5) the petitioner has not engaged in any other professional misconduct since suspension or disbarment;
(6) notwithstanding the conduct for which the petitioner was disciplined, the petitioner has the requisite honesty and integrity to practice law;
(7) the petitioner has met the CLE requirements of Rule 5(a)(l) for each year the attorney has been suspended or disbarred, but need not complete more than 22 hours of approved credit hours for that entire period of absence from practice, provided that (i) no more than one half of the credit hours are earned through in-house courses, self study, or a combination thereof; and (ii) at least two credit hours are primarily concerned with the issues of professionalism as defined in Rule 5(a)(l); and
(8) In addition to all of the requirements in this provision, the attorney shall comply with Rule 4(a) and (b), and remit to the Board an arrearage registration payment equal to the total registration fee that the attorney would have been obligated to pay the Board under Rule 4(a) and (b) had the attorney remained actively registered to practice in Maine.
M. Bar R. 29(e). Although the format of Rule 29(e) differs from that of former Rule 7.3(j)(5), the import of both versions is that it is the petitioner’s burden to establish his compliance with the regulatory, financial, educational, and moral conditions for again becoming an active member of the Maine Bar such that the public interest is adequately protected by his reinstatement.3 Indeed, as the Reporter’s Notes for the 2015 amendments state, much of current M. Bar R. 29 is "substantially in accord with" former Rule 7.3(j), and the language of Rule 29(e) in particular is "[a]nalogous" to former Rule 7.3(j)(5). M. Bar R. 29 Reporter’s Notes to 2015 amend.
After a review of the new exhibits and the arguments of counsel, as well as the evidence and arguments presented in 2015, I deny Edwin Jonas's petition for reinstatement to the Maine bar. The new evidence presented by the parties confirms that Jonas and his ex-wife have devoted large portions of their lives to getting revenge for whatever slights or misdeeds the other committed. It adds little, however, to the issue to be decided in this matter-that is, Jonas's demonstration of the evidence necessary for reinstatement. Jonas has failed to satisfy, by clear and convincing evidence, each of the criteria for reinstatement set out in M. Bar R. 29(e).4
Edwin Jonas’s petition for reinstatement to the Maine bar is hereby DENIED.
Dated: June 21, 2018
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
1Pursuant to M. Bar R. 7.3(j)(5) (Tower 2014), it was Jonas’s burden, as the petitioning party, to establish, by clear and convincing evidence, the necessary requirements for reinstatement:
[T]he petitioner ... shall have the burden of presenting clear and convincing evidence demonstrating the moral qualifications, competency, and learning in law required for admission to practice law in this State. The petitioner shall also offer clear and convincing evidence that it is likely that reinstatement will not be detrimental to the integrity and standing of the Bar, the administration of justice, or to the public interest.
Rule 7.3(j)(5) further listed a series of "[f]actors to be considered as to the petitioner’s meeting that burden." M. Bar R. 7.3(j)(5) (Tower 2014).
2Although M. Bar R. 29(e) applied to this matter as of July 1, 2015, both parties continued to refer and cite to former Rule 7.3(j)(5) in these proceedings on remand. Further, notwithstanding the Law Court’s reference to former Rule 7.3(j)(5) in discussing my consideration of Jonas’s petition on remand, In re Jonas, 2017 ME 115, ¶ 40, 164 A.3d 120, I assume that the Court intended that I evaluate the matter in accordance with M. Bar. R. 29(e), as is required by M. Bar. R. 33.
3Unlike former Rule 7.3(j)(5), current Rule 29 does not explicitly state that the petitioner must meet this burden according to the clear and convincing standard of proof, but I can discern no reason why the clear and convincing standard is not equally applicable to these proceedings on remand.
4Even if former Rule 7.3(j)(5) continued to apply to this matter, 1 would conclude that Jonas failed to meet his burden for reinstatement according to its criteria.
Board of Overseers of the Bar v. Jonathan C. Hull
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Docket No.: BAR-18-10
Issued by: Maine Supreme Judicial Court
Date: August 23, 2018
Respondent: Jonathan C. Hull
Bar Number: 001584
Order: Immediate Interim Suspension
Disposition/Conduct: Conflict of Interest: Current Clients; False Statement to a third party, Misconduct; Truthfulness in Statements to Others; Misconduct: Violation of MBR or MRPC, Illegal Conduct, Dishonest Conduct, Conduct Prejudicial to the Administration of Justice
M. Bar R. 24
By filing dated August 10, 2018, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order of Interim Suspension of Jonathan C. Hull from the practice of law in the State of Maine. Incorporated with the Board’s Petition was an Affidavit of Bar Counsel with related exhibits.
Attorney Hull filed a response, through counsel, on August 15, 2018. Attorney Hull did not submit any rebuttal evidence but has argued that the Board’s position is not supported. The court held a conference of all counsel on August 21, 2018. Following the conference, the Board filed an additional affidavit, containing essentially the same information set forth in the original filing.
Upon consideration of the materials submitted, including Attorney Hull’s objections, the Court concludes that the submitted evidence supports a finding that Attorney Hull has committed multiple violations of the Maine Rules of Professional Conduct. Notwithstanding Attorney Hull’s objection, the Court is satisfied that the quality of the evidence is a sufficient basis upon which to issue this order. Specifically, the Court finds that the Board’s evidence demonstrates Attorney Hull’s violations of at least M. R. Prof. Conduct 1.7(a)(2), 4.l(a); and 8.4(a)(b)(c)(d).
Under the facts presented by the Board, this Court concludes that Attorney Hull’s misconduct serves as an imminent threat to clients, the public and to the administration of justice.
Effective 5 p.m. on August 24, 2018, this Court ORDERS that Attorney Jonathan C. Hull shall now be suspended from the practice of law in Maine, until further Order of this Court.
The Court further ORDERS that Attorney Hull shall vacate his law office(s) (including any home office), cease practicing law, and cease operations of any and all of his websites, Facebook/ social media account(s) and any other form of advertising of his legal services during the period of his suspension.
Additionally, Attorney Hull shall immediately surrender possession and control of all client files, the keys to his law offices, his law office operating and client trust bank accounts, and all computer and mobile devices/equipment utilized by him for the practice of law. In that regard, Attorney Hull shall provide all necessary login and password information to the Court–Appointed Receivers and surrender any such items or information listed above as soon as requested by the Board or the Court’s Receivers. He shall also cooperate with the Co–Receivers in all aspects so as to protect the interests of his clients.
Attorney Hull is prohibited from removing any funds, files, data, check books, financial records/bank information, client property, computer hardware/ software or any client related or law office related items, including in the period from the time of this order until the suspension is effective as well as thereafter. With advance request of the Receivers, Attorney Hull may return to the law office, accompanied by a Receiver (or agent thereof) to retrieve his personal belongings.
Finally, Attorney Hull is prohibited from service as a fiduciary and he is ORDERED to relinquish any position as a fiduciary and take steps to receive any discharge from such fiduciary service.
Under separate order the Court shall appoint Co–Receivers to wind down the law office and protect the interests of Attorney Hull’s clients.
Dated: August 23, 2018
Valerie Stanfill, by designation
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jonathan C. Hull
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Docket No.: BAR-18-10
Issued by: Maine Supreme Judicial Court
Date: August 23, 2018
Respondent: Jonathan C. Hull
Bar Number: 001584
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
This Court Orders the following:
As of this date, David Levesque, Esq. and the Board of Overseers of the Bar (the Board) are appointed as Co–Receivers of (suspended attorney) Jonathan C. Hull’s law practice. As such Attorney Levesque and the Board, shall have the sole authority to:
- Take over the Hull law office and secure the professional files, client funds and file property of that office as well as secure the law office itself;
- Obtain signatory authority over all Hull law office bank accounts (IOLTA and operating/office accounts) credit lines and credit cards;
- Obtain access to Mr. Hull’s computer hardware and software; including any mobile devices (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and if necessary, the closed client files;
- Give priority attention to client matters which are open and time sensitive;
- Notify all courts that Attorney Levesque and the Board are serving as Mr. Hull’s Co–Receivers until further order of this Court;
- Notify clients or former clients that Attorney Levesque is serving as a Receiver to the Hull law practice and provide opportunity for clients to consult with Attorney Levesque or retrieve their property; and
- The Receivers shall access and utilize Mr. Hull’s operating and IOLTA accounts to prudently and appropriately manage/wind down the practice. The Receivers may pay expenses, as they deem appropriate given available funds or anticipated receivables to the firm. The Receivers may also hire temporary office staff and take other action as necessary and appropriate to manage the Hull law practice.
As a service to the bar, Attorney Levesque acknowledges that he shall serve as Co–Receiver on a pro bono basis, although if there are sufficient assets (including receivables) at six-month intervals, from Mr. Hull’s law practice, Attorney Levesque may be reimbursed from those assets. The Receivers shall submit a quarterly written report to the Court containing a record of time worked.
Likewise, the Receivers shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Hull and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Hull, the Board may be an alternate payment source for those disbursements.
Attorney Levesque and the Board shall act as Co–Receivers until discharged by the Court either by Motion or in accordance with M. Bar R 32.
Attorney Levesque and the Board, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
Furthermore, Attorney Levesque may be engaged by any former client of Mr. Hull’s provided that Attorney Levesque informs such client in writing that the client is free to choose to employ any attorney, and that the Court’s appointment order does not mandate or recommend Attorney Levesque’s employment by the client.
The Receivers are subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8; and 1.9 regarding conflicts of interest. A client’s retention of Attorney Levesque as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Levesque and the Board shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receivers shall file a status report with the Court.
Dated: August 23, 2018
Valerie Stanfill, by designation
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Gary M. Prolman, Esq.
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Docket No.: BAR-14-12
Issued by: Law Court
Date: August 28, 2018
Respondent: Gary M. Prolman, Esq.
Bar Number: 007253
Order: Judgment vacated. Remanded for further proceedings consistent with this opinion.
Disposition/Conduct: Remanded for further Proceedings
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 128
Docket: Cum-17-430
Argued: June 12, 2018
Decided: August 28, 2018
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Concurrence: JABAR, MEAD, and HJELM, JJ.
Concurrence: SAUFLEY, C.J., and GORMAN and HUMPHREY, JJ.
v.
GARY M. PROLMAN
PER CURIAM
[¶1] The Board of Overseers of the Bar appeals from the judgment of a single justice of the Supreme Judicial Court (Alexander, J.) concluding that Gary M. Prolman violated the Maine Rules of Professional Conduct and the attorney’s oath, 4 M.R.S. § 806 (2017), and suspending him from the practice of law for six months. The Board argues that the court abused its discretion by imposing a six-month suspension without considering and applying the disciplinary framework set out in the American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar Ass’n 1992) (ABA Sanction Standards).1 Although we are evenly split in determining the basis of the error, we unanimously agree that the judgment must be vacated and the matter remanded for a redetermination of the sanction.2
A. Factual Findings
[¶2] The court made the following factual findings, which are supported by the record. See Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268, 1270 (Me. 1993).
[¶3] In June 2014, as a result of his guilty plea to, and resulting conviction of, federal charges of conspiracy to launder money and aiding and abetting, 18 U.S.C.S. §§ 1956(a)(1), (h) 1957(2) (LEXIS through Pub. L. No. 115-231), Prolman was suspended indefinitely from the practice of law in Maine. Following his guilty plea, Prolman received a sentence of twenty-four months’ imprisonment and twenty-four months’ supervised release. In November 2015, the Board filed a motion seeking further disciplinary action against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. After a hearing on those motions in February 2016, a single justice of the Supreme Judicial Court (Alexander, J.) issued a decision concluding that Prolman had violated M.R. Prof. Conduct 8.4(a)-(d) but nonetheless ordering the termination of Prolman’s suspension as of July 1, 2016, thereby reinstating him to the practice of law.3 Pursuant to that order, Prolman’s reinstatement and continued active practice was conditioned upon his compliance with the terms and conditions of his federal supervised release. The Board did not appeal from that order.
[¶4] In late 2016, the woman who later filed the complaint in this matter contacted Prolman and asked him to represent her in two separate matters. One of those matters involved an outstanding warrant from Florida for the woman’s arrest after she was charged with theft. Prolman agreed to represent the woman for a flat fee and successfully resolved the matter. Prolman also agreed to assist her in having the period of probation arising from a felony drug conviction terminate early. In March 2017, Prolman arranged for early termination of her probation, effective in June 2017, provided that his client complied with terms of her probation until that time. Prolman received another flat fee to represent her in that matter.
[¶5] Beyond the two matters for which Prolman was retained, the woman also discussed with Prolman whether he could assist her with a third matter. At the time, criminal charges for sex trafficking women, including Prolman’s client, were pending against an individual in Massachusetts. Because the client was concerned about the risks associated with testifying against that individual, and because she wanted to put her history of sex trafficking victimization behind her, the client asked Prolman to assist her in arranging to avoid testifying in that matter.
[¶6] At the time the client retained Prolman, she was living with a boyfriend. The boyfriend was controlling and abusive; the client gave her boyfriend the money she earned from her job, and in return, he paid her expenses, including the flat fees paid to Prolman for his representation. The boyfriend also paid for and controlled the client’s cell phone. On at least two occasions in early 2017, the boyfriend assaulted the client. Although law enforcement officials had indications that the assaults had occurred, the assaults were not prosecuted because the client indicated that she would refuse to testify against her boyfriend.
[¶7] On the evening of March 26, 2017, the client’s boyfriend savagely assaulted her at their apartment. In addition to causing other injuries, he broke bones in her face and attempted to strangle her, leaving marks on her throat. The client fled to another residence and the police arrested the boyfriend.
[¶8] On March 27, 2017, law enforcement authorities anticipated that the boyfriend would be bailed and would return to the apartment that he and the client shared. As such, they believed that it was necessary that the client promptly find other accommodations where her boyfriend would not have access to her. At the time, the client had no money and no one in the community to whom she could turn for assistance.
[¶9] On March 27, Prolman was in Florida, preparing to return from a ten-day vacation. Prolman and the client spoke by phone on several occasions. During these calls, she apparently described the assault and informed Prolman of her need to find safe accommodations. Prolman also spoke with the deputy who was the client’s diversion supervision officer. Prolman indicated to the deputy that there was an apartment above his law office in Saco where the client could stay. The impression Prolman conveyed to the deputy was that the apartment was an otherwise vacant apartment where the client could stay, by herself, until more permanent living arrangements could be found.
[¶10] In fact, the apartment above Prolman’s law office was Prolman’s residence and had three bedrooms and one bathroom. The first bedroom, located next to the only bathroom on that floor, was occupied by Prolman. The second bedroom was occupied by another individual who was not then present. The third bedroom was where the client would stay. Because the deputy did not know that Prolman lived in the apartment and because, from the deputy’s perspective, no other living arrangement was available and a living arrangement for the client was urgently needed, the deputy agreed to place the client in the apartment above Prolman’s law office. The deputy arranged for the client to travel to the apartment where, by prior arrangement, Prolman’s office assistant had left directions for the client to get into the apartment.
[¶11] Prolman arrived home from Florida late in the evening of March 27 or very early in the morning on March 28. During the day of March 28, Prolman purchased a cell phone for the client that was added, as a second phone, to Prolman’s cell phone account. The cell phone was intended to provide the client with a means of communication that was not known to or accessible by her abusive boyfriend. Prolman also assisted his client in obtaining a job as a waitress at a local restaurant.
[¶12] On March 29, Prolman and the client met with law enforcement officials and probation officers to discuss the client’s probation status and the prosecution of her abusive boyfriend. At the meeting, the fact that the client was living in an apartment above Prolman’s law office was discussed, but at no point did Prolman or his client indicate that Prolman was also residing at the apartment. Had she learned that Prolman was living at the apartment, the client’s diversion officer would have acted to terminate that living arrangement. Because Prolman’s conditions of supervised release prohibited him from associating with felons, except for providing service as an attorney, Prolman’s federal probation officer also would have objected to Prolman allowing the client, who had a felony drug conviction, to live with him.
[¶13] When he arranged for his client to live in his apartment, Prolman was aware of his client’s social history, history of abuse, submissiveness to men, and vulnerability to abusive physical and sexual relationships. Despite this knowledge, on more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman’s sexual acts as "gross." Although she did not consent, she also did not communicate her objection to Prolman’s sexual acts, simply submitting to what Prolman demanded as she had done in past relationships with men who had taken advantage of her vulnerability.
[¶14] Pursuant to the client’s intensive supervision as part of the diversion program, the deputy was in regular contact with the client while she was residing at Prolman’s apartment. At no time while the client was residing in Prolman’s apartment did the deputy receive any indication that there was reason to be concerned about the relationship between Prolman and the client. Consistent with the client’s past practice of minimizing or not disclosing problems she had with men abusing or taking advantage of her during the course of her probation supervision, the client did not disclose Prolman’s actions until she moved out of the apartment.
[¶15] On April 10, the client, with the assistance of her employer, acquired a vehicle. That day, Prolman prepared dinner for his client, which they shared with glasses of wine. The meal was festive, and its purpose was to celebrate the client’s increasing independence. Late that evening, Prolman approached the client in her bedroom and attempted to initiate sexual relations with her. She refused, and he left the room. The next day, April 11, the client moved out of the apartment. Prolman and the client did not have in-person contact again.
[¶16] When Prolman discovered that the client had moved out of his apartment, he contacted her through text messages and asked, in friendly-sounding words, where she was and whether she was "alright." The client responded to those text messages, indicating that she wanted to terminate their attorney/client relationship and would handle her pending probation matter on her own. Approximately two weeks later, by a motion dated April 26, 2017, Prolman sought and was granted leave to withdraw from representing the client. The motion to withdraw asserted that the client had been in compliance with the terms of her probation, and that the hearing for early termination of her probation-to which the State had already agreed-could proceed without further appearance of counsel.
[¶17] During the time his client was residing at the apartment, Prolman consumed and provided his client with wine. Prolman’s conditions of supervised release prohibited his use or possession of alcoholic beverages, and a violation of those conditions also would be a violation of the March 17, 2016, disciplinary order requiring compliance with the terms of his supervised release.4
B. Procedural History
[¶18] On May 26, 2017, the Board filed a petition for Prolman’s interim suspension pursuant to Maine Bar Rule 24, alleging that Prolman violated Maine Rules of Professional Conduct 1.5(a), 1.7(a)(2), 1.16(a)(1), 2.1, 3.4(c), 8.4(a), (d), and the attorney’s oath, 4 M.R.S. § 806.5 The court held a hearing on the matter beginning on August 30, and evidence was heard over the course of three days. During closing argument, the Board argued that the court should consider the ABA Sanction Standards in imposing Prolman’s sanction, and specifically referenced Standards 4.3, 5.2, 6.1, and 6.3.
[¶19] On September 14, 2017, the court issued the order that is the subject of this appeal, making numerous findings of fact and concluding that the Board had proved, by a preponderance of the evidence, that Prolman violated M.R. Prof. Conduct 1.7(a)(2), 2.1, 8.4(a), 8.4(d), and the attorney’s oath, 4 M.R.S. § 806. See M. Bar R. 14(b)(4). The court also stated that "[d]uring closing argument, Bar counsel argued that violations of Rules of Professional Conduct not indicated in the initial petition, specifically violations of Rules of Professional Conduct 4.3, 5.2, 6.1, and 6.3(1), were also being asserted." However, the court concluded that the Board had not proved violations of those rules.
C. Sanctions
[¶20] After finding the violations, the court considered what would be the appropriate sanction for Prolman’s violations. It observed that, as articulated in comment 12 to Rule 1.7, "Maine has not adopted the ABA Model Rules [of Professional Conduct’s] categorical prohibition on an attorney forming a sexual relationship with an existing client . . . ." M.R. Prof. Conduct 1.7 cmt. (12). For that reason, as well as others, the court concluded that opinions from other jurisdictions addressing attorney discipline for sexual activity with clients-which the Board had submitted to the court-were "not particularly helpful in determining the appropriate sanction" for Prolman.
[¶21] The court further observed that he was required to apply Maine Bar Rule 21(c) in determining Prolman’s sanction. Rule 21(c) provides,
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
[¶22] Pursuant to Rule 21(c)(1), the court concluded that "by initiating a sexual relationship with his client and by providing her alcoholic beverages to consume, Prolman violated duties owed to his client and the legal system." In determining Prolman’s state of mind pursuant to Rule 21(c)(2), the court reasoned that "Prolman’s actions in his treatment of his client and in his failure to disclose to her support team that she would be living with him was negligent and reckless, though probably not so well thought out or planned in advance sufficiently to be considered intentional." Addressing the injury caused by Prolman’s misconduct pursuant to Rule 21(c)(3), the court concluded that "[i]mposing oneself sexually on a nonconsenting, vulnerable, and submissive person inevitably causes psychological injury to the person subject to such advances and caused psychological injury to the client in this case."
[¶23] Finally, in determining aggravating and mitigating factors for Prolman’s sanction pursuant to Rule 21(c)(4), the court included as mitigating factors the facts that (1) "Prolman’s professional services were successful in achieving the client’s objectives in the two cases for which he was retained"; (2) he got "involved in trying to help his client reestablish her independence after her necessary separation from her dangerously abusive boyfriend"; and (3) "[h]e arranged for her to get a new cell phone, and he arranged for her to get a job." The court’s recitation of aggravating factors included the facts that (1) Prolman’s "effort to help his client became misguided when he had her move into his apartment and then initiated the sexual relationship that took advantage of the living arrangement and his client’s vulnerability"; (2) "[t]he injury caused by Prolman’s conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life;" and (3) he "placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked."
[¶24] After considering the factors expressly contained in Rule 21(c), the court imposed a six-month suspension from the practice of law, effective November 1, 2017. The Board’s timely appeal followed. See M.R. App. P. 2B(c)(1); M. Bar R. 13(g)(4).
[¶25] We all agree that the sanctions imposed were simply insufficient and represent an abuse of discretion. Three of us would conclude that the ABA Sanction Standards have been engrafted onto the Maine Rules of Professional Conduct, and that the court erred as a matter of law and therefore abused his discretion in failing to apply those Standards. Three of us would look to those Standards for guidance but would not determine that they have been wholly engrafted into the Maine Rules.
[¶26] Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to apply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney.
[¶27] Because we are evenly divided on the analysis, we do not today announce new law on the interpretation of Maine Bar Rule 21(c). All of us, however, concur in the result of vacating the six-month suspension. The entry is:
Sanction vacated. Remanded to the court for a de novo imposition of sanctions consistent with paragraph 26 of this opinion.
JABAR, J., with whom MEAD and HJELM, JJ., join, concurring.
[¶28] The Board contends that Maine Bar Rule 21(c) incorporates the framework and methodology set forth in the ABA Sanction Standards, and that the court therefore erred in imposing a six-month suspension on Prolman without considering and applying those Standards. The Board further asserts that, upon proper application of the ABA Sanction Standards to the facts of this case, a more severe sanction was warranted. We agree, and for the following reasons, we would conclude that the court abused his discretion by failing to apply the ABA Sanction Standards when imposing Prolman’s sanction.
[¶29] We interpret the Maine Bar Rules de novo as a matter of law, and we "review for clear error the findings of fact that determine the applicability of the rule." Bd. of Overseers of the Bar v. Warren, 2011 ME 124, ¶ 25, 34 A.3d 1103. The propriety of a sanction imposed by a single justice is reviewed for an abuse of discretion. In re Dineen, 380 A.2d 603, 605 (Me. 1977). "Review for an abuse of discretion involves resolution of three questions: (1) are factual findings, if any, supported by the record according to the clear error standard; (2) did the court understand the law applicable to its exercise of discretion; and (3) given all the facts and applying the appropriate law, was the court’s weighing of the applicable facts and choices within the bounds of reasonableness." Pettinelli v. Yost, 2007 ME 121, ¶ 11, 930 A.2d 1074. An abuse of discretion occurs when an error of law causes a court not to consider a factor that it is legally permitted to consider, State v. Svay, 2003 ME 93, ¶ 11, 828 A.2d 790, or "when a material factor deserving significant weight is ignored," West Point-Pepperell, Inc. v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211 (quotation marks omitted).
[¶30] A review of the disciplinary framework and methodology set forth in the ABA Sanction Standards is helpful in understanding this issue. The ABA Sanction Standards, first adopted by the American Bar Association in 1986 and then amended in 1992, comprises a comprehensive scheme that sets forth clearly developed standards for the imposition of attorney discipline. ABA Sanction Standards § I(A). The ABA Sanction Standards were "developed after an examination of all reported lawyer discipline cases from 1980 to June, 1984," with the stated intent of articulating a "theoretical framework for use in imposing sanctions." Id. § I(B). To that end, the framework of the ABA Sanction Standards requires a disciplinary body to consider four questions:
(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)
(2) What was the lawyer’s mental state? (Did the lawyer act intentionally, knowingly, or negligently?)
(3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct? (Was there a serious or potentially serious injury?) and
(4) Are there any aggravating or mitigating circumstances?
Id. § II.
[¶31] In order to facilitate this determination, the ABA Sanction Standards are organized into various sub-parts. The analysis regarding an appropriate sanction begins with Standard 3.0, which largely mirrors both the theoretical framework provided above and the language of Rule 21(c).6 See ABA Sanction Standards § III(C)(3.0). The ABA Sanction Standards then include provisions that govern varying kinds of violations of rules of professional conduct. For instance, Standard 4.0 governs "Violations of Duties Owed to Clients," Standard 5.0 governs "Violations of Duties Owed to the Public," and Standard 6.0 governs "Violations of Duties Owed to the Legal System." Id.
§ III(C)(4.0)-(6.0).
[¶32] For the limited purpose of illustrating the framework of the ABA Sanction Standards-and using an example that in no way relates to the conduct involved in this matter-consider the case of a hypothetical attorney found in violation of a rule of professional conduct proscribing the misappropriation of a client’s funds. There, a disciplinary body would begin a sanction determination by reviewing Standard 4.1, "Failure to Preserve the Client’s Property." Id. § III(C)(4.1). The disciplinary body would then-based upon its factual findings that supported its finding of lawyer misconduct-determine the attorney’s state of mind and the injury caused to the client by the attorney’s misappropriation of the client’s funds. Where the attorney acted intentionally or caused injury or potential injury to the client, Standard 4.11 provides for a presumptive sanction of disbarment. Id. § III(C)(4.11). Conversely, where the attorney acted negligently and caused little to no actual or potential injury to the client, Standard 4.14 provides that the presumptive sanction is an admonition. Id. § III(C)(4.14).
[¶33] After making this presumptive sanction determination, the disciplinary body would then consider the aggravating and mitigating factors enumerated in Standard 9.2 and 9.3, respectively. Id. § III(C)(9.2)-(9.3). Standard 9.22 lists eleven aggravating factors that a disciplinary body may consider after determining the attorney’s presumptive sanction, and Standard 9.32 lists eleven mitigating factors for consideration. Id. § III(C)(9.22), (9.32). Standard 9.4 lists factors that cannot be considered in aggravation or mitigation. Id. § III(C)(9.4).
[¶34] Accordingly, where the presumptive sanction for lawyer misconduct is a suspension, but there is a considerable imbalance between an extensive number of aggravating factors and few, if any, mitigating factors, a disciplinary body would be justified in increasing a lawyer’s sanction to disbarment. Conversely, where the presumptive sanction is a suspension but the mitigating factors significantly outweigh the aggravating factors, the disciplinary body would be justified in lowering a lawyer’s sanction to a reprimand.
[¶35] This case presents to us an issue of first impression: whether the imposition of attorney discipline pursuant to Maine Bar Rule 21(c)-having repealed and replaced former Maine Bar Rule 7.1(e)(3)(C) (Tower 2014), effective July 1, 2015, see M. Bar R. 21 Reporter’s Notes to 2015 amend.; M. Bar R. 33-requires the application of the particular disciplinary framework and methodology of the ABA Sanction Standards as explained above. The Board argues that Rule 21(c) "expressly incorporates" that framework and methodology, while Prolman contends that Maine "has not adopted in toto the ABA [Sanction Standards], and, in fact, has explicitly rejected portions of those Standards." Prolman argues that "Maine Bar Rule 21 actually paraphrases, and more specifically defines, the four factors specifically referenced in Standard 3.0 of the ABA [Sanction Standards]." According to Prolman, "[b]y specifically addressing each of the four factors set forth in Maine Bar Rule 21(c) and Standard 3.0 [of the ABA Sanction Standards], the [court] acted well within [its] discretion and committed no error."
[¶36] As stated in the Court’s Per Curiam opinion, Court’s Opinion ¶ 21, Rule 21(c) provides that when imposing a sanction after a finding of lawyer misconduct, a single justice must consider the four factors specified in paragraphs 1-4 "as enumerated in" the ABA Sanction Standards. M. Bar. R. 21(c) (emphasis added). To answer the question of whether Rule 21(c) incorporates the framework and methodology of the ABA Sanction Standards, therefore, we must determine the meaning that should be attached to the term "as enumerated in."
[¶37] When interpreting a bar rule, as when interpreting a statute, we first look to the rule’s plain language and consider that language in the context of the entire disciplinary scheme. See Bailey v. Bd. of Bar Examiners, 2014 ME 58, ¶¶ 18-21, 90 A.3d 1137; Warren, 2011 ME 124, ¶ 32, 34 A.3d 1103; Darling’s v. Ford Motor Co., 1998 ME 232, ¶ 5, 719 A.2d 111. In so doing, we are mindful that "[n]othing in a [rule] may be treated as surplusage if a reasonable construction applying meaning and force is otherwise possible." State v. Tozier, 2015 ME 57, ¶ 6, 115 A.3d 1240 (quotation marks omitted). If the language of the rule is unambiguous, we apply its plain meaning. See Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 13, 107 A.3d 621; Warren, 2011 ME 124, ¶ 32, 34 A.3d 1103. Language is ambiguous when it is reasonably susceptible to different interpretations. Guilford Transp. Indus. v. Pub. Utils. Comm’n, 2000 ME 31, ¶ 14, 746 A.2d 910. If a rule is ambiguous, we consider its meaning in light of its history and the intent behind the promulgation of that rule. See Bailey, 2014 ME 58, ¶¶ 19, 21, 90 A.3d 1137; MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 6, 82 A.3d 104.
A. Plain Language
[¶38] Here, the language at issue comprises two clauses: an independent clause, "the Single Justice shall consider the following factors"; followed by a dependent clause, separated by a comma, "as enumerated in the ABA Standards for Imposing Lawyer Sanctions."7 M. Bar R. 21(c). Due to the structure of this sentence, it is unclear whether the dependent clause modifies the word "consider"-which, as the Board contends, would signify that the factors must be applied in the manner in which they are applied pursuant to the ABA Sanction Standards, thereby requiring the court to apply the ABA Sanction Standards framework in its entirety-or whether the dependent clause modifies the word "factors" which, as Prolman argues, would indicate that the factors enumerated are also listed in the ABA Sanction Standards. Considered in isolation, the term "as enumerated in" in Rule 21(c) is ambiguous, as it can reasonably receive more than one construction, potentially resulting in the imposition of disparate attorney discipline. See Guilford Transp. Indus., 2000 ME 31, ¶ 14, 746 A.2d 910.
[¶39] However, when reviewing the entire disciplinary scheme created by the Maine Bar Rules, see Darling’s, 1998 ME 232, ¶ 5, 719 A.2d 111, it is evident that the term "as enumerated in" in Rule 21(c) serves to incorporate the entire disciplinary framework set forth in the ABA Sanction Standards. Maine Bar Rule 13(c)(2)(A), which governs Bar Counsel’s authority to refer attorneys to the Alternatives to Discipline Program, provides that a factor for consideration in that referral process is "whether the presumptive sanction under the ABA [Sanction] Standards for the alleged misconduct is likely to be no more severe than reprimand or admonition." (Emphasis added.) Because, as explained above, supra ¶¶ 32-33, the determination of an attorney’s "presumptive sanction" constitutes one portion of the analysis that a disciplinary body must make pursuant to the ABA Sanction Standards framework, the Maine Bar Rules clearly contemplate that "the Single Justice, the Court, or the Grievance Commission panel" must apply that entire framework when imposing attorney discipline pursuant to Rule 21(c).
[¶40] Indeed, to construe Rule 21(c) as Prolman urges would leave Rule 13(c)(2)(A) with little effect, as his construction would not require a disciplinary body to make a "presumptive sanction" pursuant to Rule 21(c) and Bar Counsel, in turn, would not have the "presumptive sanction" on which to base its attorney referral determination. M. Bar R. 13(c)(2)(A); see Tozier, 2015 ME 57, ¶ 6, 115 A.3d 1240 ("Nothing in a [rule] may be treated as surplusage if a reasonable construction applying meaning and force is otherwise possible." (quotation marks omitted)). Accordingly, we would conclude that Rule 21(c) is not ambiguous in the context of the Maine Bar Rules’ disciplinary scheme, and that its plain language requires "the Single Justice, the Court, or the Grievance Commission panel" to consider and apply the entire ABA Sanction Standards framework when imposing a sanction after a finding of lawyer misconduct.
B. Ambiguity, Relevant History, and Policy Considerations
[¶41] Even if Rule 21(c) were ambiguous, however, its history further compels our conclusion that the Rule requires the entire ABA Sanction Standards framework to be applied. See MaineToday Media, Inc., 2013 ME 100, ¶ 6, 82 A.3d 104. The Maine Bar Rules were abrogated [repealed and replaced] in July 2015. M. Bar R. 33. The current Bar Rules were adopted after the Board of Overseers of the Bar established the Committee to Review Maine’s Disciplinary Enforcement Rules (the Committee), which compared the former Maine Bar Rules with the ABA’s Model Rules for lawyer disciplinary enforcement (Am. Bar Ass’n 2002) (ABA Model Rules) to create the current Maine Bar Rules. M. Bar. R. at 19 Reporter’s Notes to 2015 amend. As the Reporter’s Notes to Rule 21 provide, "Rule 21(c) is based on former Maine Rule 7.1(e)(3)(C) but also incorporates language from [ABA] Model Rule 10(C) that specifically references the [ABA Sanction Standards]." M. Bar R. 21 Reporter’s Notes to 2015 amend.
[¶42] Both the abrogated Maine Bar Rule 7.1(e)(3)(C) (Tower 2014) and ABA Model Rule 10(C) contain the same factors-in nearly identical language- as those enumerated in Rule 21(c),8 but ABA Model Rule 10(C) additionally provides that the disciplinary body must consider those factors "as enumerated in" the ABA Sanction Standards. The only substantive difference, therefore, between Maine’s former rule for imposing sanctions, Maine Bar Rule 7.1(e)(3)(C) (Tower 2014), and the new rule, Maine Bar Rule 21(c), is the inclusion of the language contained in ABA Model Rule 10(C) that "specifically references the [ABA Sanction Standards]." M. Bar R. 21 Reporters Notes, to 2015 amend.; see M. Bar R. 21(c).
[¶43] The effect of this discrete modification is illuminated by the interrelationship between ABA Model Rule 10(C) and Standard 3.0 of the ABA Sanction Standards. As pertinent case law from other jurisdictions demonstrates, both Standard 3.0 of the ABA Sanction Standards and ABA Model Rule 10(C)-by virtue of its reference to Standard 3.0 of the ABA Sanction Standards-require a disciplinary body to impose a sanction pursuant to the entire ABA Sanction Standards framework. See, e.g., V.I. Bar v. Brusch, 49 V.I. 409, 414 n.6, 420-22 (V.I. 2008) (acknowledging that ABA Model Rule 10(C) incorporated the ABA Sanction Standards and applying those Standards’ framework and methodology); In re Disciplinary Proceeding Against Perez-Pena, 168 P.3d 408, 414-16 (Wash. 2007) (stating that the ABA Sanction Standards govern attorney sanctions in Washington and beginning its sanction determination with a review of Standard 3.0 before applying the ABA Sanction Standards’ framework and methodology); Bd. of Prof’l Responsibility v. Beduhn, 402 P.3d 950, 967-78 (Wyo. 2017) (reviewing attorney discipline pursuant to Wyoming Rule of Disciplinary Procedure 15(b)(3)(D)-which, like Rule 21(c), contains the "as enumerated in" language from ABA Model Rule 10(C)-and applying the ABA Sanction Standards’ framework and methodology).
[¶44] As noted above, Prolman contends that Rule 21(c) cannot be interpreted to require the application of the ABA Sanction Standards because "the Maine Bar Rules specifically chose to retain a variety of aspects of the existing Maine Bar Rules, while rejecting other portions of the ABA [Sanction Standards]." This argument is misleading because it fails to distinguish the ABA Sanction Standards from the ABA Model Rules. Although the Committee developed the current Maine Bar Rules-later promulgated by the Supreme Judicial Court-by comparing the abrogated Maine Bar Rules with the ABA Model Rules, M. Bar R. Reporter’s Notes to 2015 amend., and the current Maine Bar Rules do differ from the ABA Model Rules,9 this does not mean that the Committee rejected the ABA Sanction Standards. Rather, as the Board correctly asserts, the ABA Sanction Standards and the ABA Model Rules "are discrete texts with distinct purposes," and the new Maine Bar Rules’ rejection of some portions of the ABA Model Rules cannot be read as a rejection of the ABA Sanction Standards. This is especially so where, as here, the new Maine Bar Rules expressly included in Rule 21(c) a provision from the ABA Model Rules that incorporates the framework set forth in the ABA Sanction Standards.
[¶45] Finally, we observe that, as a matter of policy, construing Rule 21(c) to incorporate the ABA Sanction Standards framework promotes our objective of "provid[ing] a clear and consistent articulation of what constitutes appropriate professional standards." Bd. of Overseers of the Bar v. Rodway, 470 A.2d 790, 791 (Me. 1984). As we reasoned in Rodway, "Disciplinary proceedings for alleged violations must be administered with an even hand." Id. We agree with the Board that, absent the clarifying aid of the ABA Sanction Standards framework for imposing discipline, Rule 21(c) is "indeterminately vague," as it provides a list of four factors for consideration but offers no guidance either as to how those factors relate to one another or how they should be applied in response to the broad array of attorney misconduct that a disciplinary body is faced with addressing. By requiring that attorney discipline be imposed pursuant to the ABA Sanction Standards framework, we would ensure that attorneys subject to such discipline receive "fair and consistent treatment" for violations of the Maine Rules of Professional Conduct. Rodway, 470 A.2d at 791.
[¶46] Accordingly, we would conclude that Rule 21(c) incorporates the framework and methodology of the ABA Sanction Standards, thereby requiring that framework to be explicitly applied after a finding of lawyer misconduct. We would therefore conclude that the court abused its discretion by imposing a sanction on Prolman without applying the ABA Sanction Standards to Prolman’s violations of the Maine Rules of Professional Conduct.10 See Pettinelli, 2007 ME 121, ¶ 11, 930 A.2d 1074.
[¶47] As the record demonstrates, after the Board made arguments pursuant to the ABA Sanction Standards in its closing argument, the court mistook the Board’s reference to those Standards to constitute an argument for separate violations of the Maine Rules of Professional Conduct not alleged in its initial petition. Thus, it is clear that the court did not consider the ABA Sanction Standards in imposing Prolman’s sanction. Although the court did consider the four factors set out in Rule 21(c), it did so only in isolation, without consideration of the comprehensive framework and methodology that serve to give those factors context and meaning. For example, the court did not refer to the discrete ABA Sanction Standards that correlate with Prolman’s violations of the Maine Rules of Professional Conduct, nor did the court apply its findings regarding Prolman’s mental state and the injury to Prolman’s client to determine a presumptive sanction as provided by each ABA Sanction Standard. Indeed, although the hearing evidence supports the court’s finding that Prolman’s failure to disclose the client’s living situation was negligent or reckless, the court did not address Prolman’s state of mind as it pertained to his initiation of a sexual relationship with his client, which was the basis for the court’s conclusion that Prolman violated M.R. Prof. Conduct 1.7(a)(2).
[¶48] Nor did the court, after determining Prolman’s presumptive sanction, consult the aggravating and mitigating factors enumerated in the ABA Sanction Standards to determine if a modification of the presumptive sanction was appropriate. This is made clear by the fact that the following aggravating factors could have been applicable in this case: (1) Standard 9.22(a), for "prior disciplinary offenses, " because Prolman had already been suspended for two years after pleading guilty to federal money laundering charges; (2) Standard 9.22(b), for a "dishonest or selfish motive," because attempting to achieve sexual gratification from a nonconsenting client is undoubtedly motivated by selfishness; (3) Standard 9.22(d), for "multiple offenses," because the court found that Prolman approached his client seeking sexual gratification and engaged in sexual acts with her "on more than one occasion"; (4) Standard 9.22(g), for "refusal to acknowledge wrongful nature of conduct," because Prolman denied that the sexual acts occurred; (5) Standard 9.22(i), for "substantial experience in the practice of law" (the court incorporated by reference the facts contained in Prolman’s March 7, 2016, disciplinary order, including the finding that Prolman was admitted to the Maine Bar in 1991 and has since "primarily engaged in a solo practice with a focus on criminal defense work"; and (6) Standard 9.22(k), for "illegal conduct," because the court found that "Prolman consumed and provided his client wine," in violation of both his federal supervised release and the client’s probation, and because the court found that Prolman imposed himself sexually on a "nonconsenting" individual. ABA Sanction Standards §§ III(C), 9.22(a), (b), (d), (g), (i), (k).
[¶49] Because it did not follow the framework of the ABA Sanction Standards, the court did not consider those factors, instead considering two aggravating factors not listed in the ABA Sanction Standards and, with respect to the aggravating factors enumerated in those Standards, considered only the "client’s vulnerability." See id. § III(C)(9.22)(h).
[¶50] We would therefore hold that Maine Bar Rule 21(c) incorporates the ABA Sanction Standards, and we would vacate the judgment and remand this matter to the court to impose a sanction using the methodology and framework set out in those ABA Sanction Standards.
SAUFLEY, C.J., with whom GORMAN and HUMPHREY, JJ., join, concurring.
[¶51] We agree that the sanctions are insufficient, but we would conclude that there is no need to incorporate the ABA’s lengthy and detailed "Standards for Imposing Lawyer Sanctions" into the Maine Bar Rules as a matter of law.11 Although an adjudicator should consult that extended discussion when it is relevant to a particular sanction decision, the requirement that an adjudication must track that lengthy and detailed guidance in minute detail in order to impose any sanction would create an unnecessarily cumbersome process.
[¶52] In the matter before us, we can and should be entirely straightforward. The court’s factual determinations are all fully supported by the record. The court correctly understood the applicable law, and it understood that the court’s role was to apply the sanctions framework set out in Maine Bar Rule 21(c).
[¶53] The only error in the court’s analysis was in exceeding its discretion by imposing a sanction that minimizes both the conduct that was articulately detailed in the court’s findings and Attorney Prolman’s criminal and disciplinary history. Perhaps because the Law Court so rarely concludes that a trial court has acted outside the bounds of its discretion, our colleagues would conclude that the abuse of discretion must have generated from an error of law. We disagree.
[¶54] All that needs to be said is this: When an attorney has been sentenced to federal prison for using his legal talents to commit serious crimes, and upon reinstatement to the Bar engages in behavior that is abhorrent to the profession, including taking sexual advantage of a client he knew to have been the victim of sex trafficking, a six-month suspension, requiring no demonstration of rehabilitation in order to return to the practice of law, is plainly and compellingly insufficient.
[¶55] The history of Prolman’s actions as an attorney is particularly important in this case. Prolman is apparently a very skilled and persuasive attorney. He used those considerable talents to engage in a course of conduct through which he laundered money for his clients in the drug trafficking business. For that behavior, he was sentenced to two years in federal prison, followed by two years of supervision. His license to practice law was suspended indefinitely. After he was released from prison, the court lifted that suspension and allowed Prolman to return to the practice of law.
[¶56] Within a year after recovering his privilege to practice law, Prolman engaged in the conduct that brings this appeal before us. Again, he was able to successfully assist his client in several matters, and again, he engaged in completely unacceptable behavior. As our colleagues note today, among other things, the court found that
- Prolman’s "effort to help his client became misguided when he had her move into his apartment and then initiated the sexual relationship that took advantage of the living arrangement and his client’s vulnerability,"
- "The injury caused by Prolman’s conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life," and
- Prolman "placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked."
On these facts, the court imposed only a six-month suspension, following which Prolman will again return, unrestricted, to the practice of law.
[¶57] The error in the court’s selection of a sanction does not lie in the failure to identify and analyze a lengthier list of factors to consider. The error lies in the sanction’s brevity and its failure to require a substantial improvement in Prolman’s understanding of the trust that the public reposes in an attorney. At base, the brief six-month suspension substantially minimizes the seriousness of the conduct in which Prolman was found to have engaged.
[¶58] The abuse-of-discretion standard is deferential, but it is not an impenetrable barrier to appellate relief. See generally Andrew M. Mead, Abuse of Discretion: Maine’s Application of a Malleable Appellate Standard, 57 Me. L. Rev. 519 (2005); see also In re Jamara R., 2005 ME 45, ¶ 17, 870 A.2d 112 (explaining that in reviewing for an abuse of discretion we consider "whether the court’s factual findings are supported by the record; . . . whether the court understood the law applicable to the exercise of its discretion; . . . [and] whether . . . the court’s weighing of the applicable facts was within the bounds of reasonableness"). We should say clearly that it is an abuse of discretion to impose a six-month period of probation on an attorney who has sex with a vulnerable client who he knows has been the victim of sex trafficking and domestic abuse. We should say that with even more certainty here, where the attorney who committed these wrongs had recently been reinstated to the Bar following a two-year suspension arising out of felony convictions.
[¶59] We would conclude that the court committed no error of fact or law, but that the sanction imposed is wholly insufficient to protect the public and is therefore an abuse of discretion.
Aria Eee, Esq. (orally), and J. Scott Davis, Esq., Board of Overseers of the Bar, Augusta, for appellant Board of Overseers of the Bar
James M. Bowie, Esq. (orally), Thompson Bowie & Hatch LLC, Portland, for appellee Gary M. Prolman
1To avoid confusion between the ABA Standards for Imposing Lawyer Sanctions and the ABA Model Rules for Disciplinary Enforcement, both of which are referred to in these opinions, we will refer to the Standards for Imposing Lawyer Sanctions as the "ABA Sanction Standards" and the Model Rules for Disciplinary Enforcement as the "ABA Sanction Rules."
2 The separate analyses are set out in the concurring opinions.
3 In the order appealed from here, the court incorporated by reference the facts contained in the March 7, 2016, disciplinary order.
4 Although Prolman denied any sexual contact with the client, the court found that the client’s testimony was more credible than his. The court based this credibility determination on several factors, including, inter alia, the following:
- Prolman testified that on the evening of April 9, he and his client had a "blow up", during which he accused his client of-and she admitted to-using drugs while residing at the apartment, and he told her that he was terminating the attorney/client relationship. However, the court found it unlikely that the celebratory dinner on April 10, which included the consumption of wine, would have occurred if that "blow up" and termination of the attorney/client relationship had indeed occurred.
- Prolman testified that the seventeen-day delay-from April 9 to April 26-in filing his motion to withdraw was due to the fact that his office assistant was on vacation and the motion therefore could not be typed and properly prepared. However, the office assistant testified that she did not leave for vacation until Wednesday, April 12, meaning she would have been available on two business days, Monday, April 10, and Tuesday, April 11, if Prolman had wanted her to promptly file the motion to withdraw.
- Text messages between Prolman and the client, beginning on Tuesday, April 11, include statements by Prolman that he would likely not have made if the "blow up" on April 9 had indeed occurred. Moreover, a text message on April 13 indicated that it was the client, not Prolman, who terminated the attorney/client relationship. It was only after Prolman received this text message from the client that he filed the motion to withdraw.
5 Rule 1.5(a) provides, in pertinent part, that "[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." M.R. Prof. Conduct 1.5(a).
Rule 1.7(a)(2) provides that, with several exceptions not applicable here, "a lawyer shall not represent a client if the representation involves a concurrent conflict-of-interest," which exists when "there is a significant risk that the representation of one or more clients would be materially limited by . . . a personal interest of the lawyer." M.R. Prof. Conduct 1.7(a)(2).
Rule 1.16(a)(1) provides that, with one exception not applicable here, "a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the representation will result in a violation of the rules of professional conduct or other law." M.R. Prof. Conduct 1.16(a)(1).
Rule 2.1 provides, in pertinent part, that "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice." M.R. Prof. Conduct 2.1.
Rule 3.4(c) provides that "[a] lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." M.R. Prof. Conduct 3.4(c).
Rule 8.4(a) provides, in pertinent part, that "[i]t is professional misconduct for a lawyer to . . . violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules," while Rule 8.4(d) provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." M.R. Prof. Conduct 8.4(a), (d).
The attorney’s oath requires an attorney, upon admission to the bar, to swear or affirm, in pertinent part, that he or she will "conduct [him or herself] in the office of an attorney within the courts according to the best of [his or her] knowledge and discretion, and with all good fidelity . . . as to [his or her] clients." 4 M.R.S. § 806 (2017).
6 Standard 3.0 of the ABA Sanction Standards provides,
3.0 Generally
In imposing a sanction after a finding of lawyer misconduct, a court shall consider the following factors:
- the duty violated;
- the lawyer’s mental state;
- the potential or actual injury caused by the lawyer’s misconduct; and
- the existence of aggravating or mitigating factors.
Sanction Standards for Imposing Lawyer Sanctions § III(C)(3.0) (Am. Bar Ass’n 1992).
7 Maine Bar Rule 21(c)’s prefatory language actually contains three clauses, as the language at issue is prefaced by an additional dependent clause "In imposing a sanction after a finding of lawyer misconduct . . . ." That clause is not germane to our analysis here because neither party disputes that a sanction may be imposed only "after a finding of lawyer misconduct." M. Bar R. 21(c) (emphasis added).
8 Abrogated Maine Bar Rule 7.1(e)(3)(C) provides, in relevant part,
If the disciplinary panel finds that misconduct subject to sanction under these rules has occurred . . . , the panel shall either issue a public reprimand to the respondent attorney or, upon a finding of probable cause for suspension or disbarment, shall direct Bar Counsel to commence an attorney discipline action by filing an information pursuant to Rule 7.2(b). In determining the appropriate sanction, the panel shall consider the following factors among others: (i) whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession; (ii) whether the attorney acted intentionally, knowingly, or negligently; (iii) the amount of actual or potential injury caused by the attorney’s misconduct; and (iv) the existence of any aggravating or mitigating factors.
M. Bar R. 7.1(e)(3)(C) (Tower 2014). Similarly, ABA Model Rule 10(C) provides,
C. Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the court or board shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions.
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer’s misconduct; and
- the existence of any aggravating or mitigating factors.
(Emphasis added.)
9 For example, Maine Bar Rule 14(a)(4) provides that the Board’s burden of proof in establishing its case is a preponderance of the evidence standard, while ABA Model Rule 18(C) provides for a clear and convincing standard. Model Rules for Lawyer Disciplinary Enforcement 18(c) (Am. Bar Ass’n 2002).
10 We agree completely with the other concurrence’s characterization of Prolman’s actions as being "abhorrent to the profession" and with its determination that a six-month suspension for such conduct-requiring no demonstration of rehabilitation in order to return to the practice of law-is "plainly and compellingly insufficient." Concurring Opinion ¶ 54. For this reason, we emphasize that even if the clear effect of the Court’s 2015 amendment of Rule 21(c) did not incorporate the ABA Sanction Standards, we would emphatically agree that the court nonetheless abused his discretion because the "sanction imposed is wholly insufficient to protect the public," Concurring Opinion ¶ 54, and therefore lies well beyond the "bounds of reasonableness." Pettinelli v. Yost, 2007 ME 121, ¶ 11, 930 A.2d 1074.
11 The pertinent section of the ABA Sanction Standards published by the ABA consists of nine pages of criteria that a court should consider in imposing sanctions. ABA Sanction Standards § III(C). The standards include five major "parts," each of which is further divided into sub-parts and even sub-sub-parts. Id.
Board of Overseers of the Bar v. Robert C. Robbins IV, Esq.
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Docket No.: BAR-18-11
Issued by: Maine Supreme Judicial Court
Date: September 6, 2018
Respondent: Robert C. Robbins IV, Esq.
Bar Number: 008158
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon consideration of Petition filed by the Board of Overseers of the Bar (Board), the Court Orders the following:
As of this date, the Board is appointed as the Receiver of Robert C. Robbins' law practice. As such the Board shall have the sole authority to:
- Secure the professional files, client funds and file property of the Robbins law office;
- Obtain signatory authority over all Robbins law office bank accounts (IOLTA and operating/office accounts);
- Obtain access to Robbins' computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and if necessary, the closed client files;
- Give priority attention to client matters which are open and time sensitive;
- Notify all courts that the Board is serving as Robbins' Receiver until further order of this Court;
- Notify clients or former clients that the Board is serving as Receiver to the Robbins law practice and provide opportunity for clients to consult with the Receiver or retrieve their property; and
- The Receiver shall access and utilize Robbins' operating and IOLTA accounts to prudently and appropriately manage the practice. The Receiver may pay expenses, as she deems appropriate given available funds or anticipated receivables to the firm. The Receiver may take other action as necessary and appropriate to formally close the Robbins law practice.
As a service to the bar, the Board acknowledges that it shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) at six month intervals, from Robbins' law practice, the Board may be reimbursed from those assets.
Likewise, the Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Robbins shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Robbins, the Board shall undertake payment for those disbursements.
The Board shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32.
The Board so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
The Board shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receiver shall file a status report with the Court.
Dated: September 6, 2018
Daniel F. Driscoll
Judge, Maine District Court
Board of Overseers of the Bar v. Seth T. Carey
Download Download Decision (PDF)
Docket No.: BAR-18-4 & BAR-16-15
Issued by: Maine Supreme Judicial Court
Date: September 21, 2018
Respondent: Seth T. Carey
Bar Number: 009970
Order: Findings, Conclusions and Order Order
Disposition/Conduct: Sanctions Hearing to be Scheduled
This attorney discipline matter was initiated on April 10, 2018 by a petition for immediate interim suspension filed by the Board of Bar Overseers pursuant to M. Bar R. 24(d). That petition was docketed as BAR-18-4.
The defendant, Attorney Seth T. Carey, had received a two-year suspension in a prior disciplinary proceeding in BAR-16-15, but that suspension had itself been suspended subject to Attorney Carey’s compliance with certain specified conditions set forth in a November 21, 2016 consent order. At the same time as it filed the petition for immediate interim suspension in BAR-18-4, the Board of Overseers filed a petition to terminate the suspension of discipline in BAR-16-15 and to invoke the two-year suspension imposed in that case.
The basis of the Board’s petition for an immediate interim suspension was that in a protection from abuse proceeding on March 30, 2018, RUMDC-PA-2018-20, Attorney Carey had been found by the District Court to have engaged in criminal conduct. Specifically, the testimony at the PA hearing, expressly found credible by the District Court, supported a finding that Attorney Carey had on one occasion subjected the complainant - a person Carey had formerly represented - to conduct that met the definition of unlawful sexual touching under the criminal code. 17-A M.R.S. §§ 260(l)(A), 251(1)(G).1 The testimony also supported the District Court’s finding that on another occasion Attorney Carey had grabbed the complainant’s head and thrust it toward his crotch while demanding oral sex - conduct that would at a minimum constitute offensive physical contact constituting an assault under the criminal code. 17-A M.R.S. § 207-A(l)(A). Because the complainant and Attorney Carey were former sexual partners, this would qualify as a domestic assault. Id.; 19-A M.R.S. § 4002(4).
On April 30, 2018, after a hearing, the court issued an order granting the Board’s petition for an immediate interim suspension. It did so after reviewing the audio recording of the PA hearing, the exhibits admitted at the PA hearing, the District Court’s findings, and the opposing papers submitted by Attorney Carey. In its order, because of the nature of the behavior and particularly because Attorney Carey was essentially already on probation in the prior bar proceeding, the court found that Attorney Carey’s conduct threatened imminent injury to the public and the administration of justice.
At that time, as stated in the April 30, 2018 order, the court envisioned that a final hearing would be promptly scheduled. However, that did not happen for a combination of reasons including an appeal filed by Attorney Carey, the Board’s addition of additional alleged violations that occurred after the court’s April 30 interim suspension, and Attorney Carey’s initial listing of 400 witnesses. See July 19, 2018 order granting the Board’s motion to file a Second Amended Information at 2 n.3.
Ultimately, a three-day hearing was held on August 15-17, 2018. The hearing addressed both the conduct alleged in counts I - III and V of the Board’s Second Amended Information and the Board’s petition to impose the discipline previously suspended in BAR-16-15, which was included as Count IV. Before the Board rested, it dismissed Count II.
The Board was represented by Bar Counsel J. Scott Davis and Deputy Bar Counsel Aria Eee. Attorney Carey, who had represented himself up through late July, was represented at the hearing by James Howaniec, Esq. At the hearing counsel for Carey acknowledged that Carey had committed some bar violations but vigorously disputed many of the Board’s charges and contested the seriousness of any violations that were committed.
In a disciplinary proceeding before a single justice, the Board has the burden of establishing its case by a preponderance of the evidence. M. Bar R. 14(b)(4). Based on the evidence at the hearing, the court makes the following findings:
- Seth T. Carey has at all relevant times been an attorney subject to the Maine Rules of Professional Conduct.
- Attorney Carey lived in Rumford until sometime in early 2018, when he moved to Auburn but continued to own a residence on High Street in Rumford which he visited on weekends and occasionally during the week.
- T.B., the complainant in the Rumford PA case,2 had been a client of Attorney Carey’s father, Thomas Carey, in a child custody case and had been represented by Seth Carey at one or more hearings or proceedings when Seth Carey stood in for his father. Future references in this order to "Carey" or "Attorney Carey" shall refer to Seth Carey.
- Several years later, in the fall of 2016, Carey and T.B. got back in contact. At this time their contact was social and did not involve Carey’s professional activities as a lawyer. While it is unclear exactly who initiated the social contact, T.B. at one point during that time period expressed a strong liking for Carey on the Tinder dating application.
- That led to an evening when Carey invited T.B. to come to his home in Rumford, where they had some drinks and engaged in a consensual sexual encounter.
- T.B. learned later that evening that Carey was involved with another woman named Ari, which dampened T.B.’s interest in a relationship with Carey. In the course of the evening, however, Carey mentioned that he was planning to rent out one or more rooms in the Rumford residence.
- In the spring of 2017, T.B. approached Carey and asked if there was still a room available that she could rent. At that time T.B. was temporarily living in her car. Carey offered T.B. a room and she moved into his Rumford residence. She had a job at the time and initially paid a modest amount of rent. During most of this time T.B was in a relationship with a man named Josh Hussey.
- T.B. initially stayed at the Rumford residence until Thanksgiving of 2017. During this time Carey propositioned T.B. for sex on a number of occasions, but she declined his verbal advances. In a text message in the fall, Carey asked T.B. if she wanted to "hook up" before she went to Monmouth. She refused, stating that they were each dating other people and that she had told him "many times" that his suggestion was offensive to her. Board Exhibit 52.
- When she moved out at Thanksgiving, T.B moved in with Josh Hussey but that relationship became abusive and she abruptly left Hussey’s residence sometime in the winter. She first called a friend for a ride but when that fell through, she sought a ride from Carey. Carey picked her up and told her that she could stay at his Rumford house in exchange for doing some cleaning and work around the house. He also gave her the use of an automobile which was in the process of being repaired. This was around the time when Carey had moved to Auburn and only came to Rumford on weekends or if he had scheduled court appearances in Rumford. T.B agreed to the proposed arrangement.
- Carey hoped and expected that part of the arrangement would include sex, and he continued to suggest that T.B. engage in sex with him. She declined. Nevertheless, their relationship generally remained friendly. She sent him at least one text that could be described as flirtatious (referring to him as "blue eyes"), and she attempted to stay in his good graces.
- During the times when T.B. was staying at Carey’s Rumford residence, there were three occasions when Carey made physical advances. On one of those occasions, which occurred before T.B. left the house at Thanksgiving, she was sleeping and woke up when she felt Carey’s hands touching her legs and between her thighs. He then suggested that she sleep with him. She told him to get out of her room and he left.
- The other two physical advances took place after T.B. moved back into the Rumford house in 2018. One occurred when Carey tried to pull T.B. into his bedroom while proposing they engage in sex. The other occurred when she was sitting on the couch and he stepped in front of her, pulled her head against his crotch, and in crude terms requested oral sex. On both occasions T.B. rebuffed him and made her unhappiness known, and Carey desisted.
- At this time T.B., a person with a history of somewhat tumultuous relationships, was dependent on Carey for housing. Carey’s verbal and physical advances were unwelcome, but T.B. put up with them because she was able to repel them and Carey accepted her refusals. Asked why, after leaving Hussey because of physical abuse, she had returned to Carey’s house where she had previously been subjected to sexual harassment, T.B. credibly testified that at the time she thought it was her best alternative.
- Things came to a head on Friday, March 23, 2018, when Carey sent a text message requesting that T.B. tape a Clemson basketball game for him that evening.3 T.B. taped the wrong game. When Carey realized that, he texted her not to come back and to give his car back. Defense Exhibit 2 at 17.
- That led to an exchange of texts in which T.B. accused him of evicting her because she would not have sex with him, to which Carey responded, "That's part of it, yup - guess I'm not a sucker after all." Defense Exhibit 2 at 18, also admitted as Board Exhibit 89. In a subsequent text T.B. repeated her dismay that Carey was evicting her because she had not taped a basketball game and because she would not have sex with him. Defendant’s Exhibit 2 at 21.4
- Carey eventually sent texts demanding his car back by 5pm and threatening to throw all of T.B.’s belongings out in the snow. T.B. again protested by text that this was happening because she would not sleep with him, adding that it constituted sexual harassment. Defendant’s Exhibit 2 at 28, also admitted as Board Exhibit 90. Carey responded, "it’s not sexual harassment bc [because] you’re not my employee." Board Exhibit 91.
- That led to the filing of T.B.’s complaint for protection from abuse. Her complaint was triggered by Carey’s threat of eviction but was based on the unwanted physical advances that T.B. had previously been willing to endure.
- On March 26, 2018 the District Court entered a temporary order of protection, and on March 30, 2018, after a four-hour hearing, the District Court entered a final order of protection.
- Under the preponderance of the evidence standard applicable in this proceeding, Carey’s actions as set forth in paragraphs 11 and 12 would constitute criminal or unlawful conduct that would qualify as unlawful sexual touching and domestic assault under 17-A M.R.S. §§ 260(1)(A), 251(l)(G), and 207-A(l)(A).
- Rule of Professional Conduct 8.4(b) provides that it is professional misconduct for a lawyer to commit "a criminal or unlawful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects."
- Counsel for Carey has suggested that a higher standard of proof than preponderance of the evidence should be applied and that Rule 8.4(b) should require a criminal conviction. The court disagrees. The drafters of the rule could have specified a criminal conviction, but they instead chose to proscribe the commission of a "criminal or unlawful" act. "Unlawful" is intended to be broader than criminal. See Reporter’s Notes to Rule 8.4, which also state, "It is clear that if a lawyer engaged in criminal conduct, he or she would violate these rules." Requiring a criminal conviction would necessarily elevate Rule 8.4(b) to a reasonable doubt standard of proof, and M. Bar R. 14(b)(4) expressly sets forth a preponderance standard. Moreover, enforcement of the Bar Rules should not either depend on or await action by state or federal prosecutors, who may exercise their discretion not to pursue charges for reasons unrelated to the merits of a case.
- A second issue is whether the above conduct reflects adversely on Carey’s honesty, trustworthiness, or fitness as a lawyer within the meaning of Rule 8.4(b). Not every criminal or unlawful act would reflect adversely on fitness to practice law. See Comment [2] to Rule 8.4. In this case the court concludes that the nature of the conduct in question reflects adversely on Carey’s trustworthiness and fitness as a lawyer and would therefore constitute a violation of Rule 8.4(b).5
- In reaching the above findings, the court has considered defendant’s challenges to T.B.’s credibility. In particular, the court is not persuaded that the failure to produce other text messages - besides those offered in evidence by the Board or by Carey - undermines the essential elements of her testimony. T.B’s phone somewhat mysteriously ended up in Carey’s possession at the hearing, and T.B. stated that she believed that messages had been deleted. The phone was subsequently impounded by the court, and neither party sought to pursue that issue. See August 16, 2018 Tr. 110-11, 120-26.
- Although the Board also alleges that Carey violated Rule 1.9 (Duties to Former Clients), the court does not find that the PA proceeding was either "the same or a substantially related matter" as the child custody case in which he and his father had represented T.B. several years ago. See Rule 1.9(a). The court also does not find that Carey used or revealed any confidential information obtained in the representation of T.B. in the prior child custody case. See Rule 1.9(c). In addition, while T.B. was homeless and a victim of domestic abuse and Carey may have attempted to exploit her situation, he did not exploit the former attorney-client relationship. The social interaction between Carey and T.B. which resulted in his misconduct did not arise out of his prior representation.
- After this court entered the interim order of immediate suspension on April 30, 2018, Carey engaged in a number of actions which the Board alleges were in derogation of the court’s interim suspension order.
- As of at least May 14, 2018 Carey had not taken down his L/A Law firm webpage or his Linkedin profile describing him as an attorney, despite an express direction in paragraph 7 of the April 30, 2018 order that he immediately cease operation of any websites, facebook accounts, or other advertising of his legal services. He also failed to submit an affidavit to Bar Counsel within 10 days attesting to his compliance with the notification requirements in M. Bar R. 31 and with the suspension order. See M. Bar R. 31(h). In and of themselves, these would constitute de minimis and perhaps unintentional violations given Carey’s response that he had difficulty accessing his website, that he had forgotten his Linkedin page existed, and that the 10-day time limit in Rule 31(h) appears to be inconsistent with a 30 day time limit in Rule 31(a).
- However, these were not Carey’s only transgressions. The evidence at the hearing demonstrated that Carey took various actions that amounted to representing or attempting to represent clients after his suspension.
- In a case against the Town of Dexter that Carey had attempted to file in the Penobscot Superior Court prior to his suspension, the clerk’s office returned the complaint because it was unsigned. By that time Carey had been suspended, but he nevertheless signed the complaint and sent it back for filing on May 8, 2018.6 That case included a motion for a preliminary injunction, and Carey had two conversations with opposing counsel (Attorney Michael Hodgins) to ascertain whether the Town intended to go forward in light of the preliminary injunction motion and to see if Hodgins would accept service.
- In the first phone call, which occurred on May 3, Hodgins indicated he had heard that Carey had been disbarred. When he asked about that, Carey acknowledged he had been suspended but stated he was calling as a paralegal, and that a receiver would be taking over the case. In that phone call, Carey and Hodgins debated the merits of whether the Town could go forward.
- Hodgins returned a second call from Carey on May 14 and they again discussed whether the Town could go forward. Once again Carey stated he was calling as a paralegal. In this call he stated that his father would be entering an appearance at some point. His father ultimately entered an appearance approximately three weeks later.
- Given that Carey’s discussions with Hodgins went beyond the usual role of a paralegal and given that at the time of those conversation, no substitute counsel had appeared and Carey was acting independently, the court finds that Carey was not just tiptoeing along the line with respect to his suspension but that he stepped over the line.
- In another case where Carey was purportedly acting as a paralegal in a case where his father had appeared after the interim suspension, he sent emails in May and June under the email address of "Seth T. Carey, Esq.
- In another case where Carey had represented a claimant in a small claims case prior to his suspension, Carey attempted to file an appeal after his suspension by adding himself as a party in the caption of the notice of appeal and signing the notice as the appellant (with "Appellant’s Attorney" crossed out). Board Exhibit 42. This submission was rejected by Judge Lawrence.
- On at least three occasions after his suspension, Carey wrote checks on his law office account (one was for the notice of appeal referred to in paragraph 33) even though a receiver had been appointed and had been given control over Carey’s law office accounts. Board Exhibits 82, 83.
- After his suspension Carey also continued to campaign for the Republican nomination for District Attorney in Prosecutorial District 3, putting up yard signs and running several video ads that were shown on YouTube and perhaps elsewhere.8 At least one of his video ads (Board Exhibit 58) expressly referred to him as "Republican attorney Seth Thomas Carey," even though he was suspended at the time the video was released.
- Given that he was running for nomination and election as District Attorney, all of his campaign materials (Board Exhibits 12, 56-61, 66-69, and 74-75) implicitly represented that he was an attorney. Carey won the republican primary and is now the Republican nominee.
- Carey’s campaign could perhaps be explained as motivated by a hope that he would be reinstated by the time of the election. In closing argument, however, counsel for Carey suggested that if Carey were to win the general election, there would be an argument that - even though suspended- he could serve as District Attorney by administering the office without practicing law. This is difficult to accept, to say the least. If Carey were to make prosecutorial decisions, set policy, and supervise the lawyers in the District Attorney’s Office, he would be practicing law whether or not he ever appeared in court.
- Based on the facts set forth in paragraphs 28-37, the court finds that Carey acted in derogation of the court’s interim suspension order and violated Rule 3.4(c) of the Rules of Professional Conduct by knowingly disobeying an obligation under the rules of a tribunal. The operative principle is that parties are obliged to follow court orders even if they believe those orders to be invalid. E.g., United States v. United Mine Workers, 330 U.S. 258, 293-94 (1947) (contempt may be imposed for violation of order later set aside on appeal).
- On or about June 21, 2018 Carey met with counsel for T.B. and broached the possibility that there could be some kind of settlement. Asked for clarification, Carey provided counsel for T.B. with five documents on June 28. One of these documents (Board Exhibit 8A) was a statement drafted by Carey to be provided to this court and the Board of Overseers. That statement was to be signed by T.B. and stated that "things have been blown out of proportion and Seth Carey did not abuse me." The statement as drafted expressed a desire to vacate the finding of abuse in the PFA order and leave only the no contact provision.
- The second document drafted by Carey (Board Exhibit 8B) was a nondisclosure agreement to be signed by both Carey and T.B. It provided that upon the PFA being vacated, Carey would sign over the title to his PT Cruiser automobile to T.B. It further provided that T.B. would file a motion with this court and the Board of Overseers stating that there had been no abuse by Carey and seeking to vacate the prosecution of the Board’s Bar complaint. The draft agreement provided that if Carey’s ability to practice law were reinstated before October 1, 2018, T.B. would receive $1000. The proposed agreement also stated that "none of the details of this agreement are to be released to the public or anyone not associated with this agreement."
- Two other documents drafted by Carey (Board Exhibits 8C and 8D) were a proposed motion to vacate the finding of abuse in RUMDC-PA-2018-20 to be filed by counsel for T.B. and a proposed statement to be signed by Carey apologizing for attempting to abruptly throw T.B. out of his residence.
- The remaining document provided to counsel for T.B. by Carey (Board Exhibit 8E) was an incomplete draft of a "Mutual Confidentiality & Non-Circumvention Agreement between [T.B.] and Seth Carey" which provided that to settle all claims between them Carey agreed to give T.B. the PF [sic] Cruiser and that "the parties have agreed that it is in their mutual best interest never to discuss any of this agreement not any of the happenings that led to the breakdown of the relationship and then a PFA and social media accusations with anyone." The draft agreement also stated that it was intended to lay out the penalties for non-compliance and that "All this history between the Parties be kept strictly confidential."
- Although Carey has contended that these documents were provided as part of a settlement offer and are inadmissible under M.R.Evid. 408, this does not pass the straight face test. Board Exhibits 8A and 8B demonstrate that the import of Carey’s offer was aimed at this proceeding - not a case which T.B. had the authority to settle. T.B. was offered an automobile to retract her testimony that Carey had made unwanted physical advances and if Carey’s license to practice law were reinstated by October 1, T.B. would receive $1000.9
- The clear intent of the non-disclosure provisions in Board Exhibits 8B and 8E was that T.B. was not to disclose any aspects of the agreement (including her receipt of an automobile and her potential receipt of $1000 in exchange for retracting her testimony) and was not to discuss any aspect of the events that were the subject of the PA order and are the subject of certain of the Board’s charges in this proceeding.
- 17-A M.R.S. § 454(l)(A)(l) provides that a person is guilty of tampering with a witness or informant if the person "attempts to induce or cause a witness or informant ... to testify or inform in a manner the actor knows to be false." This covers both attempts to have a witness testify falsely and attempts to have a witness or informant provide false information. See State v. Kilgus, 484 A.2d 1208, 1211-12 (N.H. 1984). Carey’s offer to T.B. on June 28 constituted an attempt to induce T.B. to provide false information in violation of 17-A M.R.S. § 454(l)(A)(l). The offer and proposed non-disclosure agreement also constituted an attempt to induce a witness to withhold testimony, information, or evidence in violation of 17-A M.R.S. § 454(l)(A)(2). Finally, Carey’s offer coupled with the proposed non-disclosure agreement also constituted the offer of a pecuniary benefit with the intent to induce a witness to withhold testimony, information, or evidence in violation of 17-A M.R.S. § 454(l)(B)(l). In this instance there can be no dispute that Carey’s conduct reflected adversely on his honesty, trustworthiness, and fitness as a lawyer in violation of Rule 8.4(b).
- Independent of whether Carey’s conduct as set forth in paragraphs 39-44 would constitute criminal or unlawful conduct, his conduct was prejudicial to the administration of justice and thereby violated Rule 8.4(d).
- The Board alleges that Carey has violated conditions 18, 20, and 21 of the November 21, 2016 order imposing suspended discipline.
- Condition 20 provided that Carey "shall refrain from all criminal conduct." The court’s findings in paragraphs 11, 12, 19, and 39-44 demonstrate that this condition has been violated. It bears emphasis that although the court found criminal or unlawful conduct in paragraph 19 by a preponderance of the evidence standard, it would find the criminal or unlawful conduct set forth in paragraph 45 even if the applicable standard required proof beyond a reasonable doubt.
- The court does not find that Carey violated condition 21 of the November 21, 2016 order. Although he only grudgingly notified MAP (Maine Assistance Program for Judges and Lawyers) and Bar Counsel of the protection order in RUMDC-PA-2018-20 and did not provide details or even the docket number, he did report that a protection order had issued. Board Exhibit 20.
- Condition 18 of the November 21, 2016 order, as amended on June 8, 2017, provided that by July 8, 2017 Carey was to commence evaluation and treatment with a psychologist, that "he shall follow the recommendations of the psychologist and any other treatment providers he may subsequently be referred to. Attorney Carey shall receive consistent treatment from those providers to promote continuity of care." That condition also provided that "MAP shall pay the cost(s) of such treatments up to a maximum of $2,000."
- William Nugent, Esq., director of MAP, coordinated Carey’s compliance with condition 18 and Carey entered into a monitoring agreement with MAP in December 2016.
- Carey was evaluated on June 17, 2017 by Dr. Nadir Behrem, who provided a written report and treatment recommendations admitted as Board Exhibit 27. One of Dr. Behrem’s treatment recommendations was that Carey engage in psychotherapy with a clinical psychologist for no less than 12 weeks (one session per week) to address issues including learning to express anger in a socially acceptable manner and learning to focus on accepting responsibility for his own actions as opposed to blaming others.
- It took time to find a clinical psychologist but Carey ultimately commenced treatment with Dr. Gray, a licensed clinical psychologist, in January.
- As of February 21, 2018 Carey was in compliance with his MAP contract. Defendant’s Exhibit 48B.
- A month later, Carey missed two sessions in a row with Dr. Gray and she terminated him from treatment based on those absences. Dr. Gray was willing to take him back, and after Carey received the interim suspension, Nugent arranged for him to go back to Dr. Gray for several sessions even though that resulted in exceeding the $2,000 cap set forth in condition 18. Carey ceased all treatment with Dr. Gray in June.
- It appears that Carey has now attended the 12 sessions recommended by Dr. Behrem. However, Carey told Nugent that he only agreed to evaluation and treatment under the November 21, 2016 consent order because he wanted to have the settlement approved by the court. He did not find the sessions with Dr. Gray to be helpful and called them "worthless."
- This was unfortunate because Nugent - who is not unsympathetic to Carey - wanted Carey to address the issues identified in Dr. Behrem’s report.
- Specifically, Dr. Behrem’s report - confirmed by Dr. Behrem’s testimony at the hearing concluded that Carey demonstrates a personality disorder marked by a tendency toward grandiosity, suspiciousness, belief that persons who criticize him are engaged in a vendetta or conspiracy against him, argumentativeness, holding grudges, difficulty expressing anger in a socially appropriate manner, and a tendency to blame others for any setbacks. Board Exhibit 27 at 13-15.
- These personality issues partially explain but do not excuse the violations found above. Moreover, they help to explain certain of Carey’s other actions that are evident from the record or were referred to at the hearing. These include a number of intemperate, vituperative and inappropriate filings while Carey was representing himself, 10 Carey’s filing of a lawsuit against witnesses and other participants in the BAR-16-15 proceeding even though he had agreed to the November 21, 2016 order that resulted from that proceeding, and Carey’s filing of a lawsuit against both T.B. and the lawyer who had represented her at the PA hearing, along with a subpoena for a polygraph examination of T.B.
- Dr. Behrem testified that the recommended treatment for a personality disorder is usually long term psychotherapy.
- In testifying on August 17, Carey, for what appears to be the first time, acknowledged his problems and stated that he needs help to overcome them. He testified that he does not have health coverage and needs that to obtain the mental health treatment he needs.11
- Condition 18 required that Carey shall follow the recommendations of the evaluating psychologist. With respect to the recommendation that Carey engage in at least 12 sessions of psychotherapy with a licensed psychologist, the court finds that he complied with the letter – but not the spirit - of that condition.
- Carey demonstrates some features of ADHD, and another of Dr. Behrem’s treatment recommendations was that Carey consult a licensed psychiatrist and comply with any recommended psychiatric medications for ADHD. Carey declined to follow that recommendation and violated condition 18 in that respect.
- The Board also faults Carey for a social media posting critical of the District Court judge who presided over the PA hearing (Board Exhibit 53), for social media postings attacking the character of T.B. (Board Exhibits 53-55), and for a social media campaign against Pine Tree Legal Assistance (Board Exhibits 14, 15, 17, 18, 71-73, and 76). While these actions were intemperate and inappropriate and while they are relevant to an overall assessment of his behavior, the court does not find that they constituted specific violations of the rules of professional conduct.
As previously discussed, a further hearing will be scheduled to consider what sanctions should be imposed in light of the violations found above.
Dated: September 21, 2018
Thomas D. Warren
Justice, Superior Court
1As the court indicated in its April 30 interim suspension order, the complainant’s testimony at the PA hearing appeared to describe conduct that also met the definition of unlawful sexual contact. 17-A M.R.S. §§ 255-A(l)(A), 25l(l)(C)(l).
2Pursuant to 18 U.S.C. § 2265(d)(3), the complainant in the PA case will only be identified by her initials because this order may be available on the internet.
3Counsel for Carey argued that Defendant’s Ex. 2 consists of a complete set of the text messages that were exchanged leading up to and including the events of that weekend. The court’s review of Exhibit 2, however, shows that some of those texts come from an earlier time and are out of order and some texts are apparently omitted.
Starting at the top of page 11 with Carey’s request that T.B. tape the Clemson game at 7pm that evening, Defendant’s Exhibit 2 appears to contain the sequence of texts exchanged on the three days beginning March 23 with the following exceptions: pages 19-21 are apparently out of order and should follow page 22, there are one or more pages of texts omitted between pages 18 and 22 and between pages 25 and 26, and an additional page of texts is omitted from Defendant’s Exhibit 2 but was admitted as Board Exhibit 91.
4In her testimony at the hearing T.B. clarified that she had intended to insert the word "not" in the text that appears at page 21 of Defendant’s Exhibit 2 (so that it should have read "because I was not there to spread my legs for you").
5See In re Harkins, 899 A.2d 755, 758-60 (D.C. Ct. of Appeals 2006). The court is not aware of any Maine precedent on this issue.
6There is no doubt that Carey was aware of the suspension at least as of May 3, when he signed and served a motion to dissolve the interim suspension and a motion for recusal (captioned "Motion to Dissolve & for Stay of Temporary Suspension, for Recusal Change of Venue, to Reschedule Dissolution Hearing, Objection to Receivership & in the Alternative, to Appoint Designated Receiver") that was filed with the court on May 4, 2018. Carey also acknowledged in a telephone conversation with Attorney Michael Hodgins on May 3 that he had been suspended.
7See Board Exhibit 50.
8At the hearing counsel for Carey referred to these as "TV video ads," August 17, 2018 Tr. 91, but the record does not reflect whether they were ever broadcast on television.
9In addition, M.R.Evid. 408(a) only precludes the evidence of settlement negotiations to prove or disprove a disputed claim or to impeach by prior inconsistent statement. In this case Board Exhibits 8A through 8E are not being offered for either of those purposes but are being offered to show that Carey offered a pecuniary benefit to T.B. to induce her to retract her testimony.
10See this court’s May 4, 2018 and July 19, 2018 orders, responding to Carey’s "Motion to Dissolve & for Stay of Temporary Suspension, for Recusal Change of Venue, to Reschedule Dissolution Hearing, Objection to Receivership & in the Alternative, to Appoint Designated Receiver," filed May 4, 2018, and Carey’s "Motion for a Mental Examination of False Accuser," filed July 17, 2018.
11Asked why he was running for District Attorney instead of addressing these issues, Carey both insisted that he would win-without any recognition of the inconsistency between his campaign and his suspension from the practice of law - and also stated that he needed the job to get health insurance coverage so he could get treatment.
Board of Overseers of the Bar v. In Re Christopher R. Drury
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Docket No.: BAR-18-11
Issued by: Maine Supreme Judicial Court
Date: September 24, 2018
Respondent: Christopher R. Drury
Bar Number: 009403
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Christopher R. Drury has petitioned for reinstatement to the Bar of the State of Maine. The Court has been notified that upon review of that petition and related attachments, Bar Counsel has elected to stipulate to Mr. Drury's reinstatement pursuant to M. Bar R. 29(f)(l), subject to the Court's approval. The Court has reviewed Mr. Drury's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Christopher R. Drury, Bar #009403, is hereby reinstated to the Bar of the State of Maine with all the rights and responsibilities hereto.
Dated: September 24,2018
Roland A. Cole
Chief Justice
Maine Superior Court
Board of Overseers of the Bar v. John H. Branson, Esq.
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Docket No.: BAR-18-15
Issued by: Maine Supreme Judicial Court
Date: September 27, 2018
Respondent: John H. Branson, Esq.
Bar Number: 007632
Order: Disabililty Suspension
Disposition/Conduct: Order of Disability Suspension
M. Bar R. 27(a)
By filing dated September 27, 2018, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order suspending Attorney John H. Branson, for disability-related reasons. Included with the Board’s Petition was an Affidavit of Deputy Bar Counsel.
For good cause shown by the Board, John H. Branson appears to be a disabled attorney, currently posing a threat to clients, the public and to the administration of justice.
Accordingly, this Court ORDERS that John H. Branson is suspended from the practice of law in Maine until further Order of this Court.
DATED: September 27, 2018
Roland A. Cole
Superior Court Chief Justice
Sitting as Single Justice by designation
Board of Overseers of the Bar v. John H. Branson, Esq.
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Docket No.: BAR-18-15
Issued by: Maine Supreme Judicial Court
Date: September 27, 2018
Respondent: John H. Branson, Esq.
Bar Number: 007632
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon consideration of Petition filed by the Board of Overseers of the Bar (Board), the Court Orders the following:
As of this date, the Board is appointed as the Receiver of John H. Branson’s law practice. As such the Board shall have the sole authority to:
- Secure the professional files, client funds and file property of the Branson law office;
- Obtain signatory authority over all Branson law office bank accounts (IOLTA and operating/office accounts);
- Obtain access to Branson’s computer hardware and software (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and if necessary, the closed client files;
- Give priority attention to client matters which are open and time sensitive;
- Notify all courts that the Board is serving as Attorney Branson’s Receiver until further order of this Court;
- Notify clients or former clients that the Board is serving as Receiver to the Branson law practice and provide opportunity for clients to consult with the Receiver or retrieve their property; and
- The Receiver shall access and utilize Branson’s operating and IOLTA accounts to prudently and appropriately manage the practice. The Receiver may pay expenses, as she deems appropriate given available funds or anticipated receivables to the firm. The Receiver may take other action as necessary and appropriate to formally manage the Branson law practice.
As a service to the bar, the Board acknowledges that it shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) from Branson’s law practice, the Board may be reimbursed from those assets.
Likewise, the Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Attorney Branson shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Branson, the Board shall undertake payment for those disbursements.
The Board shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R 32.
The Board so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
The Board shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receiver shall file a status report with the Court.
Dated: September 27, 2018
Roland A. Cole
Superior Court Chief Justice
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Jeffrey P. White, Esq.
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Docket No.: BAR-18-3
Issued by: Maine Supreme Judicial Court
Date: October 3, 2018
Respondent: Jeffrey P. White, Esq.
Bar Number: 003804
Order: Reprimand Suspension
Disposition/Conduct: Suspension Amended per Order of 10/22/18 Order on Motion to Amend Judgment
Dilatory Conduct in Representation, Communication, Safekeeping and Return
This matter is before the Court for determination of sanctions following the Court’s July 30, 2018, decision finding many violations of the Maine Rules of Professional Conduct after a hearing on the Board of Overseers of the Bar’s four-count disciplinary information.
The sanctions hearing was held on September 27, 2018, at the Capital Judicial Center in Augusta. At the sanctions hearing, the Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Jeffrey P. White was represented by Attorney Daniel L. Cummings. Attorney White elected not to appear in person.
In its July 30 order, the Court had requested that the Board present reports of any prior disciplinary actions in which Attorney White had been involved. In response, the Board presented reports of two prior disciplinary actions before the Grievance Commission, GCF No. 11-148 and GCF No. 14-152. Each included findings of violations of the Rules of Professional Conduct but resulted in dismissals with warnings.
Pursuant to Bar Rule 21(b)(3), a dismissal with a warning is "a private non-disciplinary sanction." However, when there is a subsequent disciplinary proceeding involving the same individual, Bar Rule 21(b) directs that "sanctions issued under this Rule shall be provided to tribunals in any subsequent proceedings in which the respondent has been found to have committed misconduct as evidence of prior misconduct bearing upon the issue of the proper sanction to be imposed in the subsequent proceeding." Thus, the history of GCF No. 11-148 and GCF No. 14-152 and the findings of violations of the Rules of Professional Conduct may be considered in determining the appropriate sanction in this proceeding.
A. GCF No. 11-148
On November 17, 2011, a Grievance Commission panel reviewed a complaint and issued a decision that concluded as follows:
[A client] retained Attorney White in February 2010 to file for bankruptcy. However, in March, 2010, they agreed that work on [the client’s] case should be postponed. Approximately a year later, [the client] attempted to retrieve his file material and the unused portion of his retainer. He called and went to Attorney White’s office. Attorney White, however, was unavailable to communicate with [the client] at either of those times. Attorney White made no subsequent effort to contact [the client] until after this grievance complaint was filed. Even though Attorney White was struggling to cover cases because an associate attorney had left his firm abruptly, he had a duty to timely respond to client . . .communications. Attorney White’s conduct in failing to respond to [the client] was a violation of M.R. Prof. Conduct 1.4(a)(4). Attorney White hired a new associate shortly after he failed to respond to [the client] and fully refunded the unearned portion of [the client’s] retainer. Because the misconduct was minor, there was little harm to the client, and the misconduct is unlikely to be repeated by this attorney, we dismiss the complaint against Attorney Jeffrey P. White with a warning to promptly respond to communications from his clients. (Emphasis added.)
As a result of that determination, including the panel’s finding that the moderating circumstances described within former Maine Bar Rule 7.l(d)(4)(A) were present, the panel directed that the complaint be dismissed with a warning to Attorney White to refrain from such misconduct in the future.
B. GCF No. 14-152
On August 20, 2014, a Grievance Commission panel reviewed a complaint and issued a decision that concluded as follows:
[A client] complains that Attorney Jeffrey P. White failed to provide competent representation in violation of M.R. Prof. Conduct 1.1; failed to act with reasonable diligence in violation of M.R. Prof. Conduct 1.3; failed to reasonably keep her informed or respond to her requests for information in violation of M.R. Prof. Conduct 1.4; and engaged in conduct prejudicial to the administration of justice in violation of M.R. Prof. Conduct 8.4(d).
A comprehensive review of the record establishes that Attorney White represented [the client] and her former husband in a Chapter 13 Bankruptcy proceeding that he ultimately converted to Chapter 7 Bankruptcy proceedings after [the client’s] divorce, and subsequent inability to make payments under the Chapter 13 plan. Although Attorney White ultimately obtained a discharge in bankruptcy for [the client] through the Chapter 7 proceeding, the record establishes that he failed to keep his client reasonably informed of the status of her matter, or to comply with her reasonable requests for information. In addition, as a result of Attorney White’s failure to respond to inquiries and requests by the Bankruptcy Trustee, the Trustee filed a Motion to Dismiss the Chapter 13 proceedings, and subsequently recused himself from [the client’s] Chapter 7 proceedings. Based upon those facts, probable cause is established to find that Attorney White violated M.R. Prof. Conduct 1.4, and M.R. Prof Conduct 8.4(d).
However, the Panel concludes that Attorney White’s misconduct was minor, and that there was little or no injury to [the client], the public, the legal system, or the profession directly attributable to his actions. The Panel further concludes that there is little likelihood of repetition by Attorney White. Accordingly, the complaint against Attorney White is dismissed with this warning to refrain from any similar misconduct in the future. (Emphasis added.)
As a result of that determination, including the panel’s finding that the moderating circumstances described within former Maine Bar Rule 7.1(d)(4)(A) were present, the panel directed that the complaint be dismissed with a warning to Attorney White to refrain from such misconduct in the future.
A review of the dismissals with warnings in GCF No. 11-148 and GCF No. 14-152 indicates that the ethical violations in each, that the Grievance Commission hoped would not be repeated, are similar to some of the ethical violations found regarding Counts I, II and IV of the Board’s information. Therefore, the prior Grievance Commission determinations are relevant to the issue of sanctions pursuant to Bar Rule 21(b).
The prior Grievance Commission reports, described above, were the only factual matters added to the record at the sanctions hearing.
As part of his closing argument, Attorney White’s counsel argued that two of the Court’s fact findings in the July 30 order should be vacated. Those findings were (i) a determination, with regard to Count I, that the retainer paid in Count I was never placed in a client trust account, thus violating Rule of Professional Conduct 1.15(a), and (ii) the finding with respect to Count II that, at the July 12, 2018, hearing, Attorney White had testified falsely when he stated that he had been retained by the client to pursue a bankruptcy rather than a foreclosure, when retention to pursue a foreclosure had been previously stipulated to.
On the record, the Court denied the request to vacate its prior findings. After the Court’s July 30 order, Attorney White had initiated no effort to seek reconsideration or alteration or amendment of those findings. At the sanctions hearing, Attorney White was not present and offered no testimony to contest or seek to clarify the Court’s prior findings.
Relevant to the sanctions issue, Attorney White argued, through counsel, though he presented no evidence, that he currently has over 100 clients involved in various stages of bankruptcy proceedings and that he anticipates winding down his practice after another couple of years. Although not presented as evidence, the Court accepts these representations by counsel as part of the record for consideration of sanctions.
At this point, before addressing sanctions directly, the Court would also incorporate by reference the order of July 30. The findings and conclusions stated in the July 30 order will not be repeated in this order.
Following the July 30 order, the Law Court, on August 28, 2018, issued an opinion, with two separate opinions, purporting to comprehensively address proper practice for imposition of sanctions. Board of Overseers of the Bar v. Prolman, 2018 ME 128, - A.3d -. The first of the two three-Justice opinions, id. ¶¶ 28-50, suggested that, to determine and review sanctions for professional misconduct, the Court adopt a process very similar to the process for setting and reviewing criminal sentences imposed by State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993).1
In Hewey, the Court had directed that, based on the circumstances of the particular crime as committed, the court should identify a "basic sentence" and then, with the "basic sentence" determined, evaluate aggravating and mitigating factors to set the final sentence and the determination of whether all or any of the final sentence should be suspended and the defendant placed on probation with conditions. Id. at 1154-55. In Prolman, the first three-Justice opinion directed the Court to examine Bar Rule 21 (c) together with American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar. Assoc. 1992) to determine a "presumptive sanction" then, as in Hewey, apply aggravating and mitigating factors to set a final sanction and to determine whether any or all of that final sanction should be suspended with the attorney placed on probation with conditions. Prolman, 2018 ME 128, ¶¶ 31-35, -A.3d -.
Unfortunately, as with the "basic sentence" in Hewey, there is no available statistical or experiential basis in Maine practice for a judge imposing a sentence or a disciplinary sanction in any particular case to determine what that basic sentence or presumptive sanction ought to be. And, determination of the presumptive sanction, as suggested in the first separate opinion in Prolman, is far more difficult than the process for setting the basic sentence as directed in Hewey. Unlike a criminal sentencing where a sentence is imposed on each count of a charging document, here, the Court must consider an overall sanction for four separate instances of professional misconduct, with the appropriate sanction to be informed by the two prior Grievance Commission determinations regarding violations of the Rules of Professional Conduct.
Determination of the presumptive sanction according to the formula suggested in the first three-Justice opinion is also difficult in the attorney discipline setting because many of the findings of violations of the Rules of Professional Conduct made in the violation determinations present issues identical or nearly identical to factors that would be considered as aggravating or mitigating factors in the later stages of the formula determination. For example, findings of dilatory conduct, violations of duties owed to a client, and the extent to which the lawyer did or did not plan or intend the ethical violation that support findings of specific ethical violations cannot be double counted when, later in the formula, the court is identifying aggravating and mitigating circumstances.
While separation of determination of the presumptive sanction from determination of aggravating and mitigating factors may conceptually sound simple, in practice it is very difficult. The heavily structured Hewey-type analysis suggested in the first separate opinion in Prolman is difficult if not impossible to apply in cases of multiple violations. As the second separate opinion notes, the formula suggested in the first separate opinion is "an unnecessarily cumbersome process." Prolman, 2018 ME 128, ¶ 51, - A.3d -.
The Court itself had to decide imposition of sanctions for professional misconduct in In re Nadeau, 2017 ME 121, 168 A.3d 746. Nadeau involved six separate actions leading to charged violations of the Code of Judicial Conduct, with the Court finding ethical violations incident to five of those actions. The Court utilized no formula to determine the sanction. Rather, it looked at the misconduct at issue and the individual’s history of ethical violations, and then applied its collective discretion to impose a two-year suspension from the practice of law as an appropriate sanction.
To address sanctions in this case, the Court will proceed according to the second separate opinion in Prolman. See Prolman, 2018 ME 128, ¶¶ 51-59, - A.3d -. It will utilize the analytical structure set in Bar Rule 21(c)-looking at the events involved in each violation and applying the Court's discretion and experience to set an appropriate overall sanction, considering the facts of the four separate counts and the prior record.
Comparing the facts found regarding Counts I and II in the Court’s July 30 order and the information provided in the history of GCF No. 11-148, the facts underlying the ethical violations are strikingly similar. In each, a client retained Attorney White to provide legal services; the services were not provided; the client engaged in an extended effort to contact Attorney White, with limited success, to seek return of the funds paid for which no work had been done; and, in each case, Attorney White only responded and returned the funds after the client had filed a grievance complaint.
In responding to the complaint in Count I in this action, Attorney White called the complaint that followed a long effort to seek return of funds a "clarion call" that motivated him to reexamine his practice and improve client communication. That "clarion call" term may sound like a good excuse to minimize the misconduct incident to Count I, however, unfortunately, the claim of a new understanding, a "clarion call," rings hollow when GCF No. 11-148 reveals almost identical conduct-failing to adequately maintain communications with clients and failing to return a retainer for services not performed. The conduct in GCF No. 11-148 was also similar to that addressed in Count II where, again, the client was attempting to contact Attorney White, for quite some time, to get money back and only received a response after filing a complaint with the Board.
Considering the problems addressed in Counts I and II relating to failure to do requested work, the additional facts from GCF No. 11-148 indicate a disturbing pattern, extending over four or five years, of getting retainers from clients, not doing the work for which the retainer was given, and then, when the clients began efforts to seek return of the funds, ignoring or disregarding communications from the clients and failing to respond to clients until after a complaint was filed with the Board.
The report in GCF No. 14-152 further confirms the continuing pattern over a four- or five-year period of failing to communicate with clients, failing to keep clients reasonably informed of the activities for which Attorney White was retained and failing to respond to requests for information. Most notably, in August 2014, when the report in GCF No. 14-152 was issued, Attorney White had already received and held the retainer at issue in Count II for a year without performing any legal services for or communicating with his clients. The misconduct that the report in GCF No. 14-152 stated "is unlikely to be repeated by this attorney," was being repeated in what became Count II as the Grievance Commission report issued.
The facts in GCF No. 14-152 also indicate, as occurred in Counts III and IV, a failure to comply with the statutes and rules governing bankruptcy proceedings, including failure to respond to inquiries and requests made by the Bankruptcy Trustee in the GCF No. 14-152 matter, relating to the change in the client’s marital status, thus engaging in conduct prejudicial to the administration of justice.
The total conduct on which the sanctions must be imposed includes (1) several instances, indicating a pattern, of failing to act on a client’s behalf with reasonable diligence; (2) several instances, indicating a pattern, of failing to keep clients reasonably informed and respond to requests for information or the return of funds; (3) several instances, indicating a pattern, both in dealing with clients and dealing with the bankruptcy court, of dilatory conduct in representation; (4) several instances, indicating a pattern, of failing to return paid but unearned fees upon termination of representation; (5) three instances of failure to timely and accurately inform the Bankruptcy Court of facts regarding the status of cases or of documents filed in cases; (6) two instances of failure to place funds in client trust accounts; (7) one instance of giving false testimony to this Court regarding the purposes for which Attorney White was retained in Count II; (8) trying to cover up and misrepresent to the Bankruptcy Court and the Trustee the true extent of his retainer addressed in Count IV; and (9) the failure to properly supervise staff finding in Count IV based on Attorney White’s blaming his staff, not accepting responsibility himself, for some of the conduct incident to his efforts to cover up the true extent of his retainer in Count IV.
Regarding the violations of professional obligations found by this Court in regard to Count Ill, the Court accepts the Bankruptcy Court’s observations that those violations "were not particularly serious." Accordingly, for the Count III violations of the Rules of Professional Conduct, the Court will impose a sanction of a public reprimand, Bar Rule 21(b)(5).
Turning to the factors to be reviewed in determining the extent of the sanctions for the violations found regarding Counts I, II, and IV, Bar Rule 21(c) provides the guide:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
Review of the 21(c) factors:
First factor, violation of a duty owed to a client, to the public, to the legal system, or to the profession: Counts I and II involves violation of a duty owed to a client; Count IV involves violations of obligations to the legal system, here the Bankruptcy Court, and Counts I, II, and IV involves failures of Attorney White’s duties to the profession by his repeated dilatory conduct, failure to adequately communicate with clients, and failure to promptly and honestly communicate accurate information about the case he was involved with to the Bankruptcy Court and/or the Bankruptcy Trustee.
Second Factor, whether the lawyer acted intentionally, knowingly, or negligently: Most of Attorney White’s actions resulting in findings of professional ethics violations were negligent. However, (1) when Attorney White became aware that clients were attempting to communicate with him seeking the return of funds in Counts I and II, he knowingly avoided communication with the clients until Grievance Commission actions were filed; (2) Attorney White knowingly underreported his retainer in Count IV so he could have the funds available to spend in his operating account rather than, as would have been required prior to Bankruptcy Court approval, keeping the funds in his trust account; and (3) Attorney White intentionally made a false statement to the Court with regard to the purpose for which he was retained in Count II.
Third factor, the amount of the actual or potential injury caused by the lawyer's misconduct: In two instances, Counts I and II, the clients were injured by Attorney White's failure to do the work for which he was retained, and they suffered some undefinable loss as result of his delay in returning the funds that should have been repaid to the clients. However, overall, these injuries were not significant. There could have been potential injury to creditors in the bankruptcy proceeding addressed in Count IV as a result of the underreporting of Attorney White's agreed retainer. This underreporting could have harmed the creditors by leaving those creditors unaware of the larger amount of funds available to the bankrupt client that White intended to use as a retainer, without approval of the Bankruptcy Court. However, evidence of actual injury as opposed to potential injury in this area is limited.
Fourth factor, existence of aggravating or mitigating factors: As a significant aggravating factor, the Court notes a continuing practice of poor administrative and financial management of Attorney White’s practice which led to several of the ethical violations. The Court must emphasize that this poor management of practice, listed as an aggravating factor, is not, in effect, double counting the several ethical violations already found. It does recognize that Attorney White disregarded the warnings in GCF No. 11-148 and GCF No. 14-152 that improvement of his practice management was needed. Instead, Attorney White betrayed the Grievance Commission’s trust that "the misconduct is unlikely to be repeated." These aggravating factors are in addition to the findings of ethical violations, such as the false statement to this Court, which are not double counted as aggravating factors.
Looking to mitigating factors, Attorney White’s counsel argues that Attorney White has provided services at reasonable cost to some clients, particularly in bankruptcy matters, who, except for Attorney White’s willingness to provide services at a relatively reasonable cost, might not have been able to have the services of a lawyer at all. Making services available at reasonable fees is important to serve part of the Maine public that needs to be served, and the Court accepts the representation that Attorney White has provided some of his services for clients who might otherwise not be able to be served by a lawyer. The Court considers this a mitigating factor.
Addressing the totality of the violations, the Court notes that the Board is asking for at least a two-year suspension, with all but some time in excess of six months of the suspension to be suspended and Attorney White to be placed on probation with his practice monitored and supervised during the probationary period. An actual suspension in excess of six months is requested so that Attorney White must demonstrate improvement in his practice management and get court approval prior to being reinstated to the practice of law. See Bar Rule 29(a).
Viewed in the context of this case, the recommended two-year overall suspension may sound reasonable. However, the Court must consider sanctions imposed in comparative cases, if comparative cases exist. In In re Nadeau, 2017 ME 121, 168 A.3d 746, the Supreme Judicial Court imposed a suspension of two years for a much more serious combination of present and past ethical violations.2 With the Nadeau case sanction as a comparative sanction guide, it is difficult to justify imposing an overall two-year suspension here.
Respecting the Board’s recommendation, the Court is also concerned that because of Attorney White’s apparently limited resources, there would not be adequate support to pay a reasonable rate for a monitor for Attorney White’s practice, as the Board suggested. The Court is unwilling to solicit any attorney to essentially do Attorney White’s practice management work for him without pay. If he wants to be reinstated, Attorney White will have to reorganize and improve his practice management on his own.
In this case, the Court determines that it must impose a sanction that includes a suspension sufficiently long that Attorney White will have to petition for reinstatement and thus be able to demonstrate to the Board, and any reviewing court, that he has made the changes necessary to avoid the problems that led to the many ethical violations in this matter and those found in GCF No. 14-152 and GCF No. 11-148. Accordingly, the Court determines that an actual suspension from the practice of law for nine months will be imposed.
To give Attorney White time to provide the required notices, Bar Rule 31, and disengage from his practice, that suspension will run from November 19, 2018, to September 16, 2019.
The Court does not suspend any of the suspension and does not place Attorney White on any probation. Upon petitioning for reinstatement, it will up to Attorney White to demonstrate that he has adequately addressed the problems that led to this suspension.
A copy of this order shall be provided to the Offices of the United States Bankruptcy Court and the Offices of the United States Trustee in Portland and Bangor.
Therefore, the Court ORDERS:
On Count III, the Court issues a Public Reprimand.
On Counts I, II, and IV, the Court imposes a nine-month suspension from the practice of law, subject to the terms and conditions of this Order.
Dated: October 3, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1Hewey was not cited in the first three-Justice opinion, but the sanction determination process it recommends is virtually identical to the so-called Hewey formula adopted a quarter century ago.
2In a subsequent case involving an additional violation of the Code of Judicial Conduct, In re Nadeau, 2018 ME 18, 178 A.3d 495, the Court imposed a reprimand.
Board of Overseers of the Bar v. Jeffrey P. White, Esq.
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Docket No.: BAR-18-3
Issued by: Maine Supreme Judicial Court
Date: October 11, 2018
Respondent: Jeffrey P. White, Esq.
Bar Number: 003804
Order: Amended Order
Disposition/Conduct: Amended Order
AMENDMENT ORDER
To correct an error in stating the term of the nine-month suspension from the practice of law in the original Order, dated October 3, 2018, the first full paragraph that appears on page 18 of that order is amended to read as follows:
"To give Attorney White time to provide the required notices, Bar Rule 31, and disengage from his practice, that suspension will run from November 19, 2018, to August 19, 2019 September 16, 2019."
Dated: October 11, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jeffrey P. White, Esq.
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Docket No.: BAR-18-3
Issued by: Maine Supreme Judicial Court
Date: October 22, 2018
Respondent: Jeffrey P. White, Esq.
Bar Number: 003804
Order: Amended Order
Disposition/Conduct: Order on Motion to Amend Judgment
Defendant, Attorney Jeffrey P. White, filed a motion asking this Court to amend the terms of its Sanctions Order dated October 3, 2018 (the "Order"), which orders the suspension of Attorney White from the practice of law commencing November 19, 2018, which motion was supported by the Affidavit of Jeffrey P. White.
With cause shown and with consent of Bar Counsel, this Court grants the motion and hereby amends the Order such that Attorney White’s suspension shall run from January 1, 2019 through September 30, 2019. All other terms and conditions of the Order shall remain in full force and effect.
Dated: October 22, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Ralph M. Clark
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Docket No.: BAR-18-13
Issued by: Maine Supreme Judicial Court
Date: Spetember 26, 2018
Respondent: Ralph M. Clark
Bar Number: 000839
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, the Board of Overseers of the Bar is appointed Limited Receiver for final closing of the law practice of Ralph M. Clark. Pursuant to this Order, the Board as Limited Receiver shall:
- place an office closure notice in the Kennebec Journal;
- secure any professional files, client property, and client data of Ralph M. Clark;
- attempt to return client property;
- inventory client files; and
- store and/or dispose of client files in accordance with the Maine Rules of Professional Conduct.
As a service to the bar, the Board shall act as Limited Receiver on a pro bono basis. However, the Board may seek reimbursement of costs associated with Receivership duties and inactive attorney Ralph M. Clark shall be the first choice for source of payment for any disbursements made in this matter if sufficient assets are available.
The Board shall act as Limited Receiver until discharged by the Court in accordance with M. Bar R 32(c).
The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such files relate except as may be necessary to carry out an order of the court including any order under M. Bar R 32.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: September 26, 2018
A. Mark Horton
Justice
Maine Superior Court
Board of Overseers of the Bar v. Jackie T. DiGiacomo, Esq.
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Docket No.: GCF# 17-445
Issued by: Grievance Commission
Date: November 27, 2018
Respondent: Jackie T. DiGiacomo, Esq.
Bar Number: 004620
Order: Admonition
Disposition/Conduct: Responsibilities Regarding Non-Lawyer Assistants, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On November 27, 2018, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Jackie T. DiGiacomo, Esq. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on September 6, 2018.
At the hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley, and Attorney DiGiacomo appeared without counsel.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for Panel C’s review and consideration. The complainant, David P. Mooney, Esq., had earlier been provided with a copy of the parties’ proposed Stipulated Report. At that hearing, Assistant Bar Counsel Kelley confirmed that Attorney Mooney had been notified of the hearing date and had been provided with a copy of the proposed Report in advance of the hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Panel makes the following disposition:
Respondent Jackie T. DiGiacomo, Esq. (Attorney DiGiacomo) of Waterville, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney DiGiacomo was admitted to the Maine Bar in 2010 and she is currently engaged in solo practice.
On December 15, 2017, Attorney David P. Mooney filed his complaint against Attorney DiGiacomo who then filed her initial response on January 25, 2018. Attorney Mooney was afforded the opportunity for a rebuttal and supplemental response, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
On April 19, 2018 a panel of the Grievance Commission reviewed Attorney DiGiacomo’s actions in this matter and found probable cause to believe that she had engaged in misconduct subject to sanction under the Maine Bar Rules. As a result, that review panel directed Bar Counsel to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
This grievance complaint concerns Attorney DiGiacomo’s failure to properly supervise a nonlawyer assistant formerly with her office. In March of 2014, Attorney DiGiacomo accompanied a friend to visit the friend’s uncle who was in failing health in a Massachusetts nursing home facility. While there, Attorney DiGiacomo witnessed the friend’s uncle execute his last will and testament; however, there was no Massachusetts notary public present at the signing. Attorney DiGiacomo observed that the friend’s uncle was competent and coherent at the time the document was executed, and was also made aware that he was not expected to live much longer.
After the friend’s uncle executed the document, and they had left the nursing home, the friend asked Attorney DiGiacomo if her Assistant, who was a Massachusetts notary public, would notarize the document. Attorney DiGiacomo was initially reluctant to make that request, but ultimately agreed, and when she returned to her office, she informed her Assistant of her friend’s request. Attorney DiGiacomo advised her Assistant that she had personally witnessed the signing of the document, and told the Assistant that she did not have to notarize the document. The Assistant notarized the document for Attorney DiGiacomo’s friend on that same day.
In Attorney DiGiacomo’s response letter to Bar Counsel’s investigative inquiry she agreed and confirmed that she had asked her Assistant to notarize the document for her friend, and that while she was concerned that what she was asking might be improper, she did not know the Massachusetts laws with regard to notarization. Attorney DiGiacomo believed that her Assistant would have told her if her request was improper. She has acknowledged in hindsight; however, that she exercised poor judgment in making the request of her Assistant to so notarize the document.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. In that regard, Attorney DiGiacomo agrees and admits that her conduct in this matter violated M. R. Prof. Conduct 5.3(b) [Responsibilities Regarding Non-Lawyer Assistants] and 8.4(d) [conduct prejudicial to the administration of justice]. The panel notes that Attorney DiGiacomo has now taken responsibility for her transgressions and there is little likelihood of repetition by her. The panel also notes that her conduct ultimately caused little or no injury to a client, the public, the legal system, or the profession. At the disciplinary hearing, Attorney DiGiacomo expressed her remorse for lack of understanding and her misconduct.
Since the evidence supports a finding and Attorney DiGiacomo agrees that she did in fact violate those above-referenced portions of the Maine Rules of Professional Conduct, the Panel has analyzed the proper sanction factors warranted under M. Bar R. 21. In that regard, under the required procedures of M. Bar R. 13(e)(6)(8), the Panel considered the existence or absence of any prior sanction record. Accordingly, upon that analysis for imposing a proper sanction concerning the many factors under M. Bar R. 21(c), including its finding of the presence of all the required prerequisites under M. Bar. R. 21(b)(1), the Panel finds that a public non-disciplinary Admonition against Attorney DiGiacomo under M. Bar R. 21(b)(1) is the appropriate sanction.
Therefore, the Panel accepts the agreement of the parties, including Attorney DiGiacomo’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an ADMONITION to Jackie T. DiGiacomo, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: November 27, 2018
Robert Hark, Esq., Panel Chair
Justin LeBlanc, Esq., Panel Member
Marjorie Medd, Public Member
Board of Overseers of the Bar v. Glen Niemy
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Docket No.: GCF# 18-061
Issued by: Grievance Commission
Date: November 27, 2018
Respondent: Glen Niemy
Bar Number: 000829
Order: Admonition
Disposition/Conduct: Registration, Violate or attempt to violate any provision of the MBR or the MRPC
M. Bar R. 13(e)(7)(D)
On November 27, 2018, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Glen Niemy. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 20, 2018.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Glen Niemy appeared without counsel. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel’s review and consideration.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
- Respondent Glen Niemy of Salem, Massachusetts was, until the imposition of an administrative suspension, at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Mr. Niemy was admitted to the Maine bar in 1977 and he is currently subject to an administrative non-disciplinary suspension.
- On October 17, 2017 Mr. Niemy was administratively suspended by the Board for his failure to report CLE credit and his failure to register and pay the fees required by Maine Bar Rules.
- Mr. Niemy did not file the affidavit certifying his compliance with Maine Bar Rule 4(k) as required within 30 days after that suspension date.
- On February 16, 2018, Bar Counsel docketed a sua sponte grievance complaint against Mr. Niemy for to his failure to comply with the affidavit requirements.
- The Board sent a letter on February 21, 2018 to Mr. Niemy’s address as provided by him in his most recent registration with the Board, notifying him of the consequence of his failure to file that required affidavit.
- The Board sent a letter on April 26, 2018 which requested a response from Mr. Niemy to Bar Counsel’s investigation of the sua sponte grievance complaint.
- Mr. Niemy failed to notify the Board of his change of address within 30 days as required by Maine Bar Rule 4(b), and as a consequence, Mr. Niemy did not respond to the investigation of this grievance matter.
- On July 19, 2018, a panel of the Grievance Commission reviewed Mr. Niemy’s actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
- On August 16, 2018, Mr. Niemy contacted Bar Counsel regarding his administrative suspension, and the pending disciplinary matter.
- On October 1, 2018 Mr. Niemy executed and filed an affidavit indicating that he had not been practicing law, and that he had no actual clients at the time of his administrative suspension in October of 2017.
Mr. Niemy violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar.
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Mr. Niemy violated his duties to the legal system by failing to complete the annual registration requirements in 2017 and by failing to file the required notification affidavit once he was administratively suspended. Ultimately, Mr. Niemy did file the affidavit as contemplated by M. Bar R. 4(K), indicating that he had not been practicing law, and that he had no actual clients at the time of his administrative suspension. As a result, it appears that there was no actual injury to any client, or the public resulting from Mr. Niemy’s delay in filing his affidavit.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Glen Niemy agrees that he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that Mr. Niemy’s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Mr. Niemy. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Niemy.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Glen Niemy pursuant to M. Bar R. 13(e)(10)(B).
Date: November 27, 2018
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Marjorie M. Medd, Public Member
Board of Overseers of the Bar v. James M. Whittemore
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Docket No.: BAR-18-9
Issued by: Maine Supreme Judicial Court
Date: November 30, 2018
Respondent: James M. Whittemore
Bar Number: 007767
Order: Disbarment
Disposition/Conduct: Competence, Scope of Representation, Diligence, Communication, Fees, General misconduct; Illegal conduct; Deceit/dishonesty; and Conduct Prejudicial to the Administration of Justice
As a result of the Board of Overseers of the Bar’s (the Board) filing of its Petition for Immediate Interim Suspension, the Court issued an August 7, 2018 Order suspending attorney James M. Whittemore. Through its subsequent September 11, 2018 filing of an Information, the Board commenced further disciplinary action. Thereafter, the Board filed amended pleadings which alleged additional misconduct by Mr. Whittemore. Counsel for Mr. Whittemore filed timely responses to all of the Board’s pleadings.
Prior to hearing in this matter, the parties notified the Court that they had reached agreement as to findings and a stipulated sanction. Appearing at the November 30, 2018 final hearing were Aria Eee, Acting Bar Counsel and Justin Andrus, Attorney for James Whittemore. Also present at the hearing were Complainant Amanda Ward with her attorney Joseph Gousse, Esq. and James Whittemore. The other complainants in this matter were contacted by the office of the Bar Counsel, but declined to attend the hearing or could not be reached.
Having reviewed the pleadings and the parties’ stipulations and the testimony of James Whittemore the Court finds as follows:
Pursuant to the mandatory reporting requirements of M. R. Prof. Conduct 8.3(a), on March 21, 2018, Attorney William Childs filed a grievance complaint alleging misconduct against Mr. Whittemore. That complaint outlined Whittemore’s mishandling and suspected conversion of approximately $151,981.06 derived from the assets of the Virginia Hilton Testamentary Trust, a matter then pending in the Cumberland County Probate Court.
Attorney Childs provided several documents within his complaint which established that, as of October 18, 2016, Mr. Whittemore had affirmed his receipt of five checks intended for distribution to the individual beneficiaries of the Hilton Trust. Those checks totaled $151,981.06.
In a June 21, 2017 status conference, Mr. Whittemore informed the Probate Court that he would prepare a Show Cause Order for an accounting of the Trust assets. He never did so. During that conference, Mr. Whittemore also confirmed his receipt and retention of the beneficiaries’ five checks within his client trust account.
By February 20, 2018, Attorney Childs became concerned about the lack of financial distribution to the Trust beneficiaries. In response to Attorney Childs’ inquiry of that date, Mr. Whittemore acknowledged "a problem," and reported that no portion of the $151,981.06 remained in his trust account.
In response to the Board’s allegations, Mr. Whittemore offers no dispute and no explanation. Accordingly, the Court finds that Mr. Whittemore engaged in violations of M. R. Prof. Conduct 1.3 [diligence]; 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; fraud, deceit or dishonesty; and conduct prejudicial to the administration of justice].
The Court is aware that as a result of Mr. Whittemore’s professional misconduct, the Trust beneficiaries have filed or will be filing claims with the Lawyer’s Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute those claims. Mr. Whittemore also reports that he does not have the funds to fully reimburse the claimants or the LFCP.
On July 13, 2018, a former client of Mr. Whittemore, referred to herein as A.W., filed a grievance complaint with the Board. Relevant to that complaint are the circumstances leading up to A.W.’s retention of Mr. Whittemore.
In July 2013, A.W.’s long-time domestic partner had a fatal motorcycle accident, leaving behind A.W. and their three children. One of those three was an adult son. Shortly after the accident, A. W. and her son consulted with Mr. Whittemore for representation in a wrongful death action. A.W. and her son subsequently signed Mr. Whittemore’s engagement letter and its attached contingent fee agreement.
Despite his service as counsel for A.W. and her son, Mr. Whittemore repeatedly failed to respond to A.W.’s multiple status inquiries. His failure to communicate with his clients constituted a violation of M. R. Prof. Conduct 1.4. By March 2018, A.W. retained a new attorney for assistance with contacting Mr. Whittemore. The new attorney did initiate contact, and Mr. Whittemore reported that he would review the file and then follow up with A.W. However, Mr. Whittemore never did so, in violation of M. R. Prof. Conduct 1.3 [diligence], 1.4[communication]; and 8.4(c) [dishonesty]. From April 2018 through June 2018, A.W.’s successor counsel and/or his staff made several inquiries and file requests. At times, Mr. Whittemore promised to respond to the requests of successor counsel. However, he failed to follow through with any of those promises.
On July 10, 2018 an employee of successor counsel’s firm appeared at Mr. Whittemore’s law office and made a final request for A. W.’s client file. At that time, Mr. Whittemore admitted that he did not have the file. His failure to safeguard A.W.’s property prejudiced her interests and constituted a violation of M. R. Prof. Conduct 1.15. Before the end of the July 10 discussion, Mr. Whittemore suggested that A.W.’s successor counsel "take whatever action is necessary," concerning his misconduct, including contacting the Board.
Beyond Mr. Whittemore’s neglect of A.W. and her son, Bar Counsel received additional information of further serious misconduct. In that regard, an agent of the American Automobile Association (AAA) reported to successor counsel that Mr. Whittemore had settled the two wrongful death claims for the policy limits of $100,000. The AAA agent further reported that the settlement funds had been made directly payable to Mr. Whittemore’s client trust account. Mr. Whittemore acknowledges, and the Court so finds, that he failed to notify A.W. and her son that he had received their respective settlement proceeds. Based upon Mr. Whittemore’s acknowledgment, the Court finds that he improperly received and converted the entire amount of those settlement proceeds, thereby violating M. R. Prof. Conduct 1.2[scope of representation]; 1.4[communication]; and 8.4(a)(b)(c)(d) [other misconduct, deceit and illegal conduct]. The Court is aware that as a result of Mr. Whittemore’s professional misconduct, A.W. and her son have or will be filing claims with the Lawyer’s Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute those claims. Mr. Whittemore also reports that he does not have the funds to fully reimburse the claimants or the LFCP.
On or about August 20, 2018, Angela Twitchell, Manager of the Brunswick Topsham Land Trust (BTLT), filed a grievance complaint against Mr. Whittemore. Ms. Twitchell’s complaint alleged misappropriation of funds similar to that recounted previously herein.
In that regard, Ms. Twitchell reported that the BTLT had entered into an agreement with the family of Geoff Lachance to purchase a conservation easement on the Lachance farm. On or about January 31, 2017, Mr. Whittemore received $15,000.00 to hold in escrow pending the closing on the BTLT’s purchase. That closing became delayed and remains pending for reasons unrelated to this matter.
On or about August 9, 2018, (following the Court’s appointment of a Receiver for the Whittemore law office), Ms. Twitchell discovered that the $15,000.00 was no longer in any of Mr. Whittemore’s escrow or other bank account(s). Based upon his lack of any explanation for that loss, the Court finds that Mr. Whittemore converted or otherwise improperly removed the BTLT funds for his own benefit. By doing so, Mr. Whittemore violated M. R. Prof. Conduct 1.5(a) [fees] and 8.4(a)(b)(c) [general misconduct; illegal conduct; fraud, deceit or dishonesty].
The Court is aware that as a result of Mr. Whittemore’s professional misconduct, Angela Twitchell and Mr. LaChance have or will be filing claims with the Lawyer’s Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute those claims. Once again, Mr. Whittemore reports that he does not have the funds to fully reimburse the claimants or the LFCP.
On October 4, 2018 the Board received Kathleen Munroe’s grievance complaint. Ms. Munroe’s complaint alleged that on August 20, 2015 she and her (now deceased) husband had provided Mr. Whittemore with a $1,500.00 retainer for representation regarding a construction dispute involving the Munroe’s Westport Island retirement home.
Thereafter, Ms. Munroe remained in contact with Mr. Whittemore for updates concerning her legal matter. Mr. Whittemore communicated no information that assured Ms. Munroe he was still providing her with any legal services. His failure to appropriately respond to his client’s inquiries was a violation of M. R. Prof. Conduct 1.3 [diligence] and 1.4 [communication].
Following the Court’s August 7, 2018 issuance of the Interim Suspension Order, Ms. Munroe had contact with the Court-Appointed Receiver, Judy Metcalf, Esq. Approximately one month later, Attorney Metcalf informed Ms. Munroe that a retainer balance of $1,250.00 should have been, but was not, then present in Mr. Whittemore’s trust account. In fact, by that time, there were no available funds from any of Mr. Whittemore’s accounts.
Based upon his lack of any explanation for that deficiency, the Court finds that Mr. Whittemore performed minimal legal services for Ms. Munroe and then converted the remaining advanced fee for his own use. By doing so, Mr. Whittemore violated M. R. Prof. Conduct 1.3 [diligence]; 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; fraud, deceit or dishonesty; and conduct prejudicial to the administration of justice].
The Court is aware that as a result of Mr. Whittemore’s professional misconduct, Ms. Munroe has or will be filing a claim with the Lawyer’s Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute that claim. Mr. Whittemore also reports that he does not have the funds to fully reimburse Ms. Munroe or the LFCP.
On October 15, 2018 the Board received another client complaint against Mr. Whittemore. In that regard, Donald Bibber alleged that from late 2017 into 2018 he had paid Whittemore a total of $18,790 for legal representation concerning a right-of-way easement issue.
Mr. Bibber reported that Whittemore has never rendered an accounting for legal services he purportedly provided to Mr. Bibber. Nonetheless, whenever Whittemore requested additional funds, Mr. Bibber obliged that request, trusting that Whittemore was performing legal work to properly earn the funds.
Mr. Whittemore agrees that he received fees from Mr. Bibber but acknowledges that he cannot account for how he earned those fees. Thus, based upon all of the relevant facts, the Court finds that Mr. Whittemore improperly requested and received fees from Mr. Bibber without performing the requisite legal work, in violation of M. R. Prof. Conduct 1.5(a) and 8.4(a)(b)(c)(d).
The Court is aware that as a result of Mr. Whittemore’s professional misconduct, Mr. Bibber may be filing a claim with the Lawyer’s Fund for Client Protection (LFCP). Mr. Whittemore does not intend to dispute that claim. Mr. Whittemore also reports that he does not have the funds to fully reimburse Mr. Bibber or the LFCP.
M. Bar R. 21 (c) delineates the grounds for lawyer discipline, the range of sanctions which may be imposed for ethical misconduct, and the factors that the Court must consider prior to imposing any such discipline.
M. Bar R. 21(c) states:
Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer’s misconduct; and
- the existence of any aggravating or mitigating factors."
The ABA Standards for Imposing Lawyer Discipline (ABA Standards) define the purposes of lawyer disciplinary proceedings, the public nature of those proceedings and the purpose of the Standards themselves. The ABA Standards are designed to promote:
":(1) consideration of all factors relevant to imposing the appropriate level of sanction in an individual case;
(2) consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline;
(3) consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions." Standard 1.3, ABA Standards for Imposing Lawyer Sanctions.
In a recent appellate decision, a six-member panel of the Maine Law Court was evenly divided on the issue of whether M. Bar R. 21(c) incorporates the ABA Standards as a "matter of law."1 Although there is an even divide among the Court over the precise import of the ABA Standards, at a minimum, the Court has concluded that an adjudicator should consult those Standards as guidance in making its determination of appropriate sanctions.
Notably, M. Bar R. 21(c) is identical to ABA Standard 3.0. That Standard mandates the court’s consideration of "(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating and mitigating factors." In applying the ABA Standards, intentional acts of misconduct require the imposition of more significant sanctions than misconduct which results from a lawyer’s negligence. Likewise, the amount of injury, or potential injury, to a client, the public, the legal system or the profession is a significant factor. Generally, the most severe sanction of disbarment appears to be reserved for intentional acts of misconduct, or misconduct which results in significant injury, or a combination of both.
Based upon the above-referenced misconduct, the Court finds that Mr. Whittemore violated M. R. Prof. Conduct: 1.1 [competence]; 1.2 [scope of representation]; 1.3 [diligence]; 1.4 [communication]; 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; deceit/dishonesty; and conduct prejudicial to the administration of justice].
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the duty that Mr. Whittemore violated as a result of his behavior. In each instance, Mr. Whittemore’s conduct demonstrated violations of duties owed directly to his clients. In addition, Mr. Whittemore violated duties that he owed to the court, to the public, and to his profession.
The correlating ABA Standard for the rules concerning clients and their property is 4.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
4.1 Failure to Preserve Client’s Property
4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
4.4 Lack of Diligence
4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
The correlating ABA Standard for the rules concerning unlawful conduct is 5.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
5.1 Failure to Maintain Personal Integrity
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice. . . fraud, extortion, misappropriation, or theft. . . or an attempt. . . to commit any of these offenses.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has also considered Mr. Whittemore’s mental state in committing the various acts of professional misconduct. Based upon the Court’s findings and Mr. Whittemore’s lack of dispute with those findings, the Court concludes that his actions were intentional in nature.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the actual and or potential injury resulting from Mr. Whittemore’s misconduct. As noted above, in each of the five counts, there was serious and intentional misconduct that exacted both financial and emotional injury to vulnerable clients.
Pursuant to M. Bar R. 21(c) and ABA Standards 9.2 and 9.3, the Court has considered the applicable aggravating and mitigating factors. While the correlating ABA Standards themselves warrant Mr. Whittemore’s disbarment, the following aggravating factors are also implicated:
(b) dishonest or selfish motive;
(c) a pattern or misconduct;
(d) multiple offenses;
(h) vulnerability of victim(s);
(i) substantial experience in the practice of law; and
(k) illegal conduct
Conversely, there appear to be no mitigating factors for this court’s consideration.
As is evident, the aggravating factors enumerated herein provide a stark contrast to the lack of mitigating factors present in this proceeding. That fact coupled with the serious harm resulting from Mr. Whittemore’s misconduct require this Court to impose the sanction of disbarment.
As such, the Court hereby Orders that James M. Whittemore is disbarred for a period of ten years from the practice of law. Any subsequent reinstatement shall occur through Whittemore’s petition filing, pursuant to the Maine Bar Rules.
In the event that the Lawyers’ Fund for Client Protection (LFCP) pays any claims on behalf of Mr. Whittemore (including after the effective date of this order), he shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees. Compliance with this provision shall be a consideration for the Court upon any petition for reinstatement.
Dated: November 30, 2018
Nancy D. Mills
Justice, Maine Superior Court
Sitting as Single Justice, by Designation
1In Board of Overseer of the Bar v. Prolman, 2018 ME 28, three of the justices concluded that: "Rule 21(c) incorporates the framework and methodology of the ABA sanction standards, thereby requiring that framework to be explicitly applied after a finding of lawyer misconduct." (supra at paragraph 46.) Conversely, the three remaining justices concluded that there was: "no need to incorporate the ABA’s lengthy and detailed ‘Standards for Imposing Lawyer Sanctions’ into the Maine Bar Rules as a matter of law. Although an adjudicator should consult that extended discussion when it is relevant to a particular sanction decision, the requirement that an adjudication must track that lengthy and minute detail in order to impose any sanction would create an unnecessarily cumbersome process." (supra at paragraph 51.)
Board of Overseers of the Bar v. Clifford B. Strike, Esq.
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Docket No.: GCF# 18-075
Issued by: Grievance Commission
Date: November 30, 2018
Respondent: Clifford B. Strike, Esq.
Bar Number: 008319
Order: Admonition
Disposition/Conduct: Communication
M. Bar R. 13(e)(7)(D)
On November 30, 2018, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Clifford B. Strike, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 13, 2018.
At the stipulated hearing, the Board was represented by Acting Bar Counsel Aria Eee and Attorney Strike appeared pro se. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel’s review and consideration.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
- Attorney Strike was at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Attorney Strike was admitted to the Maine bar in 1996 and he is currently in private practice in Portland, Maine.
- Eric C. Olson retained Attorney Strike to represent him regarding outstanding warrants for violation of his Maine probation on January 23, 2017, then paying him a $2,500.00 retainer.
- Attorney Strike attempted to negotiate a resolution for the outstanding probation violations; however, Mr. Olson was residing and working in the Commonwealth of Massachusetts, and was unwilling to turn himself in on the outstanding Maine warrants for his arrest.
- Mr. Olson was arrested on new criminal charges in the Commonwealth of Massachusetts. After serving a sentence for those charges, he was held on the outstanding Maine probation violation warrants.
- Mr. Olson was returned to the State of Maine on the outstanding warrants and held in the York County Jail.
- Attorney Strike arranged for Mr. Olson to have a court appearance on his probation violations on May 1, 2017; however, Mr. Olson was not transported to court for that appearance.
- Due to time constraints on May 1, 2017, Attorney Strike was not able to meet with Mr. Olson at the York County Jail; however, his office subsequently notified Mr. Olson of a new court date.
- Mr. Olson was upset by Attorney Strike’s lack of immediate communication, and hired new counsel on May 8, 2017, demanding a return of his retainer.
- Mr. Olson subsequently filed a fee arbitration petition and Attorney Strike failed to file a written reply, or to appear at the February 22, 2018 fee hearing. As a result, the Fee Arbitration Panel ruled in Mr. Olson’s favor. Attorney Strike promptly returned Mr. Olson’s entire retainer.
- During the period of his incarceration, Mr. Olson, his fiancee, and other members of his family, made numerous contacts with Attorney Strike and his staff regarding the status of his case.
- Due to the number of repeated contacts, Attorney Strike acknowledges that he became frustrated, and that he instructed his staff to interact with Mr. Olson and his family, advising them that Strike would let them know when there was a change in the status of the case.
- Attorney Strike acknowledges that he failed to personally communicate with Mr. Olson during a period of time, or to further discuss his case, and that as a result, he failed to keep his client reasonably informed as to the status of his matter.
Attorney Strike has acknowledged that due to the unique circumstances of the situation, he became frustrated with his client, and his client’s family’s, repeated demands for information, and that he delegated the responsibility for communicating with them to his staff. As a result, his client felt that he was not being kept informed of the status of his case, and ultimately discharged Attorney Strike for that reason. Attorney Strike has further acknowledged that he should have had more direct contact with his client in order to keep him reasonably informed as to the status of his case, and that as a result of his failure to do so, he violated MRPC Rule 1.4(a)(3).
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Attorney Strike failed to recognize his client’s need for personal attention by him, and delegated responsibility for communication with the client to his staff. As a result, his client did not understand the status of his matter. However, Attorney Strike was diligent in all other aspects of his representation, and there was no actual adverse effect upon the outcome of his client’s case as a result of the failure of communication. Of note, the current complaint was brought sua sponte by Bar Counsel as the result of a fee arbitration decision, and was not the result of any grievance filed by a client. Therefore, it appears that there was little or no actual injury to any client, or the public resulting from Attorney Strike’s conduct.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Attorney Strike agrees that he did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that Attorney Strike’s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Strike. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Strike.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Attorney Strike pursuant to M. Bar R. 13(e)(10)(B).
Date: November 30, 2018
Thomas H. Kelley, Esq., Panel Chair
Vendean V. Vafiades, Esq., Panel Member
Marjorie M. Medd, Public Member
Board of Overseers of the Bar v. Christopher G. Limberis, Esq.
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Docket No.: BAR-18-1
Issued by: Maine Supreme Judicial Court
Date: November 29, 2018
Respondent: Christopher G. Limberis, Esq.
Bar Number: 000946
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is Receiver Gregory P. Dorr’s Report of Receiver dated November 13, 2018. For good cause shown and without objection, Receiver Dorr’s final Report of Receiver is accepted by the Court.
Furthermore, it is ORDERED that Gregory P. Dorr is discharged as Receiver of the law practice of Christopher G. Limberis. The Court extends it gratitude to Attorney Dorr for his efforts in protecting the clients and closing the law office of Christopher G. Limberis, Esq.
Dated: November 29, 2018
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. John H. Branson, Esq.
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Docket No.: BAR-18-15
Issued by: Single Justice
Date: December 18, 2018
Respondent: John H. Branson, Esq.
Bar Number: 007632
Order: Receiver Discharge Order Disability Suspension Terminated
Disposition/Conduct: Reinstatement from Disability Suspension
The Court, having conferred with Bar Counsel and with counsel for Mr. Branson, and with their agreement, hereby ORDERS that the appointment of a Receiver and the disability suspension imposed pursuant to this Court’s order of September 27, 2018 shall terminate as of December 14, 2018. This order is conditioned upon, and incorporates by reference, a confidential stipulation and agreement of the parties filed this date under seal. Mr. Branson is to be reinstated to the active practice of law in Maine as of December 14, 2018.
The Receiver shall file a report as required, also under seal, on or before January 1, 2019.
SO ORDERED:
Date: December 18, 2018
Roland A. Cole, Chief Justice
Maine Superior Court sitting by designation
Board of Overseers of the Bar v. William B. Gillespie
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Docket No.: Bar-18-16
Issued by: Maine Supreme Judicial Court
Date: December 6, 2018
Respondent: William B. Gillespie
Bar Number: 009881
Order: Order of Surrender
Disposition/Conduct: Order of Surrender
By its filing of October 26, 2018, the Board of Overseers of the Bar (the Board) petitioned this Court for an Order for Receivership and for disability suspension concerning William B. Gillespie. In response to the Board's pleadings, Mr. Gillespie filed no objections to the requested relief. Counsel for the parties, Attorney Sheilah McLaughlin and Acting Bar Counsel Aria Eee, engaged in subsequent negotiations and then notified the Court of their agreement as to formal resolution of this matter.
Mr. Gillespie was admitted to the Maine bar in 2005. He has maintained a solo practice in Topsham, Maine focusing primarily on probate and estate planning matters. Within the last two years, however, Mr. Gillespie has become medically disabled to such a degree that it has resulted in his neglect of various court matters, including those wherein he served as a fiduciary. At the time the Board sought Receivership of his law practice, Mr. Gillespie’s license had already been administratively suspended for his failure to renew his bar registration. Mr. Gillespie currently resides in an assisted living facility and his files are located at a former home secured in a storage pod. Pursuant to M. Bar R. 25(a) and the parties’ agreement, the Court has considered Mr. Gillespie’s voluntary licensure surrender.
Therefore, it is hereby ORDERED:
William Gillespie’s surrender from the Maine bar is accepted, pursuant to M. Bar R. 25(a). Effective this date, his name shall be removed from the list of members who are admitted to practice law before the courts of the State of Maine. It is further ordered that Mr. Gillespie shall comply with all provisions of M. Bar R. 31 that are not otherwise delineated as duties for the Receivers. The Court’s Order for Receiver is incorporated by reference herein. Mr. Gillespie shall cooperate with Receivers, Suzanne Johnson, Esq. and Special Counsel Angela Morse in the wind down of his law practice. As well, Mr. Gillespie shall, within, ten (10) days after the effective date of the surrender, file with Bar Counsel the notification affidavit required by M. Bar R. 31 (h).
Finally, if the Lawyers’ Fund for Client Protection (LFCP) pays any future claims on his behalf, Mr. Gillespie, or his estate, shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees. This Order is a matter of public record pursuant to M. Bar R. 25(d)(3).
Date: 12/6/18
Ann M. Murray, Justice
Superior Court
Sitting as Single Justice by Designation
Board of Overseers of the Bar v. William B. Gillespie
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Docket No.: BAR-18-16
Issued by: Maine Supreme Judicial Court
Date: December 6, 2018
Respondent: William B. Gillespie
Bar Number: 009881
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
Upon consideration of Petition filed by the Board of Overseers of the Bar (Board), the Court Orders the following:
As of this date, Suzanne L. Johnson, Esq., and the Board (through its Special Counsel) are appointed as the Co–Receivers of William B. Gillespie’s law practice. As such the Co–Receivers shall have the sole authority to:
- secure any professional files, client property and client data of William Gillespie;
- inventory the client files;
- give priority to client matters that may be identified as open, active and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client or office accounts.
As a service to the bar, Attorney Johnson and the Board shall serve as Co–Receivers on a pro bono basis, although if there are sufficient assets (including receivables) from Gillespie’s law practice, the Co-Receivers may be reimbursed from those assets.
Likewise, the Co–Receivers shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Gillespie shall be the first choice for source of payment for those disbursements. If insufficient assets are available from the law office, the Board of Overseers may be an alternate payment source for expenses related to the law office closure.
Attorney Johnson and the Board shall act as Co–Receivers until discharged by the Court either by Motion or in accordance with M. Bar R 32.
The Co–Receivers so appointed shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
Attorney Johnson and the Board shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receiver shall file a status report with the Court.
Date: 12/6/18
Ann M. Murray, Justice
Sitting as Single Justice by Designation
Board of Overseers of the Bar v. Robert J. Stolt, Esq.
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Docket No.: BAR-18-8
Issued by: Maine Supreme Judicial Court
Date: December 10, 2018
Respondent: Robert J. Stolt, Esq.
Bar Number: 001406
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar’s Petition for Discharge filed on November 29, 2018. For good cause shown and without objection, the Board’s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Receiver of the law practice of Robert J. Stolt. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: December 10, 2018
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Scott G. Adams, Esq.
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Docket No.: BAR-17-10
Issued by: Maine Supreme Judicial Court
Date: December 18, 2018
Respondent: Scott G. Adams, Esq.
Bar Number: 008019
Order: Decision Affirmed
Disposition/Conduct: Reprimand Decision Affirmed
MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision No. Mem 18-101
Docket No. Cum-18-137
v.
SCOTT G. ADAMS
Argued December 11, 2018
Decided December 18, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HUMPHREY, JJ.
MEMORANDUM OF DECISION
Scott G. Adams appeals from an order of a single justice of the Maine Supreme Judicial Court (Hjelm, J.) that affirmed the decision of a grievance panel to reprimand Adams for violating Maine Rules of Professional Conduct 4.4(b), 8.4(c), and 8.4(d). See M. Bar R. 13(e)(10)(C), 21(b)(5). In reviewing the decision of the panel directly, cf. Friends of Cong. Square Pork v. City of Portland, 2014 ME 63, ¶ 7, 91 A.3d 601; Cobb v. Bd. of Counseling Prof’ls Licensure, 2006 ME 48, ¶ 10, 896 A.2d 271, we conclude that, contrary to Adams’s contentions, the panel did not abuse its discretion, make any errors of law, or make findings unsupported by substantial evidence in the record when it determined that a reprimand was the proper sanction to impose upon Adams. See M. Bar R. 13(e)(10)(C), 21(b)(5); cf. Somerset Cty. v. Dep't of Corr., 2016 ME 33, ¶14, 133 A.3d 1006.
The entry is:
Judgment affirmed.
Kent G. Murdick II, Esq. (orally), Kent G. Murdick II, Esq., PC, Newcastle, for appellant Scott G. Adams
Alan P. Kelley, Esq. (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
Board of Overseers of the Bar v. April M. Luna
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Docket No.: GCF# 18-057
Issued by: Grievance Commission
Date: December 12, 2018
Respondent: April M. Luna
Bar Number: 005757
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate or attempt to Violate any provision of the MBR or the MRPC, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On November 27, 2018, with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e) concerning alleged misconduct by the Respondent, April M. Luna. This disciplinary proceeding had been commenced by the filing of a formal disciplinary petition by the Board of Overseers of the Bar (the Board) on August 20, 2018. At the hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley (Bar Counsel). Ms. Luna did not appear.
Respondent April Luna was at all times prior to her administrative suspension and relevant hereto an attorney duly admitted to practice law in the State of Maine.
Effective October 17, 2017, Ms. Luna was administratively suspended by the Board pursuant to M. Bar R. 4(g)(2) due to her failure to comply with the annual registration requirement of M. Bar R. 4(a) and the continuing legal education credit hours requirement of M. Bar R. 5(a). On or about February 16, 2018, Bar Counsel filed a sua sponte grievance complaint alleging that Ms. Luna had violated M.R. Prof. Conduct 8.4(a) and M. Bar R. 4(k)(8) based on her failure to file the required "notification affidavit" attesting to her compliance with M. Bar R. 4(k) following her October 17, 2017 administrative suspension.
On or about February 21, 2018, Bar Counsel mailed to Ms. Luna a letter notifying her of her obligation to file an affidavit pursuant to M. Bar R. 4(k)(8). Ms. Luna did not respond. On or about April 26, 2018, Bar Counsel mailed Ms. Luna a letter requesting her comments and response to the February 16, 2018 grievance complaint. Ms. Luna did not respond.
On July 19, 2018, a three-member panel of the Grievance Commission reviewed the grievance complaint and the results of Bar Counsel’s investigation pursuant to M. Bar R. 13(d). Following such review, that panel found probable cause to believe that Ms. Luna had engaged in misconduct subject to sanction under the Maine Bar Rules and authorized Bar Counsel to prepare and file a formal disciplinary petition pursuant to M. Bar R. 13(e).
Accordingly, on August 20, 2018, Bar Counsel filed a formal disciplinary petition alleging that Ms. Luna had violated M. Bar R. 4(k)(8) and M.R. Prof. Conduct 8.l(b) and 8.4(a)(d). Ms. Luna did not respond to the petition.
Ms. Luna did not appear at or otherwise participate in the November 27, 2018 hearing in this matter, nor was good cause for such failure to appear alleged.
As of the date of the hearing, Ms. Luna remains suspended from the practice of law in Maine and has not addressed the administrative failures that caused her suspension to be imposed.
Ms. Luna’s failure to respond to the formal disciplinary petition in this matter constitutes her admission of the factual allegations and misconduct alleged therein. M. Bar R. 13(e)(3), 20(a). Furthermore, Ms. Luna’s failure to appear at the disciplinary hearing without good cause constitutes an admission of the factual and misconduct allegations that were the subject of the hearing. M. Bar R. 20(b). For these reasons, the panel accepts the facts and misconduct alleged in the disciplinary petition and at hearing. Specifically, the panel finds that Ms. Luna violated M. Bar R. 4(k)(8) and M.R. Prof. Conduct 8.l(b) and 8.4(a)(d).
Having concluded that Ms. Luna violated M. Bar R. 4(k)(8) and M.R. Prof. Conduct 8. l(b) and 8.4(a)(d), the panel must issue an appropriate sanction. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The Grievance Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
2. whether the lawyer acted intentionally, knowingly, or negligently;
3. the amount of the actual or potential injury caused by the lawyer's misconduct; and
4. the existence of any aggravating or mitigating factors.
In this matter, Ms. Luna violated her duties to the legal system by failing to complete the annual registration requirements, by failing to file the required notification affidavit once she was administratively suspended, by failing to comply with the continuing legal education requirements applicable to her, and by failing to respond to Bar Counsel’s inquiries in this matter. Ms. Luna’s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Respondent’s continuing failure to file an affidavit complying with Maine Bar Rule 4(k)(8) is an aggravating circumstance.
For the above-stated reasons, the panel concludes that the appropriate disposition of this case is a public reprimand to Ms. Luna, which is now hereby issued and imposed upon her pursuant to Maine Bar Rule 2l(b)(5).
Dated: December 12, 2018
Robert S. Hark, Esq., Panel Chair
Justin D. LeBlanc, Esq., Panel Member
Marjorie M. Medd, Public Member
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: BAR-18-4 & BAR-16-15
Issued by: Maine Supreme Judicial Court
Date: December 20, 2018
Respondent: Seth T. Carey
Bar Number: 009970
Order: Suspension
Disposition/Conduct: Knowingly disobey an obligation under the rules of a tribunal, Commit a criminal or unlawful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer
After a three day hearing in August, the court issued a decision on September 12, 2018 finding that Attorney Seth Carey had violated the Maine Rules of Professional Conduct in three significant respects and had also violated the conditions of a November 21, 2016 order issued in a prior disciplinary proceeding, BAR-16-15.
On November 14, 2018 the court held a hearing to determine what sanctions should be imposed for the violations in question. At that time the court heard presentations and argument from Deputy Bar Counsel, from counsel for Carey, from several persons who spoke on Carey’s behalf, and from Carey himself. In addition, Carey and his counsel submitted a number of letters and statements on Carey’s behalf.
Guiding Principles
The purpose of bar discipline is not punishment but protection of the public, the legal profession, the courts, and the justice system as a whole from attorneys whose conduct demonstrates unfitness to practice law.
Maine Bar Rule 21 (c) provides in pertinent part as follows:
In imposing a sanction after a finding of lawyer misconduct, the Single Justice . . . shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
The Supreme Judicial Court has not resolved whether the ABA Standards referred to in Rule 21(c) have been fully incorporated into the Maine Bar Rules or whether those standards are designed to provide guidance without being binding. See Board of Overseers v. Prolman, 2018 ME 128 ¶ 25, 193 A.3d 808. In the Prolman decision, three Justices opted in favor of full incorporation and three Justices concluded that full incorporation would be unnecessarily cumbersome. The remaining Justice has separately expressed the view that the latter approach is more appropriate. See Board of Overseers v. White, BAR-18-03 (order filed October 3, 2018) (Alexander, J.).1
For purposes of this case, the court will consider each of the factors set forth in Maine Bar Rule 21(c) and the accompanying ABA Standards. The court has not found any directly comparable cases but will also generally consider the range of disciplinary sanctions that have been imposed by the Supreme Judicial Court in other cases. Consideration of sanctions imposed in other cases is not expressly listed in the ABA Standards or in Rule 21(c), but the Supreme Judicial Court has stated that bar discipline should be consistently imposed to the extent possible. Board of Overseers v. Rodway, 470 A.2d 790, 791 (Me. 1984). In applying the ABA Standards, courts in other jurisdictions have also looked to the sanctions imposed in prior cases. See, e.g., cases collected in the ABA’s Annotated Standards for Imposing Lawyer Sanctions (2015) at 130-31, 245-46, 308-09.
Assessing the Individual Violations
The duties violated by Carey were duties owed to the public and to the legal system.2 In each case the court needs to consider the nature and severity of the violations and whether the violations were intentional, knowing, or negligent.
- The court found that Carey violated Rule of Professional Conduct 8.4(b) by engaging in unwanted physical advances that rose to the level of criminal conduct in the form of unlawful sexual touching and assault. September 12, 2018 order ¶¶ 11-12 and 19-23. These were violations of his duties to the public. See ABA Standard 5.1. In particular, groping a female tenant on one occasion and pulling her head against his crotch on another occasion reflected adversely on Carey’s trustworthiness and fitness as a lawyer. Those actions were performed intentionally.3
Considered in light of the factors in ABA Standard 5.1, the above conduct, while serious, does not fall in the most serious range. The conduct in question did not involve dishonesty or fraud. It did not arise in the course of a lawyer-client relationship. The court does not minimize the severity of Carey’s sexual harassment of a woman who was staying in his Rumford property because she was homeless, had been living in her car, and had fled an abusive relationship. Nevertheless — in contrast to the Prolman case — the woman in question was able to rebuff all of Carey’s unwanted advances, she was not highly vulnerable to sexual exploitation, and there is no evidence that she suffered psychological injury as a result of Carey’s conduct.
Under ABA Standard 5.12, the presumptive sanction for the conduct outlined in paragraphs 11-12 of the September 12, 2018 order would be a suspension.
- Carey’s failures to comply with the interim suspension order, set forth in paragraphs 26-38 of the September 12, 2018 order, were violations of his duties to the legal system. See ABA Standard 6.2; M. R. Prof. Conduct 3.4(c). Maine Bar Rule 21(a)(2) also expressly provides that willful violations of valid court orders shall be a ground for discipline.
In two respects — the violations set forth in paragraphs 26 and 34 — Carey’s actions can be attributed to negligence. His other violations were intentional.
The most problematic of these violations involved the continuation of Carey’s campaign for District Attorney after his interim suspension. On one hand, his continued campaign can be explained as founded on a hope that he would be reinstated in time to take office. However, and particularly after the court’s September 12 order, the continuation of his campaign can also be characterized as a serious misrepresentation to the voters of Androscoggin, Franklin, and Oxford counties as to Carey’s potential ability to practice law and serve as District Attorney if elected.
Individually, none of Carey’s remaining violations of the interim suspension order was particularly serious. Many were rejected by judges who were aware of the interim suspension. However, taken together, Carey’s actions constitute a pattern of violations and corner-cutting — such as by purporting to act as a paralegal in one case and by adding himself as a party on a notice of appeal in another case — that demonstrate intentional disobedience of the court’s order.
Among the factors set forth in ABA Standard 6.2 is whether the lawyer’s actions were taken for his own benefit. With one exception, Carey’s actions were not taken for his own benefit but were in furtherance of continued representation of his clients. The exception was his campaign for District Attorney, which was indisputably for Carey’s own benefit.
While none of Carey’s violations of the interim suspension order ultimately caused much actual interference with legal proceedings, both M. Bar R. 21(c)(3) and the relevant ABA Standards call for sanctions where a lawyer’s misconduct would potentially interfere with legal proceedings even if no actual interference occurred. Because Carey’s actions were intentional, the presumptive sanction under ABA Standard 6.22 would be a suspension. Given the potentially serious interference to the legal system caused by his campaign for District Attorney, an argument can also be made that the presumptive sanction would be disbarment under ABA Standard 6.21.
- Carey’s attempt to tamper with a witness, as set forth in paragraphs 39-46 of the September 12, 2018 order, is the most serious of the multiple acts of misconduct at issue in this proceeding. His actions constituted both a violation of his duty to the public and a violation of his duty to the legal system. See ABA Standards 5.11(a) (serious criminal conduct which includes intentional interference with the administration of justice) and 6.31(a) (intentional tampering with a witness causing potentially significant interference with the outcome of the legal proceeding). As noted in paragraph 45 of the September 12, 2018 order, Carey’s actions would constitute criminal offenses under three subsections of 17-A M.R.S. §§ 454(1).4 All are felonies. Those actions violated Rules 8.4(b) and 8.4(d) of the Maine Rules of Professional Conduct. They also violated Rules 3.4(b) and 3.4(f). The actions in question were intentional, and they caused potentially significant interference with the outcome of this proceeding.
Counsel for Carey points out in mitigation that Carey did not communicate with the witness directly but through her counsel. Non-disclosure agreements negotiated between counsel are legal and have been employed to settle claims of sexual harassment — although that practice has recently been subject to considerable criticism. In this case, however, Carey’s actions were not designed to settle a claim by the victim but were designed to have her disavow to the Board of Bar Overseers her prior sworn testimony at the PFA hearing and to have her file a motion in this proceeding to dismiss the disciplinary charges. Under Carey’s proposal, his arrangement with the victim and the pecuniary benefit to be provided was not to be disclosed to this court.
Offering a pecuniary benefit to induce a witness to recant her testimony and to withhold evidence is a direct attempt to undermine the integrity of the legal process. The presumptive sanction under ABA Standards 5.11(a) and 6.32(a) is disbarment.
Violation of the November 21, 2016 Order
Carey’s major violations of the prior suspension order consisted of the criminal conduct - both the unwanted physical advances and the witness tampering - that has been discussed above. As previously noted, that conduct was intentional. Carey’s remaining violation of the prior suspension order (his failure to consult a psychiatrist and comply with any recommendations with respect to ADHD medication) was intentional but not serious. While Carey exhibits some features of ADHD in the form of distraction and lack of attention to detail, his primary problems do not stem from distraction and lack of attention to detail. There is no reason to conclude that ADHD medication would have made any difference in the behavior that led to the violations found in the September 12 order.
Prior Disciplinary Offenses
Under the ABA Standards a lawyer’s prior disciplinary history can be considered under both Standard 8.0 and as an aggravating factor under Standard 9.22(a). ABA Standard 8.0 appears to be primarily addressed to misconduct that is the same or similar to prior misconduct. Although Carey’s prior disciplinary sanctions are similar in some respects to each other, they were not imposed for the same or similar offenses as the current violations found in the September 12, 2018 order. Accordingly, Carey’s prior disciplinary record will be considered as an aggravating factor under Standard 9.22(a).
Carey has received disciplinary sanctions on three prior occasions based on findings that he had violated the Bar Rules or the Rules of Professional Conduct:
- On February 9, 2009 (BAR-08-04) Carey received a suspension of six months and one day based on the following findings:
- On October 7, 2009 (BAR-08-10) Carey received a thirty day suspension — concurrent with the suspension imposed in BAR-08-04 — for conduct unworthy of an attorney in violation of former Rule 3.1(a). That violation was based on an incident where a female acquaintance reported an evening when Carey had become very angry and aggressive, had struck her German Shephard puppy, had refused her request that he leave her residence that night, and had again initially refused to leave the residence the following morning. While he denied certain of the allegations, Carey agreed that some of his actions could have caused the acquaintance to become upset and distraught and that his conduct was unworthy of an attorney in violation of former Rule 3.l(a). See October 7, 2009 order in BAR-08-10 at 3.
- In docket no. BAR-16-15 a negotiated order was entered imposing on Carey a two-year suspension effective November 21, 2016 — a suspension that was itself suspended for two years. By this time former Maine Bar Rule 3 had been replaced by the Maine Rules of Professional Conduct (effective August 1, 2009). The two year suspension was based on the following:
The November 21, 2016 order — consented to by Carey — was the culmination of proceedings in which a Grievance Commission Panel had originally issued a reprimand with multiple conditions and probation that included a two-year restriction prohibiting Carey from engaging in any sort of trial practice. The November 21, 2016 order recited that while Carey contended that the jurists’ accounts were inaccurate and that they had colluded in a conspiracy against him, he agreed that their testimony constituted sufficient evidence for the court to find that he had demonstrated a lack of core competence. November 21, 2016 order at 2-3.
Carey was admitted to the Maine Bar in 1996, and it is disturbing that after he had been practicing for almost ten years, four jurists felt strongly enough about his lack of core competence to have initiated or supported the bar complaint that resulted in the November 21, 2016 order.
Additional Aggravating Factors
In addition to his prior disciplinary record, there are three other aggravating factors:
The first is that multiple violations have been found in this case. See ABA Standard 9.22(d).
Second, Carey has engaged in what the court concludes constitutes a pattern of misconduct in addition to the violations specifically charged. See ABA Standard 9.22(c). This includes what the court has found to be intemperate, vituperative and inappropriate filings in this case and the filing of a baseless lawsuit against jurists, witnesses, and other participants in the proceeding in BAR-16-15 that led to the November 21, 2016 order — an order to which Carey had agreed. See September 12, 2018 order ¶ 59; Carey v. Board of Overseers, 2018 ME 119. The latter lawsuit made no sense other than as an angry, vindictive gesture on Carey’s part.
The latter suit is also part and parcel of Carey’s history of refusing to acknowledge the wrongful nature of his conduct, which is itself an aggravating factor under ABA Standard 9.22(g). Both in BAR-08-04 and in BAR-16-15 Carey was extremely combative, casting aspersions against opposing counsel and arguing among other things that judges were conspiring against him. See, e.g., February 12, 2009 order in BAR-08-04 at 5 (characterizing Carey’s testimony as "evasive, combative, and accusatory); id. at 7 (recounting intemperate statements in furtherance of Carey’s apparent belief that Bar Counsel was engaged in unethical conduct and that a judge was colluding with counsel against him); November 21, 2016 order at 2 (referring to alleged judicial conspiracy).
In this case the same angry refusal to accept responsibility was present up to the August hearing when Carey — although reiterating his denial that he had made unwanted physical advances — acknowledged that he needed help for a personality disorder which had resulted in numerous instances in which he had exercised bad judgment. This acknowledgment is a mitigating factor to be weighed below.
Mitigating Factors
Only one of the mitigating factors set forth in the ABA Standards is present in this case — personal or emotional problems. ABA Standard 9.32(c).5 Specifically, as set forth in Dr. Nadir Behrem’s June 25, 2017 report (Board Ex. 27) and in Dr. Behrem’s testimony on August 16, 2018, Carey has a personality disorder marked by a tendency toward grandiosity, suspiciousness bordering at times on paranoia, belief that persons who oppose or criticize him are engaged in a vendetta or conspiracy against him, argumentativeness, holding grudges, difficulty in expressing anger in a socially acceptable manner, and a tendency to blame others for any setbacks.6
At the three-day hearing in August and at the sanctions hearing on November 14, Carey did not dispute Dr. Behrem’s diagnosis. Moreover, all the evidence before the court supports the conclusion that Dr. Behrem’s diagnosis hit the nail on the head.
As the court has previously noted, Carey’s personality disorder partially explains but does not excuse his misconduct. Although Carey’s personality disorder has contributed to many of Carey’s violations, the public and the legal system are entitled to protection from the misbehavior of a lawyer whether or not that misbehavior is the product of a personality disorder in whole or in part.
For this reason, Carey’s personality disorder would not necessarily be a mitigating factor except that, for the first time as far as the court is aware, Carey conceded during the August hearing that he has a mental health problem. He acknowledged that his personality disorder has contributed to bar violations and other bad decisions on his part and that he needs help to overcome it.
Carey’s acceptance that he has a problem and his willingness to address the problem was reiterated at the sanctions hearing. This is a mitigating factor because until now, as noted above, Carey’s response to proceedings initiated by the Board of Overseers and to the resulting disciplinary sanctions has been marked by resentment, denial, and — at most — minimal and grudging compliance.
Another mitigating factor, although not listed in the ABA Standards, is that the court was presented with character references from several persons who spoke on Carey’s behalf, from additional persons who submitted emails, and from portions of affidavits that were read into the record. The individuals in question attended school with him or know him from civic activities in Rumford or from singing in the church choir. The court also received statements from four persons who themselves had been clients of Carey and provided praise for the legal assistance he had provided to them. The evidence before the court demonstrates that Carey believes, as one witness stated, in "standing up for the little guy." He cares very much about his clients and represents them passionately, sometimes to a fault.
Weighing Aggravating and Mitigating Factors
Ultimately, although Carey’s acknowledgment that he has a problem and his willingness to address the problem is certainly significant, the court finds that the aggravating factors — in particular, the multiple instances of misconduct and Carey’s prior disciplinary history — outweigh the mitigating factors in this case.
Sanction
The Board of Overseers is seeking disbarment, which is the sanction that would be called for under the ABA Standards. As noted above, Carey’s attempt to tamper with a key witness was very serious misconduct calling for a presumptive sanction of disbarment. He has also been found to have engaged in two other violations that call for presumptive sanctions of suspension and he has a significant prior disciplinary history. Under the circumstances, the Board’s proposed sanction of disbarment is entirely reasonable.
Carey and his counsel seek a seven or eight month "time served" suspension to be followed by an additional suspended suspension with additional conditions — primarily that he make diligent efforts to address his psychological issues and that he subject himself to a considerably more strenuous monitoring and mentoring program under the auspices of Attorneys Howaniec and Hornblower.7
In support of that request Carey and his counsel argued that all of the violations now before the court followed from a failure to tape a Clemson basketball game on March 23, 2018 and if that had not happened, Carey would not be before the court. The problem with this argument is twofold. First, Carey’s unwanted physical advances might not have come to the attention of the Board of Overseers in the absence of Carey’s response to the Clemson basketball game, but that does not excuse the conduct in question.
Second, Carey bears full responsibility for his conduct after this proceeding was initiated. Even if he believed the initiation of this proceeding was unjust, that does not excuse his actions in derogation of the interim suspension order and cannot possibly excuse his attempt to tamper with a witness. It is the latter conduct above all that demonstrates his current unfitness to practice law.
As counsel for the Board of Overseers pointed out at the sanctions hearing, a conditional suspension allowing Carey to continue practicing subject to conditions has already been tried and was unsuccessful. Carey was already under a two year suspended suspension when he committed the violations found in the September 12 order.
The evidence in this case and Carey’s history of prior violations demonstrate that, at least until he can demonstrate that he has successfully addressed his personality disorder and fully understands and will comply with his ethical obligations, Carey should not be permitted to engage in the practice of law.
There is no guarantee that even if Carey makes diligent efforts to address his personality disorder, he will be successful in doing so. The recommended treatment for a personality disorder is individual or group psychotherapy, but personality is ingrained and even if Carey undergoes a lengthy course of psychotherapy, he will not necessarily have overcome his propensity to engage in behavior that negatively affects his ability to practice law. For instance, if he retains the belief that judicial proceedings are unfair because judicial officers and opposing litigants are engaged in conspiracies against him, this could be seen as justifying rule-breaking on his part.
For all the reasons stated above, disbarment would be appropriate in this case. Moreover, if there were any additional bar violations beyond those found in the September 12, 2018 order or if there were to be any future bar violations, the court would be strongly inclined to conclude that disbarment is required.
However, the court will impose a three year suspension, effective as of the date of this order, for two reasons. First, although the court has not found any bar discipline cases that are directly comparable, the range of disciplinary sanctions that have been imposed by the Supreme Judicial Court in past cases suggests that the sanction of disbarment is reserved for exceptionally egregious cases. Second, Carey has for the first time acknowledged that he has a problem and should be given an opportunity to address it.
The length of the suspension follows from the seriousness of the violations, the multiple violations, the prior disciplinary sanctions, and the amount of time that will be necessary for Carey to address and overcome his personality disorder if he is able to do so. The three-year suspension imposed shall be concurrent with the imposition of the two year suspension previously set forth in the November 21, 2016 order in BAR-16-15.
During his suspension Carey shall comply with the following conditions:
- He shall obtain and diligently follow all appropriate treatment recommended for the personality disorder diagnosed by Dr. Behrem, including but not limited to individual or group psychotherapy.
- He shall authorize the release of his treatment records, including all counselling records, to Bar Counsel who may, if appropriate, submit any pertinent records to the court under seal.
- He shall not practice law.
- If he chooses to work in any occupation associated with the practice of law, such as in a paralegal position, (a) he shall have no direct contact with any opposing party or any potentially opposing party or with counsel representing an opposing party or a potentially opposing party in litigation or potential litigation; (b) he shall not work as a paralegal for his father;8 (c) he shall not work as a paralegal for any attorney with whom he has a social relationship except with the approval of Bar Counsel; and (d) any attorney or firm for which he works as a paralegal shall be advised of Carey's disciplinary history and this suspension order, shall agree to monitor Carey's compliance with this order, and shall report to Bar Counsel any violations of this order and any other conduct that would raise any question as to Carey's fitness to practice law;
- He shall not violate any of the provisions of the Maine Rules of Professional Conduct or of this order.
- He shall not engage in any criminal or unlawful conduct.
- To address issues with distraction and lack of attention to detail, he shall consult a licensed psychiatrist and comply with any recommended medications.
- He shall comply with the registration and CLE requirements as set forth in M. Bar R. 29(e)(7) and (8).
- He shall report to Bar Counsel any matters (including the court and docket number) in which he is the subject of any civil protection orders, any criminal complaints or criminal charges, or any civil cases in which he is named as a defendant.
- He shall report to Bar Counsel any civil proceedings (including court and docket number) which he initiates, either represented by counsel or representing himself.
Any petition for reinstatement shall be based on a showing that Carey has not only sought appropriate treatment for his personality disorder but has also been successful in treating that disorder. Any petition for reinstatement shall also be based on a showing that he has met the other requirements for reinstatement including (1) that he recognizes the wrongfulness and seriousness of the misconduct resulting in his suspension and (2) that he has the requisite honesty and integrity to practice law. See M. Bar R. 29(e)(4) and (6). Given that prior discipline was imposed based on lack of core competence as recently as two years ago, the issue of competence should also be addressed on any petition for reinstatement.
Finally, at the time of any petition for reinstatement, consideration shall be given to whether, if Carey is readmitted, he shall be required as a condition of readmission to be monitored for an initial period by another lawyer or lawyers. If so, given the prior history of Carey generally disregarding the advice of the attorneys monitoring him, consideration should also be given to whether some more strenuous monitoring mechanism should be provided.
Other Issues
The court has considered the issue of whether Carey should be assessed the costs of the proceeding pursuant to M. Bar R. 22, but the court finds that he does not have the necessary funds and that any money that he does have should be devoted to obtaining the psychological treatment ordered above.
At the sanctions hearing the Board also asked for an order that he not commence any lawsuit against witnesses, bar counsel, or others involved in disciplinary proceedings against him. Although Carey retains his right of access to the courts and has the right to represent himself, his prior lawsuits against nearly everyone involved in BAR-16-15 and against both the complainant in RUMDC-PA-2018-20 and the Pine Tree lawyer who represented that complainant constitute a sufficient pattern of vexatious litigation so that, in the context of this disciplinary proceeding, relief is justified as part of this suspension order.
Therefore, during the period of his suspension, Carey shall submit any proposed complaint that he wishes to file on his own behalf to the court in which the action has been or will be filed before effecting service of the complaint. That court shall screen the complaint to determine that it is not frivolous or vexatious before allowing Carey to proceed with service.
Dated: December 20, 2018
Thomas D. Warren
Justice, Superior Court
1All of the citations to ABA Standards in this order are to subsections within III(C) of the ABA Standards for Imposing Lawyer Sanctions originally approved in February 1986 and amended in February 1992.
2It can be argued that in each case Carey also violated his duty to the legal profession because it is the duty of lawyers to uphold the law, to abide by court orders, and to avoid any interference with the administration of justice. However, the ABA Standards limit duties owed to the legal profession to those arising from bar rules applicable to lawyer advertising, client solicitation, unreasonable fees, unauthorized practice, and the like. See ABA Standard 7.0.
3Courts in other jurisdictions have consistently ruled that bar discipline for criminal conduct does not depend on whether the lawyer has been convicted and does not require the criminal standard of proof. See cases collected in the ABA’s Annotated Standards for Imposing Lawyer Sanctions (2015) at 220-21, 224-25.
4Although the tampering was not successful, section 454(1)(A) includes attempts to induce a witness to inform falsely and withhold testimony. In addition, section 454(1)(B) applies to the offer of a pecuniary benefit to withhold testimony — whether or not the offer is accepted.
5The mitigating factor for mental disability, ABA Standard 9.32(g), does not apply because even if Carey’s personality disorder were found to qualify as a mental disability, Standard 9.32(g) requires a "meaningful and sustained period of rehabilitation" that would make recurrence of misconduct unlikely. There has not been a meaningful and sustained period of rehabilitation in this case.
6Dr. Behrem’s 2017 report concluded that Carey meets the diagnostic criteria for "personality disorder not otherwise specified." See Board of Bar Overseers Ex. 27 at 15.
7During the monitoring period resulting from the November 21, 2016 order, Carey had a respectful relationship with the attorneys who monitored him and he listened to what they had to say but did not follow their advice.
8His father is winding down his practice, and because of the parental relationship, his father necessarily has a conflict in monitoring his son’s conduct. See, e.g., September 12, 2018 order ¶¶129-32.
Board of Overseers of the Bar v. In Re Denise J. Dion Goodwin
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Docket No.: BAR-18-18
Issued by: Maine Supreme Judicial Court
Date: January 4, 2019
Respondent: Denise J. Dion Goodwin
Bar Number: 008952
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Denise J. Dion Goodwin has petitioned for reinstatement to the Maine bar. Pursuant to M. Bar R. 29(f)(l), Acting Bar Counsel has stipulated to Ms. Dion Goodwin's reinstatement, subject to the Court's approval.
The Court has reviewed Ms. Dion Goodwin's Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Denise J. Dion Goodwin, Bar #008952, is hereby reinstated to the Maine bar with all the rights and responsibilities thereto.
Dated: January 4, 2019
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Eugene McLaughlin, Jr.
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Docket No.: BAR-18-5
Issued by: Maine Supreme Judicial Court
Date: January 3, 2019
Respondent: Eugene McLaughlin, Jr., Esq.
Bar Number: 003748
Order: Findings and Conclusions
Disposition/Conduct: Competence, Conflict of Interest, Candor to Tribunals, Statements in Disciplinary Matters, Misconduct
A hearing was held on September 20, 2018, at the Penobscot Judicial Center in Bangor on a complaint filed by the Board of Overseers of the Bar (the Board) against Attorney Eugene McLaughlin Jr. The Board was represented by Alan P. Kelly, Esq., and McLaughlin was represented by Leonard I. Sharon, Esq. The Court heard the sworn testimony of Jessica Parady Perry; Steven Parady; Corporal Lucas Hafford; James G. Mitchell Jr., Esq.; Kari Wells-Puckett, Esq.; Jefferson Ashby, Esq.; Francis Bemis, Esq.; and Eugene McLaughlin Jr., Esq. The Court also received (without objection) and considered Exhibits 1-13.1
In February of 2016, Jessica Thompson Parady commenced divorce and protection from abuse proceedings against her husband Steven Parady. Her complaint for protection from abuse dated February 23, 2016, alleged, inter alia, that a treadmill (valued at $500) was her personal property. The District Court (Presque Isle) issued a temporary order for protection from abuse on February 23, 2016, that prohibited Steven from (1) entering the premises at 12 Third Street in Presque Isle; and (2) taking, converting, or damaging property in which Jessica may have a legal interest.
In the same action, the court issued a protection from abuse order, entered with the agreement of the parties, on March 11, 2016 providing that: (1) Jessica was awarded possession of the premises at 12 Third Street in Presque Isle; (2) Steven was "excluded forthwith and prohibited from entering" those premises; and (3) Steven was permitted to go to 12 Third Street in Presque Isle beginning on March 25, 2016, at 5:00 p.m., through March 27 at 5:00 p.m. to pick up his personal property.
Steven went to the house on the designated dates and times to recover his personal property, but did not remove everything he wanted due to time constraints. He entered the locked house by using his driver's license to "card" the lock on the door. He was in possession of a list that Jessica had prepared itemizing property that she attributed to him and property (including the treadmill) that she claimed as hers.
During the time shortly prior to March 30, Jessica had undertaken to sell certain items of property, including a Nordic Track treadmill that she had purchased with her Nordic Track credit card. Steven became aware of the sales and was concerned and wanted to stop them. He contacted McLaughlin, whom he had retained to represent him in the divorce, and asked him what could be done to prevent further sales. McLaughlin told him that an injunction could be obtained, and Steven asked him start that process.
Steven awaited McLaughlin’s arrival at his law office on the morning of March 30. He was very agitated and asked McLaughlin about obtaining an injunction and how he could retrieve personal property from the house. McLaughlin told Steven that he could return to the house even though the dates and times for the recovery of his personal property had passed. Steven expressed concern about reentering the property, but McLaughlin assured him it would be alright.
During the course of the conversation, the treadmill was discussed and McLaughlin indicated an interest in acquiring it for his paralegal. Steven expressed a willingness to participate in such a transaction.
Steven returned to the residence at 12 Third Street on March 30 and again entered the locked premises by carding the lock. He retrieved items of personal property including his daughter's books and other things. Later in the day, Steven returned to McLaughlin’s office where he and McLaughlin agreed that they would retrieve the treadmill,2 Steven would sell it to McLaughlin for $200, and McLaughlin would then give the treadmill to his paralegal. Steven drove back to the residence, followed by McLaughlin, who was accompanied by his paralegal.
Once again Steven gained entry to the residence by carding the lock, and he and McLaughlin entered the residence and checked the treadmill to make sure that it worked properly. Upon satisfying themselves that it was operational, they removed it from the residence and loaded it into McLaughlin’s vehicle. They then returned to McLaughlin’s office where McLaughlin gave Steven a written receipt indicating a credit of $200 toward his legal bill in return for the treadmill.
When Jessica returned to the house on March 30, she discovered the treadmill was missing and found Steven’s license nearby. She contacted the police, who in turn spoke with Steven. He related the events noted above, including the fact that McLaughlin had told him it was alright to enter the house and take the treadmill.
Corporal Lucas Hafford of the Presque Isle Police Department investigated the taking of the treadmill. McLaughlin contacted him to discuss the matter and directed him not to speak further with Steven. McLaughlin confirmed that he and Steven had entered the house and taken the treadmill, but said that the protective order didn’t matter. Corporal Hafford contacted Assistant District Attorney James Mitchell to discuss the matter.
ADA Mitchell had already spoken with McLaughlin, who confirmed that he did advise Steven that he could enter the premises after the dates specified in the protective order to retrieve property, and that he had actually accompanied him on the second entry into the house. McLaughlin told Mitchell that his objective was to acquire the treadmill. Mitchell advised McLaughlin that he had no authority to violate the terms of the court order, and that he had no grounds to advise Steven that he could violate the court order.
Assistant District Attorney Kari Wells-Puckett spoke with Corporal Hafford regarding the unauthorized entry into the residence and the removal of the treadmill. Because of the professional interactions between the District Attorney’s Office and McLaughlin, ADA Wells-Puckett referred the matter to the Penobscot County District Attorney’s Office for review and possible prosecution. Following the referral, she had informal conversations with McLaughlin wherein he acknowledged that he had given Steven bad advice (i.e., he told Steven he could enter the house) and for that reason, in his opinion, Steven should not be prosecuted.
A criminal complaint was issued charging Steven with burglary (Class B); theft by unauthorized taking (Class E); violation of an order for protection from abuse (Class D); and criminal trespass (Class E). He ultimately entered a plea of guilty to the criminal trespass charge and was sentenced to pay a fine and to pay Jessica $200 in restitution.
McLaughlin represented Steven in the divorce proceedings from mid-March until the criminal charges were filed on May 13, 2016.
McLaughlin’s testimony at the September 20, 2018, hearing may be summarized as follows:
He knew that taking and disposing of the treadmill was a violation of the court’s order, and a competent attorney would not have advised a client to disobey the protective order or to otherwise commit a crime. He maintained that he did not advise Steven that he could return to the house, and stated that there was no way he ever would have advised him to do so. On the contrary, he said that he advised Steven that taking and selling the treadmill would subject him to criminal liability-if he went to the house and took it, he would be arrested. Notwithstanding that advice, McLaughlin testified that Steven said, "Let’s do it. Let’s do it."3
McLaughlin acknowledged that he accompanied Steven to the house and assisted in taking the treadmill knowing that neither of them had the right to enter or remove anything. He gave Steven compensation for the treadmill in the form of a credit in the amount of $200 toward his legal bill, and subsequently gave the treadmill to his paralegal as a gift. By paying for the treadmill he knew that he was participating in violating the terms of the order, but he asserted that he was under a lot of pressure. He admitted that he made a mistake and a stupid decision. He argued that the violation was de minimus.
Although most of the evidence is undisputed, the question of whether McLaughlin advised Steven that he could enter the house and remove the treadmill is the subject of differing testimony. After weighing the credibility of the witnesses, and considering the fact that McLaughlin expressly and impliedly conceded to Hafford, Mitchell, and Wells-Puckett that he did advise Steven that he could enter the house and remove the treadmill in violation of the court orders, the Court finds McLaughlin’s testimony on this point-specifically his denials that he did not so advise Puckett-to be not credible. The court finds the testimony of Hafford, Mitchell, and Wells-Puckett to be credible. Accordingly, the Court finds that McLaughlin did advise Steven that he could enter the house and remove the treadmill.4
A. Rule 1.1: Competence
Rule 1.1 of the Maine Rules of Professional Conduct provides:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
McLaughlin’s patently erroneous advice to his client regarding the entry into the house and removal of the treadmill in violation of a court order, along with his active participation in the event, clearly constitutes a failure to provide competent representation as required by Rule 1.1.
B. Rule 1.8: Conflict of Interest
Rule 1.8 of the Maine Rules of Professional Conduct provides, in part:
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
. . . .
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client ....
McLaughlin’s active participation in taking the treadmill constituted a brief, but express, joint venture to acquire the item of property. Steven had no immediate means of transporting the treadmill or converting it to cash on March 30. McLaughlin’s offer and acceptance of the terms of sale concerning the treadmill, and his actions in providing assistance and his vehicle to transport it, constituted a business transaction which was clearly adverse to Steven’s interest-it placed him in jeopardy of criminal and civil sanctions. McLaughlin failed to satisfy any of the requirements established in Rule 1.8(a)(l)-(3) to excuse such a business transaction with a client. Accordingly, his behavior violated Rule 1.8(a) of the Maine Rules of Professional Conduct.
Additionally, because ownership of the treadmill was a disputed issue in the divorce, it was part of the "subject matter" of that litigation and McLaughlin was prohibited from acquiring an interest in it. His actions in doing so violated Rule 1.8(i).
C. Rule 3.4: Fairness to Opposing Party
Rule 3.4 of the Maine Rules of Professional Conduct provides in relevant part:
A lawyer shall not:
. . . .
(c) knowingly disobey an obligation under the rules of a tribunal ....
Although McLaughlin’s conduct in advising his client that he could disobey orders of the court, and actively assisting in that disobedience, appears on its face to be a clear violation of the plain language of Rule 3.4, the Court is not convinced that the conduct necessarily falls within the larger objectives and spirit of this rule. Although the treadmill was lost to Jessica as a result of McLaughlin’s and Steven’s actions, any unfairness to her was mitigated by the restitution order that has been paid. Accordingly, the Court declines to find that McLaughlin’s conduct constitutes a violation of Rule 3.4.
D. Rule 8.4: Misconduct
Rule 8.4 of the Maine Rules of Professional Conduct provides, in part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal or unlawful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice.
. . . .
McLaughlin’s entry into the 12 Third Street premises on March 30 cannot be considered authorized under any circumstances. He had no permission or authority to enter the house. He knew that Steven’s limited license to enter had expired days earlier and that Steven was specifically excluded from further entry by an order of the court; therefore, Steven could not authorize anyone else to enter as his proxy. McLaughlin’s entry into the house constituted, at a minimum, a trespass. In addition, McLaughlin’s active assistance in Steven’s violations of the law are separately sufficient to implicate him as an accomplice. As such, McLaughlin’s behavior violates the prohibitions of Rule 8.4(b). Further, as noted above, his actions constituted numerous violations of the Maine Rules of Professional Conduct, thereby also violating Rule 8.4(a).
Beyond these serious violations, McLaughlin’s machinations in acquiring property that was clearly the subject matter of disputed claims in the litigation between Steven and Jessica constituted dishonesty, and thus violates Rule 8.4(c). Finally, McLaughlin’s misappropriation of property that was the subject of disputed claims during the litigation of those claims is, by any definition, conduct prejudicial to the administration of justice, and violative of Rule 8.4(d).
E. Rules 8.1: Statements in Disciplinary Matters; and 3.3: Candor to Tribunals
As noted above, the Court, after weighing the credibility of the witnesses, has determined that McLaughlin’s claims asserting that he correctly advised Steven not to return to the residence or take any property-which appear in his pleadings and are reasserted in his testimony-are not credible. His claims are fatally undermined by the testimony of other witnesses including Corporal Hafford and Assistant District Attorneys Mitchell and Wells-Puckett, testimony that the Court found particularly credible and compelling. None of the three had any motivation to lie or testify falsely.
The Court finds, as it has in finding all of the violations discussed thus far, that McLaughlin’s violations of Rules 8.1 and 3.3 are clearly and convincingly established by the record.
Eugene McLaughlin Jr., Esq., has violated Maine Rules of Professional Conduct 1.1, 1.8(a), 1.8(i), 3.3, 8.1, 8.4(a), 8.4(b), 8.4(c), and 8.4(d).
Unless the parties advise the Court by January 31, 2019, that they have agreed on a proposal for a sanction for these violations, the matter will be scheduled for Phase 2-a dispositional hearing at the Penobscot Judicial Center at a mutually-agreeable date and time.
Dated: January 3, 2019
Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
1Exhibit 13 is the transcript of the hearing before the Grievance Commission of the Board of Overseers of the Bar that occurred on January 26, 2018.
2Apparently Steven’s car was unable to accommodate the treadmill, but McLaughlin’s vehicle was adequate for the task.
3Meaning go to the house and take the treadmill.
4In making this finding the Court has also considered McLaughlin’s active role in going to the house on March 30, entering it, and assisting in the removal of the treadmill.
Board of Overseers of the Bar v. Richard A. Lord, Esq.
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Docket No.: BAR-19-1
Issued by: Maine Supreme Judicial Court
Date: January 18, 2019
Respondent: Richard A. Lord, Esq.
Bar Number: 000664
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon Petition filed by the Board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court Orders:
As of this date, the Board of Overseers of the Bar is appointed Limited Receiver for final closing of the law practice of Richard A. Lord. Pursuant to this Order, the Board as Limited Receiver shall:
- place an office closure notice in The Times Record;
- secure any professional files, client property, and client data of Richard A. Lord;
- attempt to return client property;
- verify the closure of accounts at Key Bank; and
- inventory and store and/or dispose of client files in accordance with the Maine Rules of Professional Conduct.
As a service to the bar, the Board shall act as Limited Receiver on a pro bono basis. However, the Board may seek reimbursement of costs associated with Receivership duties and, if so, the law office of Richard A. Lord shall be the first choice for source of payment for any disbursements made in this matter if sufficient assets are available.
The Board shall act as Limited Receiver until discharged by the Court in accordance with M. Bar R 32(c).
The Board so appointed shall not disclose any information contained in any file listed in such inventory without the consent of the client to whom such files relate except as may be necessary to carry out an order of the court including any order under M. Bar R 32.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: January 18, 2019
Susan Sparaco
Judge
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Ralph M. Clark
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Docket No.: BAR-18-13
Issued by: Maine Supreme Judicial Court
Date: January 25, 2019
Respondent: Ralph M. Clark
Bar Number: 000839
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar’s Petition for Discharge of Limited Receiver filed on December 7, 2018. For good cause shown and without objection, the Board’s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Receiver of the law practice of Ralph M. Clark. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: January 25, 2019
A. Mark Horton
Maine Superior Court Justice
Board of Overseers of the Bar v. Robert C. Robbins IV
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Docket No.: BAR-18-12
Issued by: Maine Supreme Judicial Court
Date: February 4, 2019
Respondent: Robert C. Robbins IV
Bar Number: 008158
Order: Disabililty Suspension
Disposition/Conduct: Disability Suspension
M. Bar R. 27(a)
By filing dated August 23, 2018, the Board of Overseers of the Bar (the Board) petitioned this Court for an Order suspending former attorney Robert C. Robbins, IV, for disability-related reasons. Included with the Board’s Petition was an Affidavit of Deputy Bar Counsel.
For good cause shown by the Board, Robert C. Robbins appears to be disabled and unable to properly discharge his professional duties. Although he is currently administratively suspended, should he attempt to return to practicing law, Mr. Robbins could pose a substantial threat to clients, the public, and to the administration of justice.
Accordingly, this Court ORDERS that Robert C. Robbins is suspended from the practice of law in Maine until further Order of this Court.
DATED: February 4, 2019
Daniel F. Driscoll
Judge, District Court
Sitting as Single Justice by designation
Board of Overseers of the Bar v. William C. Leonard, Esq.
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Docket No.: BAR-18-14
Issued by: Maine Supreme Judicial Court
Date: February 1, 2019
Respondent: William C. Leonard, Esq.
Bar Number: 002238
Order: Reprimand
Disposition/Conduct: Reciprocal Discipline
M. Bar R. 26(e)
William C. Leonard was admitted to the Maine bar in 1980. In September 2018, the Board received certified confirmation that the Massachusetts Supreme Court issued an August 22, 2018 Public Reprimand against Attorney Leonard. The Court’s imposition of that Reprimand was based upon Attorney Leonard’s violations of Mass. R. Prof. C. 1.15(b)(l) and 1.15(f)(l)(B)-(E).
The Court notes that Attorney Leonard’s professional conduct violations included depositing advanced fee payments to a non-trust money market account and failing to make and maintain all the records required for his IOLTA account. In this jurisdiction, Attorney Leonard’s misconduct would constitute analogous violations of Maine Rules of Professional Conduct l.15(b)(l)(2). Bar Counsel served this Court’s September 24, 2018 Order to Show Cause pursuant to M. Bar R. 15, by mailing it to Attorney Leonard’s address as shown on his most recent Maine bar registration pursuant to M. Bar R. 4. Attorney Leonard has failed to respond to the Court’s Order to Show Cause within 30 days of service of that Order upon him.
WHEREFORE, based upon the above rule violations, the Court finds that reciprocal discipline in Maine is warranted. Accordingly, the Court ORDERS that William C. Leonard, Esq. is hereby publicly REPRIMANDED.
Dated: February 1, 2019
E. Mary Kelly
Judge, Maine District Court
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Gene R. Libby, Esq.
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Docket No.: GCF# 17-200
Issued by: Grievance Commission
Date: February 7, 2019
Respondent: Gene R. Libby, Esq.
Bar Number: 000427
Order: Dismissal
Disposition/Conduct: None
M. Bar R. 13(e)(9)
On December 17, 2018, with due notice, Panel E of the Grievance Commission (Panel) conducted a public disciplinary hearing in Courtroom 9 of the Cumberland County Courthouse pursuant to Maine Bar Rule 13(e)(8), concerning alleged misconduct by the Respondent, Gene R. Libby, Esq. This disciplinary proceeding had been commenced by the filing of a Formal Disciplinary Charges Petition by the Maine Board of Overseers of the Bar (Board) on August 20, 2018.
At the hearing, the Respondent was represented by James M. Bowie, Esq., and the Board was represented by Assistant Bar Counsel Alan P. Kelley, Esq. The Panel admitted without objection the Board’s previously submitted Exhibits 1 to 23, the Board’s newly introduced Exhibit 24, and the Respondent’s previously submitted Exhibits 1 to 15.1 The Panel heard the sworn testimony of Jeffrey Bennett, Esq., Gene R. Libby, Esq., and Kristin A. Gustafson, Esq.
Due to time constraints at the hearing, the Panel Chair directed the parties to submit closing arguments in writing. Each party filed closing arguments on January 2, 2019, at which time the hearing officially closed.2
The Panel then conferred telephonically to evaluate the documentary and testimonial evidence admitted.
Respondent Gene R. Libby, Esq. of Kennebunk, Maine has been at all relevant times an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules, including the Maine Rules of Professional Conduct.
On May 24, 2016, Attorney Libby filed in Portland District Court a Divorce Complaint for his client Ann-Charlotte Deutsch, a real estate broker, against her husband Dr. Robert Deutsch, a chiropractor. Included with his filing was a Family Matter Summons and Preliminary Injunction. The injunction applied to Ms. Deutsch from the commencement of the action and to her husband when the divorce paperwork was served on him. Included in the filing was a Motion Pending, seeking interim spousal support and payment of Attorney Libby’s attorney’s fees, which was never acted upon by the court. Initially, Attorney Robert Mittel represented Dr. Deutsch in the divorce action. At a later point, Attorney Jeffrey Bennett and Attorney Joan Egdall with the Legal-Ease law firm replaced Attorney Mittel.
On March 23, 2017, counsel for the parties had a pretrial status conference with the court, which declined to grant Ms. Deutsch’s request for attorney fees at that point in time. Without permission from the court or opposing counsel, Attorney Libby advised Ms. Deutsch to transfer $70,605 from a joint savings account at Bath Savings Institution to her personal checking account at the same bank. On April 3, 2017, at a deposition of Ms. Deutsch, Attorney Bennett learned that she had withdrawn and transferred the money out of the joint account. Attorney Bennett then filed a Motion for Contempt dated April 17, 2017, arguing that this transfer of money violated the Preliminary Injunction. The court never ruled on this Motion. On April 25, 2017, Ms. Deutsch paid Attorney Libby $9,000 for legal fees from the transferred money.
While the divorce proceedings were still underway, on May 5, 2017, Attorney Bennett and Attorney Joan Egdall filed a bar complaint against Attorney Libby regarding the transfer of funds. The Board delayed opening a bar investigation of Attorney Libby until after the divorce concluded. The parties resolved the divorce by agreement and the checking account at Bath Savings Institution was awarded to Ms. Deutsch as part of the settlement.
In a Formal Disciplinary Charges Petition dated August 20, 2018, the Board alleged that Attorney Libby violated the following Rules of the Maine Rules of Professional Conduct: 1.7 Conflict-of-Interest: Current Clients, 3.3 Candor Towards the Tribunal, 3.4 Fairness to Opposing Party and Counsel, and 8.4 Misconduct.
The heart of the Board’s complaint is that Attorney Libby counseled his client to violate the Preliminary Injunction and thus the law by having her withdraw funds from a joint bank account without permission from the court or opposing counsel so that she could pay his legal fees.
The relevant portion of the Preliminary Injunction statute is spelled out in Title 19-A M.R.S. § 903 (l)(B), which states:
The preliminary injunction must be directed to each party to the [divorce] action and must contain the following orders:
That each party is enjoined from transferring, encumbering, concealing, selling or otherwise disposing of the property of either or both of the parties, except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court; [emphasis added].
There is no dispute that the Preliminary Injunction applied to both parties in the divorce. Nor is there disagreement that Ms. Deutsch transferred marital funds from a joint account to her own personal account. The Board points out that the Stipulated Report of Findings and Order of Panel E of the Grievance Commission in Board v. Van Dyke, GCF-14-476, found that an attorney failed to properly counsel a divorce client, who transferred funds from the marital estate to herself and a third party without permission, which a court determined was a violation of the Preliminary Injunction. That matter is distinguishable from the present case because Ms. Deutsch did not transfer funds to herself and a third party, potentially putting the funds outside of the control of the divorce court, nor is there evidence that she failed to limit her spending to the necessities of life, nor did she lie in her discovery responses or fail to identify financial accounts. Similarly, the Board cites King v. King, 2013 ME 56, ¶6, ¶9, 66 A.3d 593, which the Panel finds is distinguishable from the present case because the transfer of marital assets was to a third party. In this case, Attorney Libby specifically advised his client, who was financially insecure because her husband controlled most of the finances and had stopped making payments to her, that she could transfer funds so that she could pay her legal fees as called for in a written contract.
Assuming without deciding that the transfer from the joint savings account to the sole personal checking account was a "transfer" for purposes of the Preliminary Injunction, the controlling question is whether this transfer was for the payment of the necessities of life, which is not defined in the statute and the case law. Hence, the Panel had to draw on common sense principles, which dictate that certain types of expenditures qualify as "necessities of life" such as food, shelter, and medical care. Even these categories, however, are not clear-cut because the statute does not indicate how much money one can spend on such a necessity. Depending on the circumstances of the party, a necessity of life may or may not involve eating a meal at a fine dining establishment such as Fore Street Restaurant in Portland’s Old Port, staying at boutique lodging such as the Black Point Inn at Prouts Neck in Scarborough, having elective medical procedure such as LASIK eye surgery as opposed to just buying prescription glasses at the Maine Mall, or visiting a child in Hawaii as Dr. Deutsch actually did during the pendency of the divorce. A necessity of life for Stephen King, the famous author of Carrie and other horror stories who lives in Bangor, might be a Waterman fountain pen hand assembled in France. Arguably, a necessity of life for Joan Benoit Samuelson, the first female gold medalist in the marathon event at the 1984 Summer Los Angeles Olympics who resides in Freeport, might be custom running shoes made by Nike. A person temporarily residing in the Oxford Street Shelter in Portland might need a pay-as-you-go cell phone plan from T-Mobile to survive and find a job.
Perhaps the legislature was wise not to define the term "necessities of life", because it would thwart the equitable nature of divorce proceedings and the ability of the court to balance those equities. The evidence shows that Dr. Deutsch, who had access to unrestricted funds for his legal fees, stopped making deposits to the bank account that Ms. Deutsch used to pay her legal fees and other living expenses. Expert Witness Kristin Gustafson, Esq., who has exclusively been practicing family law since 1992 and was a former member of the legislatively-created Maine Family Law Advisory Commission, opined at the hearing that Ms. Deutsch’s transfer did not violate the preliminary injunction
[b]ecause it was not a transfer that took the asset outside the jurisdiction of the marital estate. It was a transfer from a joint account of the marriage to an individual account of the marriage that would be fully accounted for in the ultimate distribution, much as Mr. Deutsch’s accounts that he was spending money out of if there was any issue about that there — that would have been fully accounted for.
In the Board’s closing argument, it conceded the following: "To the extent that the parties’ attorney’s fees may be considered as ’necessities of life’ in this case, the marital injunction would allow for their ’purchase’".
In the Deutsch divorce case, the court never reached the decision of whether or not Ms. Deutsch’s legal fees were a necessity of life, which places the onus on this Panel to make a determination based on the evidence presented by the parties. The Panel finds that Ms. Deutsch’s legal fees were a necessity of life for her. Ms. Deutsch was a real estate agent and not an attorney experienced with domestic relations law. Given the complexities of family law involving a $2 million dollar plus marital estate, Ms. Deutsch needed an experienced attorney, especially because her husband initially retained Robert Mittel, Esq., a highly respected family law attorney, to represent him. There is an old saying: you do not go to a potential gunfight without a gun.
Melvyn Zarr, a legendary professor of civil procedure at the University of Maine School of Law, taught generations of students the acronym LLDP, i.e., Law is a Lawyer Driven Process, meaning that it is up to the client's attorney to shape the law procedurally into something useful much as a potter takes clay and turns it into a vase. See Melvyn Zarr, Recollections of My Time in the Civil Rights Movement, 61 Me. L. Rev. 366, 369 (2009). In this case, it was Attorney Libby’s ethical duty to diligently solve his client’s very real quandary of having her access to funds throttled. See M.R. Prof. Conduct 1.7 cmt. (1) ("A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.").
Attorney Libby decided not to wait for the court to act upon his Motion Pending because he had a procedural tool, which allowed him to advise his client that she could transfer funds for the payment of the necessities of life. Professor Zarr lectured his students, including many future jurists, that a trial attorney’s job is to functionally define the law, i.e., in the present case, make the law favorably bend towards the client, of course, without stepping over any ethical lines. Expert witness Kristin Gustafson confirmed that waiting for the court to act would was not practical because the "the hearing time is so limited for these magistrates and judges who are doing back to back to back dealing with things a lot more important than people that have plenty of money, that it is very difficult to get any kind of hearing time to get this kind of — a request for attorney’s fees heard." In other words, in the real world, hearing dates set forth in court orders are not carved in Deer Isle-quarried granite, which is understandable given the court system’s limited budgetary resources. Under the circumstances, the facts show that the purpose of Ms. Deutsch’s transfer of funds from a joint account to her own account was to pay for her necessities of life, which did not run afoul of the Preliminary Injunction.
The Board further argued that Attorney Libby did not have the right to receive his fees in accordance with the terms of his fee agreement until the end of the divorce case. The Panel disagrees with this theory and finds it to violate the heart of Anglo-American contract law, i.e., I perform a service for you and in turn you agree to pay me in a timely fashion. Furthermore, while Rule 1.5 of the Maine Rules of Professional Conduct makes it unethical for an attorney to collect an unreasonable fee, it is silent about demanding prompt payment from a client. Practically speaking, Attorney Libby incurred his own costs such as support staff, not to mention more mundane ones such as electricity and internet to provide legal services to Ms. Deutsch. Attorney Libby would violate state and federal labor law by failing to pay his support staff. See, e.g., 26 M.R.S. § 621-A., regarding timely and full payment of wages. The legal industry would break down if the payment of a client’s legal fees was treated as something that could be deferred to an uncertain future date in spite of contractual terms.
In general, people and businesses have the right to be paid for their services or not provide them. Attorney Libby could have filed a motion with the court to withdraw from the case if he was not timely paid. See M.R. Prof. Conduct 1.16(b)(6), which allows an attorney to withdraw if the representation causes an unreasonable financial burden on the attorney. This would have forced Ms. Deutsch to hire new counsel, costing her even more money to bring another attorney up to speed. It is not for this Panel to second-guess Ms. Deutsch’s decision to hire Attorney Libby for her divorce and enter into a service for fee agreement with him. The Panel determined that Attorney Libby has no conflict by requesting that he be timely paid; if that were the case, most members of the bar would have an inherent conflict with their clients by demanding that they promptly pay their bills.
The Board also argued in closing that Attorney Libby improperly charged Ms. Deutsch for work done to defend himself against the bar complaint. See Formal Ethics Opinion #139, Charging Client for Defending Attorney Before Board of Overseers of the Bar issued June 1, 1994, which concluded that the charging of such fees is per se unreasonable. Attorney Libby testified billing his client for this work was an oversight and that he subsequently wrote off these fees. There appears to be a dispute about the timing of the write-off. The Panel did not consider this alleged violation of Rule 1.5 of the Maine Rules of Professional Conduct because the Board failed to put Attorney Libby on notice of any such violation in its Formal Disciplinary Charges Petition dated August 20, 2018. See M. Bar R. 13(e) detailing the process of a Formal Charges Hearing ("If a matter is to be resolved by a formal proceeding, Bar Counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.").
Based upon the evidence presented at hearing and the written closing arguments of the parties, Panel E unanimously concludes that the Board has not proven by a preponderance of the evidence that Attorney Libby has engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct. Accordingly, pursuant to M. Bar R. 13(e)(10)(A), the Formal Disciplinary Charges Petition filed against Attorney Libby is dismissed.
Date: February 7, 2019
Andre J. Hungerford, Esq., Acting Panel Chair
Gretchen L. Jones, Esq., Panel Member
Malcolm T. Dow, Public Member
1The Respondent also submitted a redacted version of its Exhibit 15 for the public record.
2On January 4, 2019, the Respondent filed a "Rebuttal" to the Board’s closing argument, and then the Board submitted a letter asking the Panel to clarify whether it would accept Respondent’s "Rebuttal." By Order dated January 11, 2019, Panel Chair Andre J. Hungerford responded that the Panel would not consider additional commentary or material from either party. The Respondent’s "Rebuttal" was not reviewed by the Panel or factored into its decision.
Board of Overseers of the Bar v. Paul L. Letourneau
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Docket No.: BAR-16-17
Issued by: Maine Supreme Judicial Court
Date: February 12, 2019
Respondent: Paul L. Letourneau
Bar Number: 009544
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is Receiver Joseph Mekonis’s Report of Receiver dated December 31, 2018. For good cause shown and without objection, Attorney Mekonis’s final Report of Receiver is accepted by the Court.
Furthermore, it is ORDERED that Joseph Mekonis is discharged as Receiver of the law practice of Paul L. Letourneau. The Court extends it gratitude to Attorney Mekonis for his efforts in protecting the clients of former attorney, Paul L. Letourneau.
Dated: February 12, 2019
Jeffrey L. Hjelm
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Edwin R. Jonas III
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Docket No.: BAR-13-16
Issued by: Maine Supreme Judicial Court
Date: February 14, 2019
Respondent: Edwin R. Jonas III
Bar Number: 003553
Order: Decision Affirmed
Disposition/Conduct: Reinstatement Petition Denied
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 25
Docket: Cum-18-278
Argued: February 7, 2019
Decided: February 14, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
PER CURIAM
[¶1] Edwin R. Jonas III appeals from a judgment of a single justice of the Maine Supreme Judicial Court (Gorman, J.) denying his petition for reinstatement to the Maine Bar. This is Jonas’s second appeal in this matter. On his first appeal from the denial of his petition, we remanded the matter after clarifying that the admissibility of evidence is to be determined pursuant to the reasonable person standard rather than the Maine Rules of Evidence—the original ruling, before clarification, may have resulted in the exclusion of evidence that would have been admissible pursuant to the more inclusive standard. See In re Edwin R. Jonas III, 2017 ME 115, ¶¶ 1-3, 164 A.3d 120.
[¶2] On remand, we indicated that, in addition to the evidence admitted in the original proceeding, the single justice should "consider only (1) the evidence that was explicitly offered and excluded based on the application of the Rules of Evidence and that was not otherwise admitted, and (2) to the extent allowed by the single justice, any evidence of reinstatement or disciplinary actions, further litigation, or other evidence deemed relevant by the single justice that has occurred after the closing of evidence in the original trial." Id. ¶ 39. Jonas contends that the limited scope of our remand denied him due process of the law and that the evidence he presented supports his reinstatement.
[¶3] During the proceedings on remand, the single justice adhered to the parameters that we articulated in the mandate. Therefore, Jonas’s argument that he should have been entitled to present evidence outside of those parameters constitutes a challenge to our prior decision establishing the nature and scope of the remand proceedings.
[¶4] Contrary to his contention, Jonas has not demonstrated that the process prescribed in our opinion and then implemented by the single justice resulted in an erroneous or unjust outcome. See Greaton v. Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913 ("In appealing a judgment, it is not enough to challenge procedural errors allegedly made by the trial court without also showing actual error in the judgment."). Nor does he seem to recognize the mitigatory opportunity of the additional process, which allowed him to present additional evidence developed since the original trial, that has been available to him since we remanded the matter almost two years ago.
[¶5] The additional evidence he now argues he is entitled to present, even though it is outside the scope of what we stated could be presented on remand, would not change the outcome of the case given his own description of what such evidence would show and the weight that the single justice gave to the great amount of contrary evidence admitted against him.
[¶6] Balancing the factors relevant to a determination of what process is due, including Jonas’s interest in his professional license and the burden that remanding the matter again would place on limited judicial time and resources, we conclude that Jonas was not deprived of due process by the limited scope of the remand. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Fichter v. Bd. of Environmental Protection, 604 A.2d 433, 436-37 (Me. 1992) (stating that due process "requirements are flexible and entail no specified form or procedure"; instead, "[w]hat process is due will vary from case to case . . . to assure the basic fairness of each particular action according to its circumstances" (alterations in original)).
[¶7] The only remaining issue we need address is whether the entire record, including the evidence Jonas and the Board of Overseers of the Bar introduced on remand, compelled the single justice to change her original conclusions, all of which are supported by the record.1 Even with the evidence presented to the single justice on remand, we note the great deal of competent evidence that the single justice relied on in her findings to conclude that Jonas should not be reinstated.
[¶8] A review of the evidence Jonas introduced on remand supports the single justice’s assessment that it added "little . . . to the issue to be decided in this matter—that is, Jonas’s demonstration of the evidence necessary for reinstatement." The evidence, including the evidence introduced by the Board of events since the closing of evidence in the original trial, demonstrates a continuing practice of frivolous and vexatious actions and use of court pleadings and processes for improper purposes.
[¶9] We discern no error in the single justice’s ultimate conclusion on remand that Jonas did not meet his burden "to satisfy, by clear and convincing evidence, each of the criteria for reinstatement set out in M. Bar R. 29(e)."
The entry is:
Judgment affirmed.
James M. Bowie, Esq. (orally), Thompson Bowie & Hatch LLC, Portland, for appellant Edwin R. Jonas III
Aria Eee, Esq. (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
1The single justice’s first judgment analyzed Jonas’s petition pursuant to the reinstatement factors enumerated in the then applicable M. Bar R. 7.3(j). The single justice’s second judgment analyzed Jonas’s petition pursuant to current M. Bar R. 29(e), which replaced the former rule after the first judgment was entered. The findings in the first opinion remain relevant because the rules are—with the exception of a few inapplicable subsections—substantively the same. Compare M. Bar R. 7.3(j)(5)(A)-(F) (Tower 2014) with M. Bar R. 29(e)(1)-(8).
Board of Overseers of the Bar v. In Re David P. Littell
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Docket No.: BAR-19-2
Issued by: Maine Supreme Judicial Court
Date: February 14, 2019
Respondent: David P. Littell
Bar Number: 007530
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
David P. Littell has petitioned for reinstatement to Maine bar. Pursuant to M. Bar R. 29(f)(1), Bar Counsel has stipulated to Mr. Littell’s reinstatement, subject to the Court’s approval.
The Court has reviewed Mr. Littell’s Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, David P. Littell, Bar #007530, is hereby reinstated to the Maine bar with all the rights and responsibilities hereto.
Dated: February 14, 2019
Valerie Stanfill
Judge, Maine District Court
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Anthony J. Sineni III, Esq.
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Docket No.: BAR-16-12
Issued by: Maine Supreme Judicial Court
Date: February 19, 2019
Respondent: Anthony J. Sineni III, Esq.
Bar Number: 007418
Order: Suspended Suspension
Disposition/Conduct: Competence, Scope of Representation, Diligence, Communication, Fees, Confidentiality, Conflicts, Former Clients, Trust accounts,safeguarding client property, Withdrawal, Expediting litigation, Candor, Fairness, Disciplinary matter, Misconduct
Pursuant to Maine Bar Rule 13(g), this disciplinary proceeding was initiated by the Board of Overseers of the Bar (the Board) through its filing of a formal Disciplinary Information. Thereafter, the Board filed an amended pleading which alleged additional misconduct by Attorney Sineni. After multiple attempts to finalize the expanded proceeding, the Court scheduled the matter for a multi-day contested hearing in January 2019.1
Prior to that hearing, the parties notified the Court that they had reached agreement as to stipulated findings and sanction. Appearing at the January 29, 2019, final hearing were Aria Eee, Acting Bar Counsel, Christopher Largay, Esq., counsel for Attorney Sineni, and Attorney Sineni.
Based upon the parties’ stipulations, supplemented by the comments of counsel and Attorney Sineni, the Court adopts the following findings, which have been agreed to by the parties, and issues this Order:
- Attorney Sineni (Sineni) was admitted to the Maine Bar in 1991 and operates a private firm in Portland. He is a solo practitioner, whose practice areas include criminal, family law, personal injury and probate matters.
- By his filing of October 1, 2014, Assistant Attorney General (AAG) Paul Rucha (Rucha) formally complained against Sineni pursuant to his mandatory reporting obligations under MRPC 8.3(a). That complaint outlined five charges then pending against Attorney Sineni. Those charges included Assault, Receiving Stolen Property, and Tampering with a Witness. The latter two charges involved persons whom were then clients of Sineni’s.2
- Following his arrest and subsequent bail on those charges, Sineni was subject to bail conditions that included no contact with two persons, including a client named A.R.
- According to the affidavit sworn by Cumberland County Sheriff’s Detective John Fournier, between August 19 and September 3, 2014, Sineni engaged in conduct involving his improper receipt and or retention of firearms which he knew or believed had been taken from his client, M.R. M.R. was also a neighbor of Sineni.
- On or about September 3, 2014, the Sheriff’s Department responded to a request to remove those firearms from the Sineni home.
- Once at the home, Detective Fournier retrieved two firearms. After that retrieval, the Detective realized that the items were the same guns which M.R. had previously reported stolen.
- In response to Detective Fournier’s initial questioning about how the guns arrived in the Sineni home, Sineni replied, "A.R. must have brought them there."
- That response was improper because Sineni had been representing A.R. in a social security disability matter and had previously represented A.R. in a child custody matter.
- While serving as A.R.’s counsel, Sineni also provided housing for A.R. within the Sineni home, employing him for odd jobs, child care and other work as directed by Sineni.
- Following the statement by A.R., Detective Fournier learned that Sineni had (then) been in contact with A.R., urging him to accept responsibility for the presence of the guns.
- Sineni reported his intention to withdraw from the disability case if A.R. did not accept responsibility for taking or receiving the stolen guns.
- Sineni’s actions constituted violations of MRPC 1.7(a)(2); 1.16 and 8.4(d).
- During the same time period, Sineni advised his other client, M.R., to send a letter to the Sheriff’s Department and the District Attorney "withdrawing the [guns] complaint."
- The next day, September 11, 2014, M.R. emailed Detective Fournier indicating his desire to "drop the case." Sineni’s advice in previously directing that action constituted violations of MRPC 1.7(a)(2); and 8.4(d).
- Through the fall of 2014, the contentious relationship between Sineni and his former domestic partner culminated in Protection from Abuse proceedings, involving the complaints they had each filed against the other. The District Court combined the competing PFA complaints for a contested hearing in December 2014.
- During that PFA hearing (wherein A.R. was called as a witness), Sineni attempted to utilize/introduce A.R.’s medical records from a prior hospitalization. The presiding judge challenged Sineni’s attempt to use the records and he was precluded from doing so.
- By that time, Sineni had already been informed that A.R. was seeking the return of his client file, including the referenced hospital records. Although Sineni reports that he received legal advice authorizing the use of the hospital records, that exception to the confidentiality rule is inapplicable because it was not the former client who had pursued an adverse action against Sineni. For that reason, Sineni had no basis to attempt to utilize those records to his former client’s detriment. By doing so he violated MRPC 1.6(a), 1.9(c)(1) and 8.4(d).
- Following the hearing, the District Court issued an Order for Protection from Abuse (PFA) against Sineni. That Order issued on December 9, 2014.
- Thereafter, on January 5, 2015, in the Unified Criminal Court, Attorney Sineni entered pleas of "guilty" to Assault (Class D) and Disorderly Conduct (Class E). Following a period of deferred disposition, the assault charge was dismissed. That plea was the product of negotiations from the original charges referenced earlier herein.
- Sineni’s conduct, ultimately resolved by a plea to a conviction for Disorderly Conduct, reflects adversely on his honesty, trustworthiness, or fitness as a lawyer.
- Pursuant to the January 5, 2015, plea agreement, the Superior Court also ordered a deferral period of one year on the Disorderly Conduct conviction.
- On that date, Sineni agreed to and executed the "Agreement of Defendant and Order Deferring Disposition," containing the court-ordered conditions of deferment.
- With that January 5, 2015, Agreement and Order, Sineni was subject to a multitude of conditions, including compliance with all pending protection orders, no contact (direct or indirect) with his former domestic partner, random searches and no use or possession of alcohol/drugs.
- At the same time, the criminal court released Sineni pursuant to a Bail Bond Order. That Order likewise included various conditions governing Sineni’s release, including the requirement that he abide by all protection orders.
- Sineni signed the Bail Bond on January 5, 2015, agreeing to the terms and conditions of his release. In doing so, he agreed to the requirement that he abide by all protection orders.
- One of the conditions of the December 9 PFA Order was a specific contact schedule then permitting Sineni visitation with his sons, "A." and "R."
- Three days after executing the Deferred Disposition Agreement, Sineni failed to comply with two of the conditions of the January 5, 2015, Order Deferring Disposition and the related Bail Bond Order.
- Specifically, on January 8, 2015, Sineni appeared at each of his son’s schools. Despite the clear "parental contact" time frames in the District Court’s PFA Order, Sineni failed to comply with that Order and, instead, engaged in contact with his younger son, R.
- Although he had also attempted to see his son A. on January 8, Sineni was unable to have contact with that child, as A. was then home sick.
- Sineni knew that the District Court’s PFA Order specified his parental contact time as Friday-Monday. The day Sineni appeared at school and had contact with his son R. was a Thursday.
- Believing that with an order of shared parental rights and responsibilities he was permitted to have contact with his child at school, Sineni did speak with his younger son.
- As a result of that contact, Sineni was arrested for violation of the protection order previously issued by the District Court and for violation of his conditions of release. That arrest occurred on or about January 9, 2015.
- On January 12, 2015, Sineni was released on bail and subject to a new Bail Bond Order.
- On March 24, 2015, the Superior Court conducted a dispositional conference. At that time the parties agreed, and the court found, that Sineni had committed new criminal conduct, in violation of his Deferred Disposition Agreement and Order. Although Sineni believed that he had not violated the parental contact/rights provision of the PFA Order, he rendered an Alford plea to the new charge because he acknowledged that the State could prevail on its interpretation of that Order.
- Sineni’s conduct also constituted a violation of MRPC 3.4(c) and 8.4(d).
- At that time, Sineni again agreed to enter a guilty plea, specifically, acknowledging the conditions of his release, as enumerated within the January 5, 2015, Bail Order.
- On March 24, 2015, the court accepted Sineni’s plea and ordered a deferred sentence on the Violation of Condition of Release.
- Sineni remained subject to multiple conditions of his Deferred Disposition Agreements and the related Bail Bond Orders.
- In sum and based upon the above stipulations, Sineni agrees that he engaged in violations of the following Maine Rules of Professional Conduct: 1.6; 1.7(a)(1); 1.7(a)(2); 1.9; 1.15(b)(2)(iv); 1.15(f); 1.16; 3.4(c); and 8.4(a)(b)(c)(d).
- On February 20, 2015, Attorney Eric J. Wycoff filed a grievance complaint against Sineni on behalf of his former client, S.P.
- Several years earlier, Sineni had represented S.P. in a medical malpractice suit against two of her former treatment providers, Dr. S. and Dr. K. That medical treatment occurred following S.P.’s recovery from a serious injury.
- During the subsequent investigation of the S.P. complaint matter, new counsel, Kimberly Watson, Esq., entered her appearance on behalf of S.P. S.P.’s complaint detailed Sineni’s alleged excessive contingent fee, his failure to return her funds and client property, and his failure to provide her with a complete accounting of her client trust account following the conclusion of his representation.
- S.P. also complained that Sineni failed to communicate and act with reasonable diligence regarding various other legal matters he agreed to pursue on her behalf.
- Following the filing of her complaint, S.P. received a Facebook "friend request" from Sineni, despite his knowledge that she was represented by counsel.
- Within the complaint matter, it became clear that there was no initial contingent fee agreement governing the terms of Sineni’s representation of S.P.
- Three years later, in September 2007, Sineni provided S.P. with a standard personal injury fee agreement which the parties then executed.
- Sineni did not utilize a medical malpractice fee agreement, and thus failed to accurately delineate the proper percentage within that agreement. Instead, his stated thirty-percent fee (of the net amount collected) was in violation of the governing statutory fee limitations mandated by the Health Security Act. See 24 M.R.S. § 2961. Had Sineni utilized the proper agreement, he could have petitioned the court for an award of higher fees, consistent with the statute.
- S.P.’s malpractice action resulted in one settlement and one jury verdict. An initial settlement of $80,000 (related to Dr. S.) occurred in 2007. After the attorney fees and reported costs, S.P. was due to receive approximately $16,500.
- Following a favorable verdict against Dr. K. in March 2011, the parties settled the second matter for $164,000. After attorney fees and costs, S.P. was due to receive approximately $88,350.
- After receiving each award of S.P.’s settlement, Sineni retained the funds in his client trust account and made periodic disbursements. There was no written document detailing the reasons or method for Sineni’s retention of or the way the funds would be subsequently disbursed.
- S.P.’s functioning (due to her injuries and medical history) was then somewhat compromised. As such, Sineni should have exercised greater care to explain and document the various actions he took on her behalf, including his waiver of pre-judgement interest, the responsibility for litigation costs, retention and disbursement of her settlement funds, and the money he disbursed at her request. His failure to do so constituted violations of MRPC 1.2, 1.4 and 8.4(d).
- According to the information provided by Sineni, the total amount he retained for his fees in the two cases was approximately $75,867 and the amount paid out in costs on behalf of S.P. was between $14,000-$15,000.
- Within his responses to the Board and its Fee Arbitration Commission, Sineni did not account for or explain his disposition of the remaining S.P. funds. Through counsel, Sineni later retained a forensic accountant to recreate the trust account activity concerning S.P.’s settlement funds.
- Through his counsel’s involvement, Attorney Sineni returned S.P.’s client file on or about April 22, 2015. That return occurred several months after S.P.’s initial requests for her client property. Sineni’s delayed surrender of his client’s file constituted a violation of MRPC 1.15(e) and 1.16(d).
- Within his grievance response, Sineni provided a partial accounting of S.P.’s settlement funds. He was initially unable to provide a complete accounting of those funds, until the forensic accountant completed his work. Sineni’s failure to timely render an account of his client’s funds constituted a violation of MRPC 1.15.
- On October 9, 2015, S.P. filed a Petition for Fee Arbitration related to the circumstances previously detailed in her grievance complaint filing. In that Fee matter, S.P. believed that she was owed approximately $176,000 from the combined $244,000 settlement amounts awarded to her.
- Sineni continued to maintain that he had disbursed all funds due to S.P., though, initially, he was unable to prove a complete disbursement.
- According to her original filing, S.P. received $104,854.52 of the $176,870 amount owed to her by Sineni.
- It appeared from the initial calculations that Attorney Sineni retained an excessive fee from the S.P. representation.
- The Fee Arbitration Commission conducted a hearing (September 2016) wherein both parties had full opportunities to present their evidence.
- Within its January 2017 decision, the Fee Commission found in favor of S.P. and issued an award to her totaling $61,498.07.
- The Commission made specific findings about Sineni’s fees and his accounting/disbursements to S.P. Those findings included Sineni’s failed and/or disorganized evidentiary presentation during the fee hearing.
- The parties subsequently filed competing civil actions concerning the Fee Award and S.P.’s claims against Sineni.
- Following discovery and further negotiations, the parties settled those claims.
- It is the Court’s understanding that the terms of that settlement are confidential, but according to the Board, it is no longer asserting that Sineni improperly retained S.P.’s settlement funds.
- Nonetheless, the parties agree that Sineni did engage in violations of the following MRPC: 1.1; 1.2(a); 1.3; 1.4; 1.15(b)(2)(ii)(iii)(iv); 1.15(f); 4.2(a); and 8.4(a)(c)(d); and the formerly applicable M. Bar R. 3.3(a)(3, 8, 9) and 8.
- On or about November 16, 2016, Key Bank notified Sineni that, effective December 9, 2016, a restraint would be put on his law firm’s accounts, thereby blocking any additional activity.
- The notice also informed Sineni that Key Bank would close those accounts as of December 16, 2016.
- On December 9, 2016, Sineni’s staff wrote a check (#1658) from the IOLTA account in the amount of $100. Because a hold was already in place on the account, Key Bank dishonored the check.
- On December 13, 2016, Key Bank sent the Board an overdraft notification regarding Sineni’s IOLTA account and the above-referenced check.
- On December 16, 2016, Key Bank closed Sineni’s accounts. With that closure, Key Bank issued a check to Sineni for $217,110.56, representing the remaining balance in his IOLTA account.
- Thereafter, Sineni opened four new accounts at TD Bank.
- On December 21, 2016, Sineni opened a personal checking account with an initial deposit of $574.74. He opened a law office checking account with an initial deposit of $2,383. Sineni then opened a personal savings account with an initial deposit of $217,110.56.
- On January 26, 2017, Sineni opened his IOLTA account with an initial deposit of $14,286.
- As it does in every insufficient fund’s overdraft report, the Board required that Sineni provide specific information concerning the December 2016 dishonored check.
- After reviewing the information provided by Sineni and Key Bank, the Board began a full audit of Sineni’s accounts, pursuant to M. Bar R. 6. The Board hired a forensic accountant to assist with that audit.
- A few months later, TD Bank notified the Board of a dishonored check drawn on Sineni’s new IOLTA account due to insufficient funds.
- Sineni later satisfied the overdraft with sufficient funds.
- Once again, the Board requested that Sineni provide specific information concerning the dishonored check.
- The deadline to receive that information was June 5, 2017. Although he failed to initially comply, four months later Sineni provided the bulk of the information sought in the Board’s initial TD Bank investigation.
- On December 11, 2017, the Board requested additional information regarding the TD bank accounts. Sineni’s response deadline was December 31, 2017.
- That deadline expired without Sineni’s required reply.
- After providing an extended response time, in July 2018, the Board eventually received much of the requested supplemental information.
- Based upon its concerns with Sineni’s recordkeeping, the Board again requested accountings regarding three clients (C.A., B.M., and R.J.) for whom previous requests had been made. Sineni did not provide such accountings.
- The records provided by Key Bank and TD Bank reveal that Sineni received approximately $217,000 in wired funds on behalf of one client, R.J. The corresponding bank records show no subsequent disbursement to that client.
- Sineni agrees he received those funds but reports that they are properly secured through agreement of the client, R.J. Given the lack of complaint by the client, R.J., there appears to be no basis to conclude that Sineni has improperly retained the funds.
- Nonetheless, Sineni failed to provide all of the required information designed to permit the Board to complete its trust account verification process as directed by M. Bar R. 6. Sineni acknowledges that he failed to fully comply with the investigation of his bank and trust account practices. As a result, Sineni violated M. Bar R. 6(d) and MRPC 8.1(b).
- The Board confirms, however, that it has received no client complaint about Sineni’s financial/recordkeeping practices since Key Bank’s overdraft report in December 2016.
- With regard to his client Trust Account, Sineni has repeatedly commingled funds and failed to maintain proper accounting/recordkeeping practices in violation of MRPC 1.1, 1.15(a)(b) and 8.4(c)(d). Nonetheless, the parties agree that there have been no client complaints (or evidence) of theft or conversion of funds by Sineni.
- On September 15, 2016, Sineni initiated a lawsuit on behalf of his client, D.B. That matter was filed in Cumberland County Superior Court, and captioned D.B. vs. S.T., LLC.
- The defendant was represented by counsel.
- D.B.’s claim involved injuries he sustained after a 2010 motor vehicle accident with a truck owned by S.T. company.
- Following months of discovery issues/disputes, the Superior Court conducted oral argument on pleadings filed by both parties. Thereafter, on January 15, 2018, the court dismissed D.B.’s lawsuit with prejudice.
- In its order, the court explained its reasoning for the dismissal as, among other things, the "misconduct" of Sineni.
- Specifically, the court found that Sineni had "repeatedly and, almost dutifully, flouted basic discovery obligations."
- The court also found that Sineni presented an improper record to the court in an effort to correct his error in failing to designate experts.
- On February 8, 2018, Sineni filed an appeal of the Superior Court’s order.
- Thereafter, on March 14, 2018, opposing counsel filed a grievance complaint related to the Superior Court’s dismissal order.
- According to the Law Court’s scheduling order, Sineni’s deadline to file the appellant’s brief was on or before May 10, 2018.
- Sineni failed to file a brief or appendix. On May 23, 2018, the Clerk of the Law Court dismissed D.B.’s appeal due to Sineni’s failure to make the required filings.
- On May 30, 2018, Sineni filed a "Motion to Review Dismissal and Request to Reinstate Appeal." Within that motion, Sineni cited various reasons for his neglect of the appeal, including a computer crash and alleged improper actions by a former staff member.
- Appellee’s counsel filed an Objection to the Motion to Review.
- In its June 5, 2018, "Order Denying Motion" (Gorman, J.), the Court rejected Sineni’s explanations for the failed prosecution of D.B.’s appeal.
- Specifically, the Order concluded that Sineni’s "failure to at least take some action—even calling the Clerk’s office to check on the appeal—to ensure that the appeal was proceeding [was] not excusable."
- Based upon the foregoing events, the parties agree that Sineni acted in a manner violative of the following MRPC: 1.3; 3.2; 3.3(a); 3.4(c) and 8.4(a)(c)(d).
- Similarly, a more recent complaint concerns Sineni’s representation of a now deceased client, S.G. The pending complaint alleges that Sineni neglected S.G.’s legal matter.
- While Sineni does not agree with all of the complaint allegations, he does agree that he failed to timely conclude S.G.’s personal injury case. As a result, the Superior Court dismissed S.G.’s case without prejudice.
- Sineni’s actions constituted violations of MRPC 1.3, 3.2, and 8.4(d).
As enumerated within the foregoing paragraphs, Sineni violated multiple rules of professional conduct. Those include MRPC: 1.1 [competence]; 1.2 [scope of representation]; 1.3 [diligence]; 1.4 [communication]; 1.5(a) [fees]; 1.6(a) [confidentiality]; 1.7 [conflicts]; 1.9 [former clients]; 1.15 [trust accounts/safeguarding client property]; 1.16 [withdrawal]; 3.2 [expediting litigation]; 3.3 [candor]; 3.4 [fairness]; 8.1 [disciplinary matter]; and 8.4(a)(b)(c)(d) [general misconduct; illegal conduct; deceit/dishonesty; and conduct prejudicial to the administration of justice].
M. Bar R. 21(c) delineates the grounds for lawyer discipline, the range of sanctions which may be imposed for ethical misconduct, and the factors that the Court must consider prior to imposing any such discipline.
M. Bar R. 21(c) states:
Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer’s misconduct; and
- the existence of any aggravating or mitigating factors.
The ABA Standards for Imposing Lawyer Discipline (ABA Standards) define the purposes of lawyer disciplinary proceedings and of the Standards themselves. The ABA Standards are designed to promote:
- consideration of all factors relevant to imposing the appropriate level of sanction in an individual case;
- consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline;
- consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions.
Standard 1.3, ABA Standards for Imposing Lawyer Sanctions.
In its 2018 decision, a six-member panel of the Maine Law Court was split on the issue of whether M. Bar R. 21(c) wholly incorporates the ABA Standards as a "matter of law."3 Although there was an even divide among the Court over the precise import of the ABA Standards, at a minimum, the Court has concluded that an adjudicator should consult those Standards as guidance in making its determination of appropriate sanctions.
M. Bar R. 21(c) is identical to ABA Standard 3.0. That Standard mandates the court’s consideration of "(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating and mitigating factors." In applying the ABA Standards, intentional acts of misconduct require the imposition of more significant sanctions than misconduct which results from a lawyer’s negligence. Likewise, the amount of injury, or potential injury, to a client, the public, the legal system or the profession is a significant factor.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the duty that Sineni violated as a result of his behavior. A review of the Counts I-IV demonstrate that Sineni’s conduct constituted violations of duties owed to his clients and to the administration of justice. In addition, Sineni violated duties that he owed to the court, to the public, and to his profession.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has also considered Sineni’s mental state in committing the various acts of professional misconduct. Based upon the findings, the Court concludes that Sineni’s actions were sometimes intentional and other times knowing.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the actual and potential injury resulting from Sineni’s misconduct. At times, that misconduct was serious and intentional; other times, Sineni’s misconduct was knowing or reckless. Either way, the misconduct exacted varying degrees of injury to vulnerable clients and the profession.
Pursuant to M. Bar R. 21(c) and ABA Standards 9.2 and 9.3, the Court has considered the applicable aggravating and mitigating factors. While the correlating ABA Standards themselves warrant Sineni’s suspension, the following aggravating factors are also implicated:
(b) selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(h) vulnerability of victim(s);
(i) substantial experience in the practice of law; and
(k) illegal conduct.
There are also mitigating factors for this Court’s consideration. To begin with, Sineni has no prior discipline. In 2009 he received a warning (with dismissal) arising from his failure to appear at a criminal client’s court hearing. Secondly, Sineni has struggled to properly manage his practice and has experienced personal/emotional problems and difficult parenting circumstances. Thirdly, Sineni acknowledges that his actions were harmful to some clients and he requires professional intervention, including MAP contracted services and assistance with law office management.
Therefore, with agreement of the parties, the Court ORDERS:
- Consistent with M. Bar R. 21(c) and an analysis of the severity of Sineni’s misconduct, the relevant aggravating/mitigating factors, and the parties’ sanction proposal, this Court imposes a two-year suspension upon Attorney Sineni. Because Sineni agrees that his misconduct is serious and is willing to engage in remedial measures designed to improve his law office management, the Court suspends all but 9 months of the two-year suspension, with conditions that will be detailed within the final sanction order. Those conditions shall include Sineni’s participation in a trust account program/school, monitoring by another Maine lawyer and execution of a MAP contract. Sineni shall have met with and executed that contract by March 1, 2019.
- Sineni shall serve an actual suspension for the period of 9 months. The start date of that suspension shall be determined after the April 4, 2019, final sanction hearing. Also reserved for the April 4 hearing is the issue of allocation of the Board’s prosecution costs, if the parties remain unable to agree on an amount of costs to be paid by Sineni.
- In the event that the Lawyers’ Fund for Client Protection (LFCP) pays any claims on behalf of Sineni (including after the effective date of this Court’s orders), he shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees. Compliance with this provision shall be a consideration for the Court upon any petition for reinstatement.
- Final hearing on sanctions scheduled for April 4, 2019, at 1:30 pm, at the Capital Judicial Center in Augusta.
Dated: February 19, 2019
Justice Donald G. Alexander
Associate Justice
Supreme Judicial Court
1Due to the Board’s ongoing investigation of Attorney Sineni’s trust accounts, and delays arising from other circumstances, the final hearing did not occur within a typical case processing timeframe.
2Ultimately through a plea agreement and a two-year deferred disposition, these charges were dismissed and Sineni plead guilty to one count of misdemeanor disorderly conduct.
3In Board of Overseers of the Bar v. Prolman, 2018 ME 28, three of the justices concluded that: "Rule 21(c) incorporates the framework and methodology of the ABA sanction standards, thereby requiring that framework to be explicitly applied after a finding of lawyer misconduct." (supra at paragraph 46). Conversely, the three remaining justices concluded that there was: "no need to incorporate the ABA’s lengthy and detailed ‘Standards for Imposing Lawyer Sanctions’ into the Maine Bar Rules as a matter of law. Although an adjudicator should consult that extended discussion when it is relevant to a particular sanction decision, the requirement that an adjudication must track that lengthy and minute detail in order to impose any sanction would create an unnecessarily cumbersome process." (supra at paragraph 51).
Board of Overseers of the Bar v. William L. Dawson, Jr.
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Docket No.: BAR-13-23
Issued by: Maine Supreme Judicial Court
Date: April 3, 2019
Respondent: William L. Dawson, Jr.
Bar Number: 006887
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is co-Receivers John J. Sanford and Elizabeth D. Noble's Report of Receiver and File Inventory filed on March 15, 2018. For good cause shown and without objection, co-Receivers Sanford and Noble's final Report of Receiver is accepted by the Court. The discharge plan stated in paragraph 14 of the Report is approved and shall be implemented.
Furthermore, it is ORDERED that John J Sanford and Elizabeth D. Noble are discharged as co-Receivers of the law practice of William L. Dawson, Jr. It is further ORDERED that Attorney Sanford and Attorney Noble shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: April 3, 2018
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Jamie I. Bullingham
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Docket No.: BAR-18-17
Issued by: Maine Supreme Judicial Court
Date: November 7, 2018
Respondent: Jamie I. Bullingham
Bar Number: 009891
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
Jamie Bullingham, Esq., who has been on inactive status with the Board of Overseers of the Bar since 2012, has filed a formal petition for reinstatement to the bar pursuant to M. Bar R. 4(j) and 29. Because Bullingham has been on inactive status in the Maine Bar for over five years, the Court has the discretion to relieve her of the requirement to petition the Court for reinstatement. See M. Bar. R. 4(j).
It is ORDERED that the Board of Overseers may, in its discretion, administratively reinstate Attorney Bullingham to active status in the Maine bar without further action by the Court. If the Board declines to reinstate Attorney Bullingham without further Court proceedings, she may notify the Executive Clerk of this Court that the Board has declined to administratively reinstate her, and the Court will then consider her petition for reinstatement.
Dated: November 7, 2018
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Eugene J. McLaughlin Jr., Esq.
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Docket No.: BAR-18-5
Issued by: Single Justice
Date: March 26, 2019
Respondent: Eugene J. McLaughlin, Jr., Esq.
Bar Number: 003748
Order: Suspended Suspension/Monitoring
Disposition/Conduct: Rules 1.1 (Competence); 1.8(a) (Conflict of Interest); 1.8(1) (Conflict of interest); 3.3(a) (Candor); Rules 8.1 (Statements In disciplinary matters); 8.4(a), (b), (c), and (d) (Misconduct)
(PHASE 2)
A hearing was held on March 25, 2019, at the Penobscot Judicial Center in Bangor to address the issue of sanctions to be imposed after this Court's finding of multiple violations of the Maine Rules of Professional Conduct. See Findings and Conclusions, dated January 3, 2019 . The Board was represented by Alan P. Kelly, Esq., and McLaughlin was represented by Leonard I. Sharon, Esq. The Court heard arguments of counsel, and McLaughlin addressed the Court on his own behalf.
The Court‘s earlier finding that McLaughlin violated multiple provisions of the Maine Rules of Professional Conduct1 was based upon a single course of action that occurred on March 30, 2016. As noted in this Court‘s earlier findings, McLaughlin gave patently incorrect advice to his client regarding the client‘s right to enter a house and remove property; McLaughlin actively participated in the entry and removal of the property; and McLaughlin failed to provide a frank and truthful account of his behaviors to the Board during its proceedings. The matter is now in order for consideration of appropriate sanctions in light of McLaughlin‘s actions.
Rule 21(c) of the Maine Rules of Professional Conduct provides factors to be considered in fashioning appropriate sanctions for violations of the Rules of Professional Conduct. The Court considers them in turn:
(1) Whether the lawyer has violated a duty owed to the client, to the public, to the legal system, or to the profession.
McLaughlin‘s advice to his client that the client could enter the house and remove personal property was clearly contrary to the court order prohibiting the same. As such, the advice violated a duty owed to the client. Further, because the entry and removal constituted a crime against the person who had the exclusive right to possession of the premises, McLaughlin‘s actions also violated a duty owed to the public. Finally, McLaughlin‘s advice and actions contributed to the violation of a valid and binding court order, which constituted a violation of a duty owed to the legal system.
(2) Whether the lawyer acted intentionally, knowingly, or negligently.
The Court accepts McLaughlin‘s assertions that his actions on March 30, 2016, were not occasioned by a specific desire and intent to violate a court order. However, he acknowledges, and the Court finds, that he knew his actions were wrongful.
(3) The amount of actual or potential injury caused by the lawyer‘s conduct.
Although the parties agree that the actual value of the removed property (the treadmill) was not enormous—it had a value of approximately $200—the distress caused to the possessor of premises by the intrusion, and the client‘s ultimate conviction for criminal trespass, are significantly injurious consequences of McLaughlin‘s actions.
(4) The existence of any aggravating or mitigating factors.
The parties argue, and the Court agrees, that significant aggravating and mitigating factors are present. The Court has considered all of the factors enumerated in the ABA Standards for Imposing Lawyer Sanctions originally approved in February 1986 and amended in February 1992 but addresses below only those which the Court finds salient to the facts of this matter.
Looking to aggravating factors, McLaughlin was motivated in part to procure the treadmill for his paralegal as a gift. SeeABA Standard 9.22(b). His statements to the Board and to the Court during the process included statements that were not candid or honest. See ABA Standard 9.22(f). McLaughlin had decades of experience in the practice of law. See ABA Standard 9.22(i). Lastly, the client‘s entry onto the premises and his removal of the property was illegal; by knowingly facilitating and actively participating in this illegal behavior, McLaughlin likewise committed illegal conduct. See ABA Standard 9.22(k).
This Court finds that two mitigating factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions, are present. First, McLaughlin has no notable record of prior disciplinary action.2 See ABA Standard 9.32(a). Second, McLaughlin is deeply and profoundly remorseful. See ABA Standard 9.32(1). Additionally, the Court finds that McLaughlin‘s practice, which is directed in large degree to individuals with low or limited incomes, has provided a benefit to the resident of Aroostook County, and is considered to be a further mitigating factor.
After considering the factors noted above and the arguments of counsel, the Court determines that a disciplinary suspension of six months is warranted but will suspend three months of that period, to be followed by a period of nine months‘ probation (to commence on the date that McLaughlin is reinstated to the practice of law), during which Francis Bemis, Esq. will serve (if he is willing) as a monitor and provide periodic reports, at least every other month, to the Board of Overseers of the Bar.3 During the probationary period, McLaughlin and the monitor will review his active cases and assess his handling of those matters for compliance with the Maine Rules of Professional Conduct. The period of suspension shall commence April 29, 2019.
Dated: March 26, 2019
Hon. Andrew M. Mead
Associate Justice
Maine Supreme Judicial Court
1The Court found violations of Rules 1.1 (Competence); 1.8(a) (Conflict of Interest); l.8(1) (Conflict of interest); 3.3(a) (Candor); Rules 8.1 (Statements In disciplinary matters); 8.4(a), (b), (c), and (d) (Misconduct).
2McLaughlin apparently received a warning from the Grievance Commission more than twenty years ago.
3If Mr. Bemis is unwilling or unable to serve, the parties will agree upon another member of the bar in good standing to fulfill the monitor function.
Board of Overseers of the Bar v. Anthony J. Sineni III, Esq.
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Docket No.: BAR-16-12
Issued by: Maine Supreme Judicial Court
Date: April 8, 2019
Respondent: Anthony J. Sineni III, Esq.
Bar Number: 007418
Order: Sanction Order
Disposition/Conduct: See February 19, 2019 Suspended Suspension Order
On April 4, 2019, the Court conducted a sanctions hearing related to the above-captioned disciplinary matter pursuant to the agreed Order of February 19, 2019. Following negotiations, the parties informed the Court that they had reached agreement as to all remaining disputed issues except for a minor wording difference in ¶ 12, which the parties left for the Court to resolve.
Present at the hearing were Bar Counsel, Aria Eee, on behalf of the Board of Overseers and Attorney Christopher Largay and his client Attorney Anthony J. Sineni. Also in attendance were Maine Assistant Program (MAP) Director, William Nugent, Esq., and Board Executive Director Jacqueline Rogers.
Based upon the parties’ stipulations, the Court ORDERS:
- As previously referenced in the February 19, 2019, Findings, Conclusions and Order, Sineni shall serve 9 months of the two-year suspension this Court imposed upon him.
- The effective date of Sineni’s suspension is July 1, 2019.
- Consistent with this Order and Maine Bar Rule 31, Sineni shall file all required client, court and counsel notifications. The Court specifically orders compliance with all provisions of Maine Bar Rule 31.
- Additionally, Sineni shall pay $12,000 to the Board as partial reimbursement for its costs in prosecuting this disciplinary action.
- Specifically, within twenty-one (21) days of the date of this Order, Sineni shall remit $1,500.00 to the Board.
- Thereafter until the remaining balance is paid, Sineni shall remit to the Board a $1,000.00 payment, due on the 1st day of each month. The first $1,000.00 installment payment is due on June 1, 2019.
- If Sineni fails to make his initial payments, the Board is permitted to initiate use of the automatic payment authorization executed by Sineni. He shall execute and remit that document on or before April 16, 2019.
- Sineni acknowledges that nonpayment of any amounts owed to the Board shall result in an automatic bar to any reinstatement request.
- Prior to any reinstatement filing, Sineni and Bar Counsel must agree on a Maine attorney to serve as a proposed Monitor for Sineni’s future practice. If the parties cannot agree, the Court shall select a Monitor during the reinstatement proceedings. Prior to that decision, the parties will have an opportunity to submit proposed Monitors for the Court’s consideration.
- A Monitoring Order, governing the conditions of such work, will be issued after any such reinstatement proceedings.
- In addition, Sineni and Bar Counsel must agree on an appropriate trust account program for Sineni’s attendance/participation prior to any readmission to practice. Any disputes concerning that proposed educational requirement shall be resolved by the Court.
- On or before April 16, 2019, Sineni shall initiate and meet with the MAP Director, William Nugent, Esq. Attorney Nugent and Sineni shall mutually agree to the terms of the two-year MAP contract Sineni is ordered to execute. In the event of any disagreement, the differing terms of the contract shall be presented to the Court by 9:00 a.m. on April 16, 2019. The Court shall then decide the appropriate terms. The deadline for execution of the MAP contract is April 16, 2019. MAP shall provide a copy of that contract to the Court and Bar Counsel, both of whom shall maintain it as a confidential document, unless and until further notice of the Court.
- If the Lawyers’ Fund for Client Protection (LFCP) pays any claims on behalf of Sineni (including after the effective date of the Court’s orders), he shall be responsible for reimbursement of those claims in a manner acceptable to the LFCP Trustees. Compliance with this provision shall be a consideration for the Court upon any petition for reinstatement.
Date: April 8, 2019
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Matthew J. Miller
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Docket No.: BAR-18-02
Issued by: Maine Supreme Judicial Court
Date: April 17, 2019
Respondent: Matthew J. Miller
Bar Number: 004097
Order: Disbarment
Disposition/Conduct: Commit a criminal or unlawful act that reflects on the lawyer's honesty, trustworthiness or fitness; Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; Conduct prejudicial to the administration of justice
M. Bar R. 13(g)
This attorney disciplinary matter was initiated with the Court by the filing of a disciplinary Information on February 16, 2018 pursuant to M. Bar R. 23, requesting former Attorney Miller’s immediate interim suspension as the result of his conviction of a federal felony crime which reflected adversely on his fitness as a lawyer.
Upon appropriate notice, the Court conducted a disciplinary proceeding on April 17, 2019. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Kelley, and Mr. Miller appeared pro se telephonically.
In this proceeding, the parties had submitted an agreed-upon proposed Order for the Court’s review and appropriate action. That proposed stipulated Order set forth the relevant underlying facts and admitted misconduct committed by Mr. Miller.
After reviewing the proposed Order, and after hearing from Mr. Miller and from Assistant Bar Counsel Kelley, the Court issues and adopts the following Order:
- Mr. Miller was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules and to the Maine Rules of Professional Conduct.
- He was admitted to the Maine Bar in 2007 and most recently was employed by the federal government at the Social Security Administration.
- This grievance matter was initiated by Mr. Miller’s self-report of his conviction of federal felony offenses.
- At the time of the significant events, Mr. Miller was employed by the Social Security Administration and had no private clients.
- Mr. Miller agrees that he had engaged in misconduct and violated specific portions of the Maine Rules of Professional Conduct for which he should be disciplined by a period of disbarment from practice subject to the Court’s approval under M. Bar R. 25(a).
- Mr. Miller admits that on July 5, 2017 he was convicted by his plea of guilty to a charge of Accessing With Intent to View Child Pornography in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and (b)(2), which is a federal felony offense.
- The Criminal Complaint specifically alleged that Mr. Miller "used a computer and the internet to access digital image files that depicted sexually explicit conduct and were produced using minors engaging in sexually explicit conduct."
- Beginning on an unknown date, Mr. Miller used the internet and "peer-to-peer" file sharing networks to search for and download child pornography to his computer.
- Through his searches, Mr. Miller utilized a computer program which made his IP address visible to others, and made the child pornography which he downloaded available to others over the peer-to-peer network. Miller states that he was unaware that the default settings on the program provided for file "sharing," and thereby allowed others to access the pornography he had downloaded.
- Miller’s computer was equipped with a "shredder" program, and as a result, downloaded files were deleted by the computer after viewing, removing the evidence of his ongoing criminal conduct.
- On or about December 19, 2017 Mr. Miller was sentenced by U.S. District Court Judge George Z. Singal to a prison term of 36 months, followed by 10 years of supervised release and a $5,100.00 total financial assessment.
- Mr. Miller admits that his conduct underlying those criminal convictions constituted violations of M. R. Prof. Conduct 8.4(b), (c), and (d), being criminal conduct that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, involving dishonesty, as well as being conduct that is prejudicial to the administration of justice.
Based on the facts set forth above, the Board has alleged and Mr. Miller now admits that he engaged in violations of the applicable Maine Rules of Professional Conduct, specifically, Rules 8.4(b), (c), and (d).
The Court looks to Maine Bar Rule 2l(c) for direction on the proper factors to consider and analyze in the issuance of an appropriate disciplinary sanction. That rule states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Mr. Miller agrees that his misconduct violated important duties that he owed to the legal system, and to the profession. There is no dispute that he engaged in serious criminal misconduct which reflected adversely on his honesty and fitness as a lawyer. His conduct was intentional, and was done with full knowledge of its illegality and the consequences thereof. Mr. Miller’s intentional viewing of child pornography, and his sharing of that pornography, even if unintended, enabled further proliferation of that pornography and further victimization of the child victims.
Pursuant to the ABA Standards for Imposing Lawyer Sanctions, Section 5.1, "Failure to Maintain Personal Integrity", and Section 5.11, disbarment is "generally appropriate" when a lawyer engages in, "intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice." Mr. Miller’s admitted behavior and the criminal convictions which resulted from it, establish that he engaged in such conduct.
The existence of aggravating and mitigating factors must be reviewed and considered by the court. Section 9.22 of the ABA Standards for Imposing Lawyer Sanctions list numerous factors which may be considered in aggravation and justify an increase in the degree of discipline to be imposed. Among those aggravating factors, several are present in Mr. Miller’s case: Mr. Miller’s motive in committing his offenses was "dishonest" and "selfish"; his actions constituted a pattern of misconduct over time; there were multiple offenses; and the child victims depicted in the pornography were vulnerable to the offenses committed against them. Mr. Miller was an attorney with substantial experience in the practice of law, and his misconduct was illegal, resulting in criminal convictions.
In mitigation, Mr. Miller has no prior disciplinary record, and he has been cooperative and remorseful throughout the processing of this matter. Nonetheless, the aggravating factors clearly outweigh the mitigating factors in this matter, and therefore, disbarment is the appropriate sanction in this matter.
Bearing all of these factors in mind, the Court agrees with, and accepts the parties’ agreed upon proposed sanction, as follows:
Mr. Miller is hereby ordered disbarred from the practice of law in Maine for a period of three years, commencing effective on March 1, 2018, the date of the Court’s Order of Immediate Suspension pursuant to M. Bar R. 23. Mr. Miller has no current clients of any nature or any matters with opposing counsel to so notify of his suspension from practice. Nevertheless, the Court hereby also orders that Mr. Miller shall file an affidavit with Bar Counsel within 30 days of the date of this Order confirming the absence of any current clients. See M. Bar R. 31(h).
Date: April 17, 2019
Thomas E. Humphrey
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Richard A. Lord
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Docket No.: BAR-19-1
Issued by: Maine Supreme Judicial Court
Date: April 12, 2019
Respondent: Richard A. Lord
Bar Number: 000664
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar’s Petition for Discharge of Limited Receiver filed on April 10, 2019. For good cause shown and without objection, the Board’s Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Receiver of the law practice of Richard A. Lord. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: April 12, 2019
Susan Sparaco
Deputy Chief Judge
Maine District Court
Board of Overseers of the Bar v. Mary B. Devine, Esq.
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Docket No.: GCF# 18-136
Issued by: Greivance Commission
Date: May 10, 2019
Respondent: Mary B. Devine, Esq.
Bar Number: 002845
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Conduct prejudicial to the administration of justice
M. Bar R. 13(e)
On May 10, 2019, with due notice, a panel of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e). The Board of Overseers of the Bar (the Board) commenced this proceeding by the October 26, 2018 filing of a Formal Disciplinary Petition.
At the final hearing on that Petition, Attorney Devine appeared and was represented by her counsel, Rosie M. Williams, Esq. The Board was represented by Bar Counsel Aria Eee.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advanced review and consideration. Elaine Fryda was also provided with a copy of the parties’ proposed Stipulated Report prior to the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission Panel makes the following disposition:
Respondent Mary B. Devine, Esq. (Attorney Devine) of New Gloucester, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, Attorney Devine is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (M.R.P.C.). Attorney Devine was admitted to the Maine Bar in 1983 and she is currently a solo practitioner.
According to the parties’ stipulations, the Panel finds the following relevant facts:
Ms. Fryda hired Attorney Devine to handle the informal probate of the Estate of Lee Kingsbury, Fryda’s father. Mr. Kingsbury passed in September 2015. While administration of the Estate initially proceeded in a timely fashion, as the time drew near for closing the probate action, Devine began neglecting the matter. She also became non-responsive to Ms. Fryda’s attempts to obtain status updates. In her initial response to Ms. Fryda’s subsequent bar complaint, Attorney Devine reported that she had experienced health and other personal issues, both of which had negatively impacted her law practice.
The Probate Court’s Docket Record confirms that Attorney Devine undertook virtually no actions in the estate matter for over thirty (30) months. Equally concerning is the fact that although Ms. Fryda executed several probate documents in December 2017, Attorney Devine did not file those documents until June 1, 2018, nearly six months later. That filing occurred two months after Ms. Fryda’s bar complaint.
As a result, the parties agree and the Panel so finds that Attorney Devine engaged in violations of Maine Rules of Professional Conduct 1.3 [diligence]; 1.4(a) [communication]; and 8.4(d) [conduct prejudicial to the administration of justice].
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Devine agrees that she did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Attorney Devine agrees that her misconduct violated duties that she owed to her client and to the profession. There was injury to her client because of Attorney Devine’s delayed action. However, the Commission does not find that Attorney Devine acted with the intent to harm her client’s interests. Instead, her neglect of the estate matter was due, in part, to her personal difficulties.
Regarding aggravating factors, Attorney Devine has substantial experience in the practice of law. She was previously reprimanded for similar misconduct during the same time period of inaction. In mitigation, Attorney Devine has admitted her misconduct, has expressed remorse for that misconduct and has been cooperative in the resolution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Public Reprimand is the appropriate sanction to address the misconduct by Attorney Devine. Therefore, the Commission accepts the agreement of the parties, including Attorney Devine’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a REPRIMAND to Mary B. Devine, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(1) and 21(b)(5).
Therefore, the Panel accepts the agreement of the parties, including Attorney Devine’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a Public Reprimand to Mary B. Devine, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(B) and 21(b)(1).
Date: May 10, 2019
Thomas H. Kelley, Esq., Panel Chair
Andre J. Hungerford, Esq., Panel Member
Eric G. Doyon, Public Member
Board of Overseers of the Bar v. William B. Gillespie
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Docket No.: BAR-18-16
Issued by: Maine Supreme Judicial Court
Date: May 8, 2019
Respondent: William B. Gillespie
Bar Number: 009881
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar’s Petition for Discharge of Co-Receivers filed on May 2, 2019. For good cause shown and without objection, the Board’s Petition for Discharge is GRANTED as follows:
It is ORDERED that Attorney Suzanne Johnson and the Board of Overseers of the Bar are discharged as Co-Receivers of the law practice of William B. Gillespie. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: May 8, 2019
Ann M. Murray
Justice
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Maeghan Maloney, Esq.
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Docket No.: GCF# 18-094
Issued by: Grievance Commission
Date: May 20, 2019
Respondent: Maeghan Maloney, Esq.
Bar Number: 008792
Order: Admonition
Disposition/Conduct: Communication; Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On May 20, 2019, with due notice, a panel of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, District Attorney (DA) Maeghan Maloney. The Board of Overseers of the Bar (the Board) commenced this proceeding by the October 18, 2018 filing of a Formal Disciplinary Petition.
At the hearing on that Petition, DA Maloney appeared and was represented by her counsel, Attorney Christopher Taub. The Board was represented by Bar Counsel, Aria Eee.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advance review and consideration.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission Panel makes the following findings and issues this resulting disposition:
Respondent DA Maeghan Maloney (DA Maloney) of Augusta, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, DA Maloney is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (M.R.P.C.). DA Maloney was admitted to practice in 1998 and has no prior bar discipline.
According to the parties’ stipulations, the Grievance Commission finds the following relevant facts:
On January 1, 2013, Ms. Maloney was sworn in as District Attorney for Kennebec and Somerset Counties. At that time, the District Attorney’s office was prosecuting Eric Bard, who had been indicted on August 9, 2012, with multiple counts of serious criminal conduct. Throughout much of the proceedings, Bard had been represented by two defense counsel. During a June 12, 2014 hearing, one of those attorneys stated that DA Maloney (who was not present at the hearing) had engaged in improper conduct. DA Maloney was not present because an Assistant Attorney General was assigned to the case.
On June 23, 2014, DA Maloney, at the direction of the trial judge, appeared in the judge’s chambers. In addition to the trial judge, a court reporter and clerk were present. The trial judge questioned DA Maloney to determine whether she had engaged in misconduct, and DA Maloney responded to the questions.
The trial judge subsequently conducted jury selection on August 8, 2014. Neither DA Maloney nor one of Bard’s co-counsel were present. At that time, defense counsel who was present remarked that he understood that the judge had engaged in ex parte communications with DA Maloney regarding the case. The judge stated that he had met with DA Maloney to determine whether there had been an ethical breach and that, as a result of the meeting, he was satisfied that there had been no breach. He also stated that the communications he had with DA Maloney were not relevant to the case. Based upon the court’s response, defense counsel did not request a transcript of the June 23, 2014 chambers conference.
On August 27, 2014, Bard entered a conditional guilty plea. On July 24, 2015, the trial judge sentenced Bard, and he entered a judgment of conviction on July 28. Bard appealed to the Law Court. At the oral argument in September 2016, which included questions concerning the June 23, 2014 chambers conference, Bard’s co-counsel learned of that conference and the existence of a related transcript. After argument, defense counsel moved for production of that transcript. The Law Court then stayed the appeal to allow for further proceedings in the Superior Court. After obtaining the transcript, Bard moved for the trial judge’s recusal and to vacate the judgment of conviction. The trial judge recused himself, and a second trial judge denied Bard’s motion to vacate. Bard appealed to the Law Court.
In its decision dated March 15, 2018, the Law Court vacated all adjudicatory action taken after the June 23, 2014 chambers conference. State v. Bard, 2018 ME 38. The Court held that Bard's decision not to request a copy of the chambers conference transcript at the August 8, 2014 jury selection proceeding was based "on the court’s assurances that the ex parte conference &lsqou;had absolutely nothing to do with the motion to dismiss’ and had ‘nothing to do with this case.’" Id. at ¶ 36. The Court specifically stated:
"As is now evident, the ex parte conversation at issue here did include a discussion (between the court and DA Maloney) of several areas of substance pertaining to the pending criminal case." (Bard, 2018 ME 38, ¶ 48).
Pursuant to M. Bar R. 2(b), Bar Counsel initiated a sua sponte docketing of this matter following the Law Court’s March 15, 2018 decision. That docketing primarily occurred because, at the time of the chambers’ discussion between the trial judge and DA Maloney, Bard’s competency and a motion to dismiss were pending, contested issues before that court. Moreover, DA Maloney’s additional comments regarding defense counsel were improper, considering the totality of the circumstances.
With some exceptions, the Maine Rules of Professional Conduct prohibit attorneys from engaging in ex parte communications with a judge concerning a pending proceeding. Given their important role in the legal community, prosecutors are relied upon to ensure the fair administration of justice. DA Maloney failed to comply with this obligation, wrongly believing that the judge’s initiation of the proceedings and the presence of the court reporter and clerk required her to participate in the conference without the presence of defense counsel. As a result, the parties agree and the Commission so finds that DA Maloney engaged in violations of Maine Rules of Professional Conduct 3.5(b) [ex parte communication]; and 8.4(d) [conduct prejudicial to the administration of justice].
The panel understands that the chambers conference DA Maloney attended presented unique circumstances. The trial judge directed DA Maloney to appear and answer his questions. Nevertheless, DA Maloney, in response to the judge’s questions, did engage in communications regarding the pending prosecution of Bard. The panel accepts DA Maloney’s representation that she understood that she was required to answer the trial judge’s questions and that, because the conference was being recorded, a transcript would be made available to defense counsel if the trial judge deemed it appropriate. DA Maloney now recognizes and admits that she should have been more cautious in her communications with the trial judge.
As the Court and Grievance Commission has consistently held, the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public arising after attorney misconduct. Since the evidence supports a finding and DA Maloney agrees that she did in fact violate the Maine Rules of Professional Conduct, the Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
Moreover, the Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of appropriate sanctions. Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, DA Maloney agrees that her misconduct violated duties that she owed to the profession. DA Maloney did engage in an improper discussion with the trial court, but she believed she was required to respond to the court’s directive to appear for that meeting. The Commission also finds that while DA Maloney did communicate information relevant to a determination of Bard’s competency, she subjectively believed that she was required to provide this information to ensure that she was completely and fully responding to the trial judge’s questions. DA Maloney recognizes that she should not have commented on Bard’s defense counsel.
As a result of the ex parte communications, the Law Court vacated Bard’s judgment of conviction, which thus resulted in further judicial proceedings. While this is an injury to the administration of the legal system, the Law Court recognized that this arose from the trial court’s decision to address the allegation of misconduct in an ex parte conference, rather than in the presence of opposing counsel. Further, the injury was compounded when the trial judge incorrectly assured defense counsel that the chambers conference was not relevant to the ongoing prosecution. As the Law Court found, defense counsel’s decision to not request a transcript of the conference was based on this assurance. DA Maloney was not present when the trial judge gave this assurance, and she thus had no opportunity to clarify the trial judge’s recollection regarding the matters discussed. The panel accepts DA Maloney’s representation that she would have intervened had she been present.
Regarding aggravating factors, DA Maloney has substantial experience in the practice of law. In mitigation, DA Maloney has admitted her misconduct, has expressed remorse for that misconduct and has been cooperative in the resolution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that an Admonition is the appropriate sanction to address the misconduct by DA Maloney.
Therefore, the Commission accepts the agreement of the parties, including DA Maloney’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is an Admonition to DA Maeghan Maloney. That Admonition is now hereby issued and imposed upon her pursuant to M. Bar R. 21(b)(1).1
Date: May 20, 2019
Teresa M. Cloutier, Esq., Panel Chair
Thomas H. Kelley, Esq., Panel Member
Marjorie Medd, Public Member
1An admonition is not discipline, although it does constitute a sanction. SeeM. Bar 21(b)(1).
Board of Overseers of the Bar v. Joseph R. Sanchez
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Docket No.: GCF# 17-177
Issued by: Grievance Commission
Date: June 10, 2019
Respondent: Joseph R. Sanchez
Bar Number: 009469
Order: Recommended Suspension
Disposition/Conduct:
Diligence; Communication; Responsibilities regarding nonlawyer assistants
See June 19, 2019 Stipulated Order of Suspension.
M. Bar R. 13(e)
On June 10, 2019, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Joseph R. Sanchez. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on July 30, 2018.
At the hearing, Mr. Sanchez appeared pro se and the Board was represented by Assistant Bar Counsel Alan P. Kelley.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter, with that proposed sanction report being submitted for Panel D's review and consideration. The complainant, Harold D. Sandelin, had been provided with a copy of the parties’ proposed Stipulated Report and was present at that proceeding and provided an opportunity to make comment to the Panel.
Respondent Joseph R. Sanchez of Cumberland, Maine and currently residing in Shanghai, China was admitted to the Maine Bar in 2003 but was administratively suspended by the Board effective October 16, 2015, and currently remains under suspension. Notwithstanding his administrative suspension, Sanchez was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules.
On or about April 27, 2017 Harold D. Sandelin, of Topsham, Maine filed a grievance complaint against Mr. Sanchez. During the course of the Boards investigation, Mr. Sandelin and Mr. Sanchez were each afforded opportunities for response and rebuttal, resulting in a fully developed investigation, pursuant to M. Bar R. 2(b)(2) & 13(b).
On November 7, 2017 a panel of the Grievance Commission reviewed Mr. Sanchez’s actions in this matter, and found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules. Therefore, Bar Counsel was directed to prepare and present a formal charges disciplinary petition before a different panel of the Grievance Commission.
The parties have negotiated a final disposition of this matter. Although Mr. Sanchez has not admitted to the allegations made against him by the Board, he has voluntarily chosen not to contest those allegations, and has agreed to the proposed Stipulated Report of Findings and Order. With that understanding, the Panel makes the following findings:
Mr. Sandelin’s complaint involves serious and significant neglect and failures to communicate by his former attorney, Mr. Sanchez. With an effective date of September 12, 2014 (the date of Mr. Sandelin’s signature) the parties entered into a contingency fee agreement (CFA) concerning Mr. Sandelin’s claim against the United States of America, Department of the Navy, "pertaining to environmental contamination to (Mr. Sandelin’s) property in Topsham, Maine."
Mr. Sandelin alleged that in the 1970’s the Department of the Navy had operated a target shooting range on land adjacent to property owned by Mr. Sandelin’s corporation, resulting in lead contamination to that property from the lead bullets that fell upon his property.
That CFA contained the following language, directed to Mr. Sandelin: "It is further brought to your attention that your claim(s) may be limited or inapplicable for various reasons, including the expiration of applicable statute of limitations, your prior waiver of claims (or a waiver by your predecessors in titles), and/or the potential immunity of the United States to suit."
Mr. Sanchez filed a Form 95 Notice of Claim with the U.S. Government on September 24, 2014, under the Federal Tort Claims Act (FTCA), alleging a "discovery of damage" date of October 2013. That Form 95 was signed by Mr. Sanchez and acknowledged as received by the Navy on October 22, 2014.
As a result, a Claims Attorney was assigned to the matter by the Navy. The government Claims Attorney notified Mr. Sanchez, as the "Claimant’s" (Mr. Sandelin’s) attorney, that the Notice of Claim had been rejected by the Navy on February 23, 2015, and requested Mr. Sanchez’s "perfection of claim." Mr. Sanchez was asked to cure the defects and provide information that had been missing from the Notice of Claim that he filed on Mr. Sandelin’s behalf: 1) There was no attorney authorization; 2) There was no proof that the claimant (Mr. Sandelin) had authority to file on behalf of the corporation that owned the property; and 3) There had been no substantiation of damages.
Mr. Sanchez failed to respond to the U.S. Navy concerning their requests for information. Mr. Sanchez did not respond to the Claims Attorney or anyone else associated with the U.S. Navy, and failed to perfect Mr. Sandelin’s claim. As a result of Mr. Sanchez’s failure to perfect the claim, the statute of limitations as established by the October 2013 discovery dated alleged in Mr. Sandelin’s Notice of Claim, continued to run and subsequently expired to the detriment of Mr. Sandelin.1
Mr. Sanchez failed to notify Mr. Sandelin of the initial rejection of his claim, and either directly or indirectly, through his spouse, Catherine Sanchez, or his legal assistant working at his Great Neck, New York office, caused Mr. Sandelin and his wife, Barbara Sandelin, to incorrectly believe that Mr. Sanchez was still working on the Sandelins claim against the U.S. Navy.
In response to the Sandelins’ inquiry, an email communication from Mr. Sanchez’s assistant on May 16, 2016, informed the Sandelins that the investigation by the U.S. Navy of their claim "can take up to two (2) years to complete." The email further informed the Sandelins that Mr. Sanchez was continuing to pursue their claim against the U.S. Navy, and that "additional (requested) documentation was sent to the (U.S. Navy) claims department in July 2015."
On January 18, 2017 Mr. Sanchez’s assistant responded to the Sandelins’ inquiry for case status information, stating that "there has been no recent paperwork from the U.S. Navy," and that "Mr. Sanchez will be in contact with you soon." However, Mr. Sanchez failed to contact the Sandelins as promised by his assistant.
Notwithstanding the assertion by Mr. Sanchez that Mr. Sandelin’s Notice of Claim was untimely filed, Mr. Sanchez’s failure to perfect Mr. Sandelin’s claim after receiving notification of its rejection, allowed the statute of limitations, as determined by the date of discovery alleged in Mr. Sandelin’s Notice of Claim, to run and expire, thereby defeating and claim by Mr. Sandelin against the U.S. Navy. Mr. Sanchez’s failure to notify Mr. Sandelin in a timely manner that he was no longer pursuing Mr. Sandelin’s lawsuit against the U.S. Navy prevented Mr. Sandelin from seeking new legal counsel to assist him with his claim prior to the expiration of the statute of limitations.
Based upon the above, Mr. Sanchez agrees that the conduct as alleged by the Board and established by our above findings, violated Rules 1.3 [diligence]; 1.4(a) [communication]; and 5.3(b) [responsibilities regarding nonlawyer assistants] of the Maine Rules of Professional Conduct.
The Panel looks to Maine Bar Rule 21(c) for direction on the proper factors to consider and analyze in the issuance of an appropriate disciplinary sanction. That rule states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Mr. Sanchez agrees that the misconduct, as alleged by the Board and established by our findings above, establishes a violation of important duties that he owed to his client, as well as to his profession. Mr. Sanchez’s failure to diligently pursue his client’s claims, and his failure to communicate with his client, were knowing violations of Mr. Sanchez’s ethical duties, resulting in significant injury to his client caused by the expiration of the statute of limitations on his client’s claim.
Pursuant to the ABA Standards for Imposing Lawyer Sanctions, Section 4.4, "Lack of Diligence", and Section 4.42, a suspension of a lawyer’s license to practice is "generally appropriate" when a lawyer "knowingly fails to perform services for a client and causes injury or potential injury to a client." The agreed upon findings establish that Mr. Sanchez’s conduct was knowing, rather than negligent or intentional.
The existence of aggravating and mitigating factors must be reviewed and considered by the Panel. Section 9.22 of the ABA Standards for Imposing Lawyer Sanctions list numerous factors which may be considered in aggravation and justify an increase in the degree of discipline to be imposed. Among those aggravating factors, several are present in Mr. Sanchez’s case: Although Mr. Sanchez has no history or prior disciplinary offenses in Maine, in 2015 he was subject to a one-year disciplinary suspension in Oregon, with a similar reciprocal suspension being imposed by New York in 2017. At the time of his misconduct, Mr. Sanchez was an attorney with substantial experience in the practice of law, and his offenses were not the result of his inexperience. Finally, even though Mr. Sanchez has entered into an agreement regarding the disposition of this matter, he continues to refuse to acknowledge the wrongful nature of his conduct.
In mitigation, Mr. Sanchez has been cooperative throughout the processing of this matter; however, no other mitigating factors appear to be present. As a result, the aggravating factors clearly outweigh the mitigating factors. Consequently, the Panel believes that there should be no reduction of the presumptive sanction for Mr. Sanchez’s misconduct as determined by the ABA Standards for Imposing Lawyer Sanctions.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding, and Mr. Sanchez agrees that the Board’s evidence would establish, that he did in fact violate those referenced portions of the Maine Rules of Professional Conduct, the Panel has analyzed the appropriate factors as established by M. Bar R. 21.
Therefore, the Panel accepts the agreement of the parties, including Mr. Sanchez’s separately executed waiver of the right to file a Petition for Review, and concludes subject to the final approval or rejection of this Order by a Single Justice as provided by M. Bar R. 25(a), that the appropriate disposition of this matter is the imposition of a ONE YEAR SUSPENSION of Joseph R. Sanchez’s license to practice law, said suspension to commence upon approval by a Single Justice.
The Board Clerk is hereby directed to file this Stipulated Report of Findings and Order with the Clerk of the Law Court for submission to a Single Justice pursuant to M. Bar R. 25(a), and for entry of a final order thereon pursuant to M. Bar R. 25(c).
Date: June 10, 2019
Luis D. Carrillo, Esq., Panel Chair
Gretchen L. Jones, Esq., Panel Member
Daniel P. Belyea, Public Member
1Mr. Sanchez asserted that the date of discovery alleged in Mr. Sandelin’s Notice of Claim was not accurate, and that the Statute of Limitations had already expired prior to the filing of the Notice of Claim.
Board of Overseers of the Bar v. Jeffrey P. White
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Docket No.: BAR-18-3
Issued by: Law Court
Date: June 11, 2019
Respondent: Jeffrey P. White
Bar Number: 003804
Order: Decision Affirmed
Disposition/Conduct: Judgment on Appeal
MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 2019 ME 91
Docket: Cum-18-437
Argued: May 15, 2019
Decided: June 11, 2019
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
v.
JEFFREY P. WHITE
PER CURIAM
[¶1] On April 26, 2018, the Board of Overseers of the Bar instituted disciplinary proceedings against attorney Jeffrey P. White by filing a four-count information with the Maine Supreme Judicial Court, alleging that White violated more than a dozen provisions of the Maine Rules of Professional Conduct. See M. Bar R. 13(e)(7)(D), (10)(E), (g). After a testimonial hearing, the single justice (Alexander, J.) found and concluded that White violated multiple ethical rules as to each of the four counts, for which the single justice sanctioned White to a nine-month license suspension and a public reprimand. See M.R. Prof. Conduct 1.3, 1.4(a)(2)-(4), 1.5(i), 1.15(b), 1.16(d), 3.3(a), 3.4(b), 4.1(a), 5.3, 8.4(c). White appeals, advancing arguments regarding procedural due process, challenging the sufficiency of the evidence supporting some of the court's findings, and arguing that the sanction was overly harsh.
[¶2] Contrary to White’s contentions, we discern no due process violations in the court’s consideration of ethical rules that were not pleaded in the Board’s information, see Bd. of Overseers of the Bar v. Lefebvre, 1998 ME 24, ¶ ¶ 14-15, 707 A.2d 69; Bd. of Overseers of the Bar v. Rodway, 461 A.2d 1062, 1064 (Me. 1983), or in the court’s application of the preponderance of the evidence standard of proof, see M. Bar R. 14(b)(4); In re Barach, 540 F.3d 82, 85-86 (1st Cir. 2008) (per curiam).
[¶3] Although White correctly asserts that the court made several factual errors in its decision, including by relying on evidence that was not admitted and making findings that have no record support,1 see Lefebvre, 1998 ME 24, ¶ 11, 707 A.2d 69, we conclude that the factual errors, even when viewed together, do not undermine the reasonableness of the sanction the court imposed as to those findings that are supported by the record. See M.R. Civ. P. 61; M. Bar R. 21; State v. Sanchez, 2014 ME 50, ¶ 13 n.3, 89 A.3d 1084; In re Scott S., 2001 ME 114, ¶ ¶ 24-25, 775 A.2d 1144; MP Assocs. v. Liberty, 2001 ME 22, 29, 771 A.2d 1040.
[¶4] Finally, although the court did not explicitly articulate its consideration of the American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar Ass’n 1992) (ABA Sanction Standards) in fashioning the sanction, because the sanction imposed nevertheless comports with the ABA Sanction Standards, we do not disturb the court’s decision on this basis.2 See M.R. Civ. P. 61; In re Scott S., 2001 ME 114, ¶ ¶ 24-25, 775 A.2d 1144; ABA Sanction Standards 4.42, 6.1, 6.12-6.14, 9.2, 9.21, 9.22(a); see also M. Bar R. 21(c); Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 29, 193 A.3d 808 (Jabar, J., concurring). The sanction of a suspension from practice for less than a year was neither overly harsh nor outside of the court’s broad discretion.
The entry is:
Judgment affirmed.
1There was some discussion about Exhibit 7 during the oral argument in this appeal. On review, we conclude that Exhibit 7 was not admitted at trial, and therefore we have not considered it.
2White’s additional contention—that, as to Count 4, the court should have deferred to the sanctions imposed on him by the United States Bankruptcy Court for the District of Maine—is without merit. See M. Bar R. 10(a); In re Williams, 2010 ME 121, ¶ 5, 8 A.3d 666.
Daniel L. Cummings, Esq., (orally), Norman Hanson DeTroy, Portland, and Jeffrey P. White, pro se, for appellant Jeffrey P. White
Alan P. Kelley, Esq. (orally), Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
Board of Overseers of the Bar v. James M. Whittemore
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Docket No.: BAR-18-9
Issued by: Maine Supreme Judicial Court
Date: June 13, 2019
Respondent: James M. Whittemore
Bar Number: 007767
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
This matter having been heard by the undersigned Justice of the Court, upon the motion of the Receiver herein for an order discharging her as Receiver of the law practice of James Whittemore, the Court makes the following finds of facts and conclusions of law:
- On August 7, 2018, the Court appointed Judy A.S. Metcalf, Attorney at Law, as Receiver of the law practice of James Whittemore for the purpose of obtaining possession of files belonging to James Whittemore’s clients. securing funds held in James Whittemore’s operating and trust accounts, obtaining James Whittemore’s trust account records, and protecting the interests of the clients and/or former clients of James Whittemore.
- Judy A.S. Metcalf, Receiver of the law practice of James Whittemore, acting in good faith, has taken all reasonable steps to fulfill her obligations as Receiver of the law practice of James Whittemore. She has returned or attempted to return all client files to their rightful owners. She has secured funds held in James Whittemore’s operating and trust accounts and has identified or attempted to identify the persons to whom those funds belong.
- Judy A.S. Metcalf has reviewed James Whittemore’s clients’ files.
- Judy A.S. Metcalf has distributed files to a significant number of clients and/or former clients of James Whittemore. Judy A.S. Metcalf has returned. where possible, all active client files to the respective clients.
- A number of James Whittemore’s clients have not picked up their files, despite Judy A.S. Metcalf’s good faith effort to provide them notice that they should do so. The Board of Overseers of the Bar now has in its possession the unclaimed client files other than original estate planning materials which are secured in the vault room of Eaton Peabody, 167 Park Row, Brunswick, Maine.
- The Receiver has disbursed all funds from any trust accounts held by James Whittemore in accordance of the Order dated January 10, 2019.
- Judy A.S. Metcalf has submitted a summary of her time and expenses incurred in serving as Receiver of the law practice of James Whittemore to the Board of Overseers of the Bar by way of monthly invoices.
Based upon the foregoing FINDINGS OF FACT, the Court makes the following conclusions of law:
- Judy A.S. Metcalf. Receiver of the law practice of James Whittemore, has taken all reasonable steps to discharge her obligations as Receiver of the law practice of James Whittemore, to return all client files, and to disburse all funds in James Whittemore’s operating and trust accounts.
- Pursuant to the directions provided to Board of Overseers of the Bar, they should be authorized to maintain in storage at their records management storage facility those client files that have not yet been retrieved by the clients of James Whittemore. All original estate planning documents will remain secured at Eaton Peabody
THEREFORE it is hereby ORDERED as follows:
- Judy A.S. Metcalf is discharged as Receiver of the law practice of James Whittemore.
- The Board of Overseers of the Bar is hereby authorized to maintain in storage at their records management storage facility those client files that have not been retrieved by the clients of James Whittemore.
- Judy A.S. Metcalf is entitled to reimbursement for my expenses incurred by her while serving as Receiver not yet reimbursed.
Dated: June 13, 2019
Nancy Mills
Maine Superior Court
Board of Overseers of the Bar v. Joseph R. Sanchez
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Docket No.: BAR-19-5
Issued by: Maine Supreme Judicial Court
Date: June 19, 2019
Respondent: Joseph R. Sanchez
Bar Number: 009469
Order: Suspension
Disposition/Conduct: See June 10, 2019 Stipulated Report of Findings and Order
Pursuant to Maine Bar Rule 25(c), the Stipulated Report of Findings and Order of Panel D of the Grievance Commission dated June 10, 2019, the Respondent’s Affidavit of Consent docketed June 10, 2019, and the parties’ Waiver of Petition for Review dated June 10, 2019, all of which are hereby adopted and incorporated by reference,
IT IS HEREBY ORDERED:
- The court hereby accepts and adopts the stipulations of the parties calling for a sanction on consent in the form of a one-year license suspension.
- Joseph R. Sanchez’s license to practice law in the State of Maine shall be and is hereby suspended for one year, effective as of the date of this Order.
Dated June 19, 2019
A. M. Horton
Justice by designation
Board of Overseers of the Bar v. Gary M. Prolman, Esq.
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Docket No.: BAR-14-12
Issued by: Maine Supreme Judicial Court
Date: July 8, 2019
Respondent: Gary M. Prolman, Esq.
Bar Number: 007253
Order: Sanction Order
Disposition/Conduct: See September 14, 2017 Findings, Conclusions & Order
This matter is before the Court on remand from the Law Court with a mandate to reconsider and increase the sanction imposed by this Court's original order of September 14, 2017. Board of Overseers of the Bar v. Prolman, 2018 ME 128, 193 A.3d 808. The Law Court’s opinion stated: "Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to apply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney." Id. ¶ 26.
The "apply for readmission" directive, pursuant to Bar Rule 29(a), means that any actual suspension imposed must exceed the six months suspension originally ordered by this Court. Respecting the Law Court’s direction, the Court proceeds to reconsider the sanction.
To avoid an unduly long opinion, the Court at this point adopts and incorporates by reference the findings and conclusions, addressing both the facts and the ethical violations found, stated at pages 5 through 29 of its September 14, 2017, order. The findings and conclusions end, at page 29, with the finding that, "The injury caused by Prolman’s conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life. He also placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked." The Law Court opinion appears to accept and affirm those findings and conclusions. 2018 ME 128, ¶¶ 2-17.
The Court also adopts and incorporates by reference the findings stated on the record at the conclusion of its April 23, 2019, hearing on Prolman’s motion for reconsideration. Referencing the testimony received that day, those findings indicated that if the client had been using and under the influence of drugs during some of her time at Prolman’s residence, as Prolman had testified in 2017 that she had done, that evidence confirmed the Court's original #26 finding that on more than one occasion, while the client was residing at Prolman’s apartment, Prolman engaged in sexual acts with her, perhaps without resistance or outward evidence of lack of consent from the client.
The Law Court’s opinion, when addressing the methodologies for determining the proper sanction, is split into two differing three-Justice opinions. The first of the two three-Justice opinions, Board of Overseers of the Bar v. Prolman, 2018 ME 128, ¶¶ 28-50, 193 A.3d 808, directed this Court to examine Bar Rule 21(c) together with the American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar. Assoc. 1992) to determine a "presumptive sanction." Id. ¶¶ 31-35. With the presumptive sanction set, that opinion directed the Court to then apply aggravating and mitigating factors to set a final sanction and to determine whether any or all of that final sanction should be suspended with the attorney placed on probation with conditions. Id.
The first three-Justice opinion noted: "A review of the disciplinary framework and methodology set forth in the ABA Sanction Standards is helpful in understanding this issue." Id. ¶ 30. It further noted that the ABA Sanction Standards had been developed after an examination of all reported lawyer discipline cases from 1980 to June 1984, were first adopted by the American Bar Association in 1986, and were most recently amended in 1992. Id.
The ABA Sanctions Standards provide no representative numbers to gauge the appropriateness of any particular sanction in 2018 or 2019, and likely did not cover many, if any, sex-with-clients cases in the 1980 - 1984 years surveyed. However, the three Justices indicated that the 1992 ABA Standards "comprise[ ] a comprehensive scheme that sets forth clearly developed standards for the imposition of attorney discipline." Id.
As noted above, the three Justices indicated that Bar Rule 21(c) and the ABA Sanctions Standards should be utilized, in combination, to develop a "presumptive sanction" to which aggravating and mitigating factors would then be applied to determine the final sanction. In effect, the opinion suggested that, to determine and review sanctions for professional misconduct, the Court should adopt a process similar to the process for setting and reviewing criminal sentences imposed by State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993).1
In Hewey, the Law Court had directed that, based on the circumstances of the particular crime as committed, the court should identify a "basic sentence" and then, with the "basic sentence" determined, evaluate aggravating and mitigating factors to set the final sentence, and then determine whether all or any of the final sentence should be suspended and the defendant placed on probation with conditions. Id. at 1154-55.
In its Sanctions Order in Board of Overseers of the Bar v. White, BAR-18-03 (October 3, 2018), this Court attempted to apply the sanctions standards articulated in Prolman to its sanctions’ determination in White. Addressing the need to identify a "presumptive sanction," this Court’s White opinion observed that:
Unfortunately, as with the "basic sentence" in Hewey, there is no available statistical or experiential basis in Maine practice for a judge imposing a sentence or a disciplinary sanction in any particular case to determine what that basic sentence or presumptive sanction ought to be. And, determination of the presumptive sanction, as suggested in the first separate opinion in Prolman, is far more difficult than the process for setting the basic sentence as directed in Hewey. Unlike a criminal sentencing where a sentence is imposed on each count of a charging document, here, the Court must consider an overall sanction for four separate instances of professional misconduct, with the appropriate sanction to be informed by the two prior Grievance Commission determinations regarding violations of the Rules of Professional Conduct.
Determination of the presumptive sanction according to the formula suggested in the first three-Justice opinion is also difficult in the attorney discipline setting because many of the findings of violations of the Rules of Professional Conduct made in the violation determinations present issues identical or nearly identical to factors that would be considered as aggravating or mitigating factors in the later stages of the formula determination. For example, findings of dilatory conduct, violations of duties owed to a client, and the extent to which the lawyer did or did not plan or intend the ethical violation that support findings of specific ethical violations cannot be double counted when, later in the formula, the court is identifying aggravating and mitigating circumstances.
While separation of determination of the presumptive sanction from determination of aggravating and mitigating factors may conceptually sound simple, in practice it is very difficult. The heavily structured Hewey-type analysis suggested in the first separate opinion in Prolman is difficult if not impossible to apply in cases of multiple violations. As the second separate opinion notes, the formula suggested in the first separate opinion is "an unnecessarily cumbersome process." Prolman, 2018 ME 128, ¶ 51.
White at pp. 7-8.
This Court’s sanctions order in White was affirmed in Board of Overseers of the Bar v. White, 2019 ME 91, ¶ 4, --- A.3d ---.2
The second separate opinion in Prolman indicated that, as a matter of discretion, the sanction of a six-month suspension was too low on the facts. "All that needs to be said is this: When an attorney has been sentenced to federal prison for using his legal talents to commit serious crimes, and upon reinstatement to the Bar engages in behavior that is abhorrent to the profession, including taking sexual advantage of a client he knew to have been the victim of sex trafficking, a six-month suspension, requiring no demonstration of rehabilitation in order to return to the practice of law, is plainly and compellingly insufficient." Prolman, 2018 ME 128, ¶ 54, 193 A.3d 808.
To determine how to properly exercise its discretion, or to determine the "presumptive sanction," this Court must first identify relevant precedents that can guide its discretion in setting a proper sanction for a case involving an attorney with a prior disciplinary history who improperly engages in a sexual relationship with a client.
Respecting the second three-Justice opinion’s observation that the original sanction was "compellingly insufficient," id. ¶ 54, it is important to look at other ethics violation sanctions imposed in cases involving sexual relations with a client. In this review it must be noted that at the time the acts at issue occurred in 2017, Maine had no professional ethics rule explicitly barring sexual relations with a client. Last fall, the Court adopted Rule of Professional Conduct 1.8(j) stating that: "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." 2018 Me. Rules 18 (effective October 26, 2018).
With this background, the Court proceeds to review relevant precedents.
A. Nadeau, A Potential Sanctions Cap
On the treatment of a prior disciplinary history, which the Law Court's opinions indicate is significant, one precedent involving a prior disciplinary history, including sexual relations with a client, was and is particularly pertinent. Just three months prior to the Court's decision in this matter, the Supreme Judicial Court published what is perhaps the most significant professional misconduct sanctions opinion in recent memory, In re Nadeau, 2017 ME 121, 168 A.3d 746.
In Nadeau, the Court, acting de nova, found five violations of the Code of Judicial Conduct proved, including three violations that involved vindictive treatment of attorneys formerly associated with Nadeau in his private law practice. The Court noted that one of the violations, an order to destroy a public record, involved violation of the Freedom of Access Law, see 1 M.R.S. § 452 (2018), which could have subjected Nadeau to criminal penalties. Id. ¶¶ 25-29.
In considering the appropriate sanction, the Court also had to consider Nadeau’s prior history of six other disciplinary violations. That history included:
Thus, the Nadeau Court in 2017 had before it, for its consideration of appropriate sanctions, a history of eleven ethical violations, five new violations and six previously-found violations, including sexual relations with a client. With this history, including a potential criminal violation and violations of both judicial and attorney ethics rules, the Court imposed a sanction of a two-year suspension from the practice of law and a $5,000 forfeiture.
The Nadeau sanctions order made no mention of the ABA Sanctions Standards, even though it imposed a suspension from the practice of law. Because of the history of the large number of ethics violations that preceded it, the 2017 Nadeau decision effectively served as a sanctions cap for all but the most serious and repeated violations-at least for those seeking comparable cases to guide exercise of discretion in determining appropriate sanctions for ethics violations being addressed in the latter part of 2017.
B. Comparable Maine Cases
Looking to comparable cases to guide the Court’s exercise of discretion, the Court appreciates the parties’ efforts to assist the Court in identifying comparable cases involving sexual relations with or sexual conduct toward a client arising in jurisdictions with no specific prohibition on sexual relations with a client and where there was no criminal conviction for the sexual conduct. What is surprising is that the parties, applying excellent research skills, identified only twenty-two such cases occurring since 2000, four in Maine and eighteen in other states. Those cases are listed, most recent to oldest, with Maine cases first, in Chart A, attached to this opinion.
The most serious Maine case, Board of Overseers of the Bar v. Mangan, BAR-99-05 (2001), involved the sexual abuse of a client extending over many months or years and including threats of harm to the client if she reported Mangan. Separately, Mangan had been subject to several prior disciplinary proceedings including one that involved sexual harassment of an attorney, and others that involved failure to account for client funds and instances of misuse of client trust fund accounts. For these actions, Mangan was disbarred.
Another Maine case with a significant sanction, Board of Overseers of the Bar v. Paul Letourneau, BAR-16-17 (2018), involved several incidents of propositioning, text messaging, and sending sexually explicit images of himself to a vulnerable client. For these actions, which may have included acts of criminal harassment, 17-A M.R.S. § 506(1)(A) (2018), Letourneau received a twenty-month suspension of his license to practice law. The ABA Sanctions Standards, as referenced in the first three-Justice opinion, indicate that because Letourneau’s acts were committed intentionally or knowingly, they should be subject to the most severe levels of sanctions. See 2018 ME 121, ¶ 32, citing ABA Sanctions Standard 4.11.
The third Maine case, Board of Overseers of the Bar v. Pongratz, BAR-09-14 (2010), involved an attorney telling a client he found her attractive, crassly referencing her figure, placing a hand on her thigh, propositioning the client, and, after the client terminated his services, refusing to provide a copy of her file for her new counsel until she made arrangements to pay him the fees he claimed she owed him. Prior to his 2004 bar admission, in 1996, Pongratz had been convicted of a federal felony, possession of marijuana with intent to distribute. For these ethical violations, Pongratz received an eighteen-month suspension of his license to practice law, with all but ninety days of the suspension suspended. During the proceedings, the Board had recommended a six-month suspension with all but sixty days suspended, but the single justice imposed the more severe sanction.
The final identified Maine disciplinary case involving sexual relations with a client is Board of Overseers of the Bar v. Nadeau, 2006 Me. LEXIS 167, discussed above. In Nadeau, the Board recommended and the single justice, perhaps unadvisedly, accepted a dismissal with a warning on the undisputed claim of sexual relations with a client, along with a public reprimand regarding Nadeau’s other ethics violations related to his unsuccessful efforts to keep court records regarding his affair confidential.
In sum, the record of Maine professional ethics cases involving sexual relations with a client from which determination of a "presumptive sanction" or the reasonableness of an exercise of sanctioning discretion could be measured is extremely limited—only two cases with sanctions at either end of the sanctions spectrum: Mangan, a disbarment supported by significant aggravating factors not present here, and Nadeau, a dismissal with a warning recommended by the Board, with, at the time, no prior disciplinary history, other than the two concurrent ethics violations found, leading to the Board-recommended public reprimand.
The other two related Maine cases, Letourneau and Pongratz, involved propositioning clients for sex and other intentional, inappropriate and unethical acts, but no sexual relations with clients.
C. Comparable Cases from Other Jurisdictions
Turning to comparable ethics cases from other jurisdictions that the parties’ research has identified, six of the cases from other jurisdictions identified in Attachment A resulted in a disbarment or an actual suspension from the practice of law in excess of six months. Of the three disbarments reported from other jurisdictions, two involved actions, over a longer period of time, with more than one client/victim, and the third involved taking advantage of a client with significant mental health issues and the attorney making significant misrepresentations throughout the disciplinary proceedings.
Twelve of the cases from other jurisdictions resulted in actual suspensions from the practice of law of six months or less and, of those, nine involved actual suspensions of ninety days or less and two involved only a public reprimand or a suspension which, itself, was suspended or deferred. Three of the cases with suspensions of six months or less involved attorneys who had prior findings of ethical violations including one, Morrison (Iowa, 2007), who had previously been admonished for "making sexual advances toward another client."
The most significant case from another jurisdiction did not involve a disbarment but a suspension of one year and one day. In re Kretowicz, BD-2018-106, Mass. S.J.C. Single Justice (March 6, 2019). In Kretowicz, the attorney-client representation in a family matter began in January 2011. From the beginning of the representation, the attorney’s communications with the client were "unusually personal in tone." At some point, a sexual relationship with the client began. In April 2011 and again in June 2011, while the sexual relationship was ongoing, the client was hospitalized after overdosing on drugs and/or alcohol. In August 2011, "the client recognized the danger of being sexually involved with her divorce lawyer and spoke to him about obtaining new counsel." The client’s effort to terminate the professional relationship was unsuccessful. Kretowicz continued to represent the client. On October 1, 2011, the client overdosed on drugs and alcohol and died.
For this tragic outcome of a sexual relationship with a client, a relationship that may have exacerbated emotional difficulties of the client, and a relationship that the client tried to terminate, but that the attorney failed to terminate, ending with the death of the client during the relationship, the attorney received a suspension for only a year and a day.
Putting the Prolman case in context of the totality of the twenty-two analogous disciplinary cases identified by the parties in Maine and other jurisdictions, eight of those involved actual suspensions from the practice of law of more than six months, including four disbarments, one in Maine and three in other jurisdictions. All of the reported disbarments had aggravating factors not present in this case. One other sanctions case, leading to a suspension of a year and a day, involved a severe aggravating factor, death of a client, not present here. Eleven cases involved sanctions that included actual suspensions of ninety days or less and, sometimes, as in Nadeau, no actual suspension at all.
Thus, the six-month suspension originally imposed places the Prolman matter squarely in the middle range of the sanctions that have been imposed for initiating sexual relations with a client in Maine and the other jurisdictions identified by the parties. The sanction is lower than eight of the identified cases, it is higher than the sanction imposed in eleven of the identified cases, and it is identical, or nearly identical, to the sanction imposed in three of the identified cases.
This case has one aggravating factor not shared by most of the other cases, which is the prior federal felony conviction and two-year suspension from the practice of law that involved violations of the Rules of Professional Conduct, which violations occurred outside of Prolman’s work performing legal services and appearing before the courts.
With this background, the Court proceeds to consider the appropriate sanction that will meet the standards articulated in the Law Court’s opinions remanding this matter for reconsideration. In making this determination, the Court will consider the evidence developed on the record that led to the September 14, 2017, order and, additionally, the evidence developed at the April 23, 2019, hearing on Prolman’s motion for reconsideration, plus the evidence and arguments offered at the June 14, 2019, hearing on the sanctions issue.
To address the sanctions issue, the Court will use the analytical approach suggested by the second three-Justice opinion in this matter, noting that a similar analytical approach to determining sanctions has recently been affirmed in Board of Overseers of the Bar v. White, 2019 ME 91, ¶ 4, --- A.2d ---. Application of this analytical approach is aided by the fact that for this reconsideration of sanctions, the Court has a range of sanctions precedents addressing ethical violations involving sexual relations with clients in jurisdictions that, at the time, did not prohibit sexual relations with clients in their professional ethics rules and where the acts involving sexual relations with the client did not result in a criminal conviction.
As it did in the original proceeding, the Court will consider the appropriate sanctions to comply with the Law Court's directive in accordance with the standards laid out in Maine Bar Rule 21 (c).
Rule 21(c) provides,
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
Application of Rule 21(c) can be informed by portions of the ABA Sanctions Standards, as referenced in the first three-Justice opinion, which stated: "Where the attorney acted intentionally or caused injury or potential injury to the client, Standard 4.11 provides for a presumptive sanction of disbarment. ... Conversely, where the attorney acted negligently and caused little to no actual or potential injury to the client, Standard 4.14 provides that the presumptive sanction is an admonition." (citations omitted). 2018 ME 121, ¶ 32.
The requisite state-of-mind determination referenced in both Bar Rule 21(c) and in the ABA Sanctions Standards, and cited in the two remanding opinions is important. In its original order, at page 28, this Court found that: "Prolman’s actions in his treatment of his client and in his failure to disclose to her support team that she would be living with him was negligent and reckless, though probably not so well thought out or planned in advance sufficiently to be considered intentional." Neither the Law Court’s opinion, nor the evidence and arguments presented at the subsequent reconsideration and sanctions hearings have caused this Court to change that finding.
Because Prolman acted negligently and recklessly and was not proved to have acted intentionally or knowingly, application of Bar Rule 21 (c) and the ABA Sanctions Standards, as referenced in the first three-Justice opinion, could be read to preclude the disbarment sanction. This Court does not suggest that its finding of negligence invited a "presumptive sanction" of no suspension and just an admonition as the referenced ABA Sanctions Standards language in the first three-Justice opinion, 2018 ME 121, ¶ 32, could be read to suggest. And this Court certainly does not suggest that sex with a client is "minor misconduct," as the Board's recommendation of a dismissal with a warning suggested in the 2006 Nadeau case. See Bar Rule 21(b)(3).
Accordingly, the Court proceeds to determine the appropriate sanction in excess of the previously ordered six-month suspension but short of disbarment. The Court will analyze the issues following the subheadings in Rule 21(c).
(1) Whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
By negligently and recklessly initiating a sexual relationship with his client and by providing her alcoholic beverages to consume, Prolman violated duties owed to his client and to the legal system, including the officials supervising his client, as found in the 2017 order.
(2) Whether the lawyer acted intentionally, knowingly, or negligently;
Prolman’s actions were negligent and reckless, but not intentional or knowing, as discussed above.
(3) The amount of the actual or potential injury caused by the lawyer's misconduct;
Imposing oneself sexually on a vulnerable and submissive person inevitably causes psychological injury to the person subject to such advances and caused psychological injury to the client in this case. As stated in the finding at page 29 of the Court’s original opinion, the injury caused by Prolman’s conduct essentially continued and confirmed the pattern of men victimizing and oppressing the client that she had endured for most of her life. He also placed his client at risk by providing her alcoholic beverages that could have caused her probation to be revoked or caused her to be denied the early termination of her probation, one of the objectives of his representation.
The damage to the client caused by Prolman’s acts must be put in context. The client encountered Prolman and sought his assistance in finding a safe place to live because of the previous degrading abuse and victimization she had suffered, perpetrated by other men, including her dangerous, assaultive boyfriend. Because she had just had her nose broken and been the victim of a Class B aggravated assault and a Class D domestic violence assault, the authorities sought a place for her to live far removed from her apartment. They did so because they anticipated, apparently correctly, that her lack of cooperation would render it unlikely that they could get bail conditions or a conviction that would keep her boyfriend in jail or at least prohibit his contacting her and returning to their shared apartment. Thus, as found in the 2017 order, the authorities anticipated his prompt release and return to the apartment.
Prolman’s conduct was damaging to the client and another instance of her being betrayed by men she encountered, but it could not have added greatly to her difficult condition already caused by the violent and degrading abuse she had suffered at the hands of others.
(4) The existence of any aggravating or mitigating factors.
In addition to the ethical violations found and the factors discussed in relation to headings 1-3 above, the Court finds the following aggravating or mitigating factors:
Among aggravating factors, first and foremost is the federal conviction and resulting two-year suspension addressed in detail in the Court’s March 7, 2016, order. The Court recognizes that in its September 14, 2017, opinion it gave insufficient attention to this significant aggravating factor when setting the sanction for the ethics violations at issue here. Important factors that must be recognized in any revised sanction are the seriousness of that felony conviction and the fact that Prolman had been reinstated from his previous suspension for less than a year when this new ethical misconduct occurred.
Another aggravating factor to consider in determining an appropriate sanction is Prolman’s admitted consumption of alcoholic beverages in violation of his federal probation conditions, while the client was residing at his apartment.
Looking to mitigating factors, it is important to note that Prolman’s professional services were successful in achieving the client’s objectives in the two cases, one in Maine and one in Florida, for which he was retained. In addition, after the client moved into his apartment, Prolman became directly involved, beyond what his professional obligations would have required, in trying to help his client establish her independence and self-esteem after separation from her dangerously abusive boyfriend. In furtherance of this, he arranged for his client to obtain a new cell phone not controlled by the boyfriend and he arranged for her to get a job at a local restaurant. Unfortunately, this effort wound up further damaging the client’s self-esteem as a result of Prolman’s initiation of a sexual relationship with the client.
Because the changed sanctions order will be imposed in the present, consideration must be given to Prolman’s current status, not the status that existed on or before September 14, 2017, the date of the original order. The evidence presented at the recent hearings demonstrates that Prolman has a commendable record indicating that he represents a large number of clients, mostly in criminal and family matters, and that most clients are satisfied with Prolman’s services and complimentary of his interactions with them. Particularly notable is the large number of communications received from female clients, none of whom indicate that Prolman has engaged in any improprieties with them or improperly crossed any boundaries in his dealings with those clients. Those communications indicate that the inappropriate actions with one client that led to this proceeding was an aberration, not a continuing pattern, in Prolman’s dealings with his clients.
Separately, since being reinstated and continuing, Prolman has assisted an unusually large number of pro bono clients for which he has received recognition through the Katahdin Counsel program and otherwise. That representation, and representation of his regular clients in ways that are satisfactory to those clients, would be disrupted, causing significant harm to them should a further actual suspension be imposed.
In addition to his work with his regular clients and the services he provides to pro bono clients, Prolman is also engaged in important community service work. One area of work is subject to particular note. He is a sincere and devout practitioner of his Jewish religion, regularly attending services at a synagogue in Portland. Recent national visibility to voices of bigotry, including anti-Semitism, stated, with acceptance in some circles, in the name of freedom of speech or freedom of religion, has led to some tragic attacks on individuals and institutions, including synagogues. To address this concern, Prolman has taken it upon himself to assume responsibility and personal risk by providing security services during worship at the synagogue that he attends. While such services would not be deterred should Prolman receive a further actual suspension, the example of this service is offered as an illustration of service he provides, above and beyond what most individuals provide, in service to his community.
In addition, since the Law Court’s opinions, Prolman has engaged, on his own initiative, in monthly counseling to aid his perception of boundary issues and how to stay within proper boundaries in dealings with clients and others in the community.
Considering all of the circumstances discussed above, including the ethical violations, the impacts on the client/victim, the services that Prolman provides to current clients and to pro bona clients, his work in the community, and his commitment to address, through counseling, an issue that led to this proceeding, and respecting the Law Court’s opinion that as a matter of discretion the sanction originally imposed was simply not enough, the Court would reimpose a sanction as follows:
In this Court’s view, serving an additional suspension, beyond the six-month suspension that has already been served, could have a significant adverse effect on the many regular and pro bono clients that Prolman serves, generally commendably, and also on the courts where his services for those clients are provided. However, on the issue of a further suspension from the practice of law, this Court is not painting on a blank page. The Law Court has mandated that, with more attention given to the aggravating factor of the prior conviction and suspension, some additional suspension must be imposed and that once the suspension takes effect, Prolman must be required to petition to be reinstated before he would be allowed to resume the active practice of law.
Accordingly, to respect the Law Court’s direction, the sanction that the Court believes necessary to meet the Law Court’s standards for this single aberrational instance of sexual misconduct with a client and with consideration of Prolman’s prior disciplinary record, is a suspension of two years with all but nine months suspended, with the suspended portion to be served subject to conditions to engage in counseling regarding boundary issues, and to engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships and what the rules of ethics require in terms of those relationships. Further, respecting the Law Court’s direction, once the additional three months added to the suspension from the practice of law takes effect, to accomplish the full nine-month suspension, Prolman could not resume active practice of law until the end of the suspension and such further time as is necessary to petition for and regain reinstatement to the active practice of law.
With the goal of minimizing harm to current clients and the courts, the Court requests that the parties meet and determine, if they can do so by agreement, the date when the additional three-month suspension from the practice of law shall begin.
The Court orders Gary M. Prolman shall be suspended from the practice of law for a term of two years with all but nine months of that suspension suspended, and six months having already been served. The suspended portions of the suspension shall be served subject to compliance with the terms and conditions stated above.
The additional three-month suspension will commence upon a date to be agreed by the parties or, if the parties cannot reach agreement, on a date to be set by the Court. If the parties do not advise the Court of the date they have agreed the suspension may start by July 22, 2019, the Court will itself set the date for the suspension to start.
Date: July 8, 2019
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
1Hewey was not cited in the first three-Justice opinion, but the sanction determination process it recommends is virtually identical to the so-called Hewey formula adopted a quarter century ago, a year after the last revision of the ABA Sanctions Standards.
2The Law Court’s opinion in White stated that this Court "did not explicitly articulate its consideration of the American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar Ass’n 1992) (ABA Sanction Standards) in fashioning the sanction, because the sanction imposed nevertheless comports with the ABA Sanction Standards, we do not disturb the court’s decision on this basis." 2019 ME 91, ¶ 4, ---A.3d ---. As noted and quoted above, this Court’s White opinion, at page 7, explicitly referenced the ABA Sanctions Standards and then discussed why application of those standards was difficult or impossible in the bar disciplinary context.
3Pursuant to Bar Rule 21(b)(3), a dismissal with a warning is "a private non-disciplinary sanction." However, when there is a subsequent disciplinary proceeding involving the same individual, Bar Rule 21(b), last paragraph, directs that sanctions "issued under this Rule shall be provided to tribunals in any subsequent proceedings in which the respondent has been found to have committed misconduct as evidence of prior misconduct bearing upon the issue of the proper sanction to be imposed in the subsequent proceeding."
4In recommending a dismissal with a warning, the Board was suggesting that sex with Nadeau’s client was "minor misconduct, when there is little or no injury to a client . . . . " Bar Rule 21(b)(3).
Board of Overseers of the Bar v. Robert C. Robbins, IV
Download Download Decision (PDF)
Docket No.: BAR-18-12
Issued by: Maine Supreme Judicial Court
Date: July 9, 2019
Respondent: Robert C. Robbins, IV
Bar Number: 008158
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar's Petition for Discharge of Receiver filed on June 28, 2019. For good cause shown and without objection, the Board's Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Receiver of the law practice of Robert C. Robbins. It is further ORDERED that the Board shall continue to ensure that all client property is protected and/or disposed of in a manner consistent with the Maine Rules of Professional Conduct.
Dated: July 9, 2019
Daniel F. Driscoll
Judge
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Gary M. Prolman
Download Download Decision (PDF)
Docket No.: BAR-14-12
Issued by: Maine Supreme Judicial Court
Date: July 22, 2019
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Order
Disposition/Conduct: See July 8, 2019 Sanctions Order
Pursuant to the agreement of the parties as to the start date of the suspension
The Court ORDERS:
Gary M. Prolman shall be suspended from the practice of law for an additional term of three months, with the suspension commencing on October 1, 2019.
Date: July 22, 2019
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Seth T. Carey
Download Download Decision (PDF)
Docket No.: BAR-16-15 & BAR-18-4
Issued by: Maine Supreme Judicial Court
Date: August 15, 2019
Respondent: Seth T. Carey
Bar Number: 009970
Order: Decision Affirmed
Disposition/Conduct: See December 20, 2018 Suspension
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 136
Docket: Cum-19-16
Submitted
On Briefs: July 18, 2019
Decided: August 15, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, HJELM, and HUMPHREY, JJ.
v.
SETH T. CAREY
PER CURIAM
[¶1] In November of 2016, Seth T. Carey—an attorney admitted to the Maine Bar—consented to the entry of a disciplinary order (Brennan, J.). The order established that Carey had committed multiple violations of the Maine Rules of Professional Conduct, which prescribe ethical standards for lawyers, and imposed a two-year suspension of Carey’s law license—a suspension that was itself suspended contingent on Carey’s compliance with nearly thirty specific conditions. In April of 2018, in response to an "expedited petition" filed by the Board of Overseers of the Bar to activate the suspended portion of Carey’s suspension, a single justice (Warren, J.) suspended Carey’s law license, effective immediately and pending a full hearing, after making an initial finding that Carey had engaged in conduct that led to the issuance of a protection order against him. See M. Bar R. 24(a)-(b). The Board later filed a new disciplinary information against Carey, alleging that he had committed other violations of the Maine Rules of Professional Conduct. See M. Bar R. 13(g)(1).
[¶2] In September of 2018, following a three-day hearing on the pending matters, the single justice entered an order finding that Carey had, on numerous occasions, engaged in criminal conduct and violated court orders, all in contravention of the Rules. After holding a sanctions hearing several months later, the single justice entered an order suspending Carey’s license to practice law for three years, see M. Bar R. 13(g)(4), 21(a)(1), (a)(3), (b)(6), with certain conditions to be satisfied while the suspension is in effect. Carey appealed to us,1 see M. Bar R. 13(g)(4), and we affirm the judgment.
[¶3] The following facts are drawn from the findings of the single justice, all of which are supported by competent record evidence, see Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 2, 193 A.3d 808, and from the procedural record.
[¶4] Carey is no stranger to attorney disciplinary proceedings. Since he was admitted to the Maine Bar in 2006, his license to practice law in this State has been suspended no fewer than three times—not including the most recent suspension order—for violations of the rules of ethics governing attorney conduct. In 2009, Carey was sanctioned for misconduct twice. First, his license was suspended for six months and one day after a single justice concluded that Carey had, among other things, improperly communicated with other lawyers’ clients, demonstrated "a profound lack of candor and a clear willingness to mislead [Bar Counsel] and the [Grievance Panel]," and exhibited "a lack of fundamental skills, competencies, and preparation in trial work in general, and criminal defense in particular"—all in violation of the Maine Bar Rules.2 Bd. Of Overseers of the Bar v. Carey, BAR-08-04, at 6-7 (Feb. 12, 2009) (Mead, J.). The single justice also noted that Carey’s testimony at the disciplinary hearing was "evasive, combative, and accusatory." Id. at 5.
[¶5] Later in 2009, Carey was sanctioned for other misconduct he had committed while the earlier disciplinary action was pending. Bd. of Overseers of the Bar v. Carey, BAR-08-10 (Oct. 6, 2009) (Mead, J.). The second order was entered by agreement on the basis of a complaint made by an acquaintance of Carey that, during a visit to her home, Carey became emotionally out of control and, among other things, acted violently toward her puppy. Id. at 1-3. Without admitting to all the conduct alleged in the complaint, Carey agreed that "his conduct was unworthy of an attorney in violation of then applicable M. Bar R. 3.1(a)," and the single justice imposed a sixty-day suspension of Carey’s license to practice, to run concurrently with the earlier suspension. Id. at 3-4.
[¶6] That brings us to the first of the two proceedings directly at issue here. In November of 2016, a single justice entered an agreed-to order finding that, over the course of several years, Carey had violated the Maine Rules of Professional Conduct in several respects. Bd. of Overseers of the Bar v. Carey, BAR-16-15, at 1-8 (Nov. 21, 2016) (Brennan, J.). First, based on a grievance complaint filed against Carey by a judicial officer, the single justice found that Carey had "failed to follow applicable rules, procedures and directives issued by the trial courts," thereby demonstrating, among other things, a lack of core competence and violations of numerous Rules of Professional Conduct: Rule 1.1 (competence);3 Rule 1.3 (diligence);4 Rules 3.3(a)(3) and 3.3(b) (candor toward the tribunal);5 and Rules 8.4(a) and 8.4(d) (misconduct).6 Id. at 3. Second, the single justice found that Carey had engaged in professional misconduct during a workers’ compensation proceeding and again violated rules pertaining to basic attorney competence and diligence. Id. at 6; see M.R. Prof. Conduct 1.1, 1.3; see also supra nn.3-4. Finally, the single justice determined that Carey had failed to abide by the rules governing client trust accounts (IOLTA), which the single justice found particularly troubling because, "as an attorney licensed for more than ten years, Attorney Carey knew or should have known that he could not commingle funds or draw upon his IOLTA account for personal and other non-client expenses." Bd. of Overseers of the Bar v. Carey, BAR-16-15, at 8 (Nov. 21, 2016). Although not explicitly finding that Carey had violated the rules governing the management of client trust accounts, the single justice determined that Carey’s conduct had, once again, demonstrated his incompetence as an attorney in violation of Rule 1.1, see supra n.3. Bd. of Overseers of the Bar v. Carey, BAR-16-15, at 8 (Nov. 21, 2016).
[¶7] Based on these violations, committed against the backdrop of a history of serious and repeated misconduct, the single justice entered an order suspending Carey’s license to practice for two years.7 Id. at 8-9. That suspension, however, was itself suspended so that Carey could continue to practice law subject to twenty-eight conditions. Id. at 9-17. In pertinent part, the conditions required Carey to commence treatment with a psychiatrist8 and "follow the recommendations of the psychiatrist and any other treatment providers he may subsequently be referred to," and to "refrain from all criminal conduct." Id. at 14-15.
[¶8] In April of 2018, while Carey was still subject to the conditions established in the 2016 order, the Board learned that he had engaged in conduct that resulted in an order for protection from abuse being entered against him the previous month by the District Court (Rumford, Mulhern, J.).9 The Board petitioned the court to immediately activate the 2016 suspension of his license. Later that month, after holding a hearing, the single justice (Warren, J.) entered an order suspending Carey’s license pending the final resolution of the case based in part on a preliminary finding that Carey had engaged in criminal activity, namely, unlawful sexual contact and assault.10 See M. Bar R. 24(b).
[¶9] After further investigation, the Board discovered other potential criminal conduct and violations of the Rules, as well as additional instances of Carey’s noncompliance both with the conditions of the 2016 order and with the single justice’s April 2018 order of interim suspension. The Board subsequently filed a separate disciplinary information, later amended twice, framed in five counts: a claim based on Carey’s conduct that resulted in the protection order and Carey’s subsequent attempt to induce the protected person to recant (Count 1); a grievance complaint filed against Carey by a former client (Count 2);11 a claim that Carey violated the court’s April 2018 order of interim suspension (Counts 3 and 5); and a claim that Carey violated conditions of the November 2016 order (Count 4).
A. The Factual Findings
[¶10] After holding a three-day hearing on the Board’s disciplinary information in August of 2018, the single justice entered an order determining, by a preponderance of the evidence, see M. Bar R. 14(b)(4), that Carey had violated the Rules of Professional in Conduct in the following ways.
- Criminal or Unlawful Conduct (Count 1)
- Violations of the 2016 Order of Suspension (Count 4)
- Failure to Comply with the Interim Suspension Order (Counts 3 and 5)
[¶11] In the spring of 2017, Carey rented a room in his house to a woman whom he had met years before when she was a client of his father, who is also an attorney.12 While the woman lived in his house, Carey propositioned her for sex a number of times, but each time the woman declined, at one point telling him that his repeated advances were offensive.
[¶12] After moving out of Carey’s house in late 2017, the woman lived with her boyfriend, but that relationship became abusive, and the woman returned to Carey’s home. Carey agreed that she could stay in his home without paying rent in exchange for cleaning and doing other work around the house, but as part of the arrangement he expected the woman to have sex with him, and he continued to ask her to do so. Having just left an abusive relationship, the woman was dependent on Carey for housing, so despite Carey’s unwelcome advances, she had little choice but to stay there.
[¶13] While the woman lived in Carey’s house during both periods, Carey made unwanted physical advances toward her a number of times, including one time when he entered her bedroom at night and touched her legs and between her thighs, and another time when he stepped in front of her while she sat on the couch, pulled her head against his crotch, and in crude terms asked her to perform oral sex on him. Each time, the woman rebuffed Carey.
[¶14] In March of 2018, Carey evicted the woman from his house, admitting in a text message that he was doing so in part because she would not have sex with him. Following her eviction, based on Carey’s unwanted physical advances while living in the home, the woman filed a complaint for protection from abuse. After a lengthy trial held that same month, the District Court (Mulhern, J.) issued an order of protection against Carey.
[¶15] Based on the evidence presented during this disciplinary proceeding, the single justice determined that Carey’s conduct toward the woman "would constitute criminal or unlawful conduct that would qualify as unlawful sexual touching and domestic assault under 17-A M.R.S. §§ 260(1)(A), 251(1)(G), and 207-A(1)(A) [(2018)]" and "reflects adversely on Carey’s trustworthiness and fitness as a lawyer." The single justice concluded that Carey’s conduct constituted a violation of Maine Rule of Professional Conduct 8.4(b).13
[¶16] There is more. Carey had appealed the protection order.14 While the appeal was pending, Carey met with counsel for the woman and, in what Carey later described as an offer of "settlement," provided the attorney with a number of documents he had drafted. One of the documents contained a statement that the woman would sign and submit to the single justice in this matter and to the Board, stating that "things have been blown out of proportion and Seth Carey did not abuse me." Another document drafted by Carey was an agreement that would require the woman to file a motion in the disciplinary proceeding to "vacate the prosecution" of Carey. That agreement would also require the woman to file a motion to vacate the findings of abuse made by the District Court in the protection proceeding,15 and it provided that once the protection order was vacated, Carey would convey title to his car to the woman. Pursuant to the proposed agreement, if Carey’s law license were reinstated by October 1, 2018, Carey would pay the woman $1,000. All of the terms that Carey proposed were to be made subject to a nondisclosure provision stating that "[n]one of the details of any of this agreement are to be released to the public or anyone not associated with this agreement."
[¶17] At the disciplinary hearing, the single justice rejected Carey’s testimony that the documents constituted a settlement offer, finding that that explanation did "not pass the straight face test" because Carey’s offer was directed at the attorney disciplinary proceeding, which the woman had no authority to settle. Based on this evidence, including Carey’s attempts to conceal his misconduct through a nondisclosure agreement, the single justice reasonably determined that Carey’s actions "constituted an attempt to induce [the woman] to provide false information" and "an attempt to induce a witness to withhold testimony, information, or evidence" in violation of statutes prohibiting tampering with a witness or informant, see 17-A M.R.S. § 454(1)(A)(1)-(2) (2018). The single justice concluded that, because "there can be no dispute that Carey’s conduct reflected adversely on his honesty, trustworthiness, and fitness as a lawyer" and "was prejudicial to the administration of justice," Carey had violated Rules 8.4(b) and (d), see supra nn.6 & 13.
[¶18] The single justice found that Carey had violated several conditions of the 2016 disciplinary order. As we have described above, Carey’s conduct included unlawful sexual touching, domestic assault, and tampering with a witness. In addition to being independent violations of the Rules, this conduct also constituted breaches of a condition of the 2016 disciplinary order that required Carey to "refrain from all criminal conduct."
[¶19] The single justice also found that Carey had not complied with the condition of the 2016 order that required him to be evaluated by a psychologist, see supra n.8, to "follow the recommendations of the psychologist and any other treatment providers he may be subsequently referred to," and to "receive consistent treatment from those providers to promote continuity of care." The single justice noted that the psychologist who evaluated Carey had concluded that Carey "demonstrates a personality disorder marked by a tendency toward grandiosity, suspiciousness, belief that persons who criticize him are engaged in a vendetta or conspiracy against him, argumentativeness, holding grudges, difficulty expressing anger in a socially appropriate manner, and a tendency to blame others for any setbacks." The psychologist recommended that Carey "engage in psychotherapy with a clinical psychologist for no less than 12 weeks" to address some of these issues and "consult a licensed psychiatrist and comply with any recommended psychiatric medications for ADHD." Although Carey attended a number of sessions with a psychologist, he ultimately stopped participating in treatment, calling the process "worthless." Carey also declined to follow the evaluator’s recommendation to see a licensed psychiatrist regarding his ADHD. On these grounds, the single justice concluded that Carey had violated the mental health provisions of the 2016 order.16
[¶20] The single justice also found that Carey had violated the April 2018 order of interim suspension in a number of ways. Despite the requirement in the order that Carey "cease all operations of any and all of his websites, any Facebook account(s) relating or referring to his practice as a lawyer, and any other form of advertising of his legal services during the period of this suspension," Carey did not do so. Additionally, Carey violated the suspension order by representing or attempting to represent clients after the suspension became effective. For example, in early May of 2018, despite knowing that his license to practice was suspended, Carey signed a complaint on behalf of a client and submitted the pleading for filing with the court—a filing that the court rejected because Carey was not authorized to practice law. In the same case, after being suspended, Carey had two separate conversations with opposing counsel in which Carey stated that he was "calling as a paralegal" but then proceeded to discuss the merits of the case in a way that, the single justice found, "was not just tiptoeing along the line with respect to his suspension but [was] stepp[ing] over the line."
[¶21] In a different case, Carey was so active that the presiding judge issued an order prohibiting him from communicating with opposing counsel. And in yet another case, Carey attempted to file an appeal in a small claims matter "by adding himself as a party in the caption of the notice of appeal and signing the notice as the appellant (with ‘Appellant’s Attorney’ crossed out)." That notice of appeal also was rejected by the presiding judge because of the status of Carey’s license.
[¶22] Further, at least three times Carey wrote checks on one of his law office accounts despite the single justice’s appointment of a receiver, who was given control of those accounts. Finally, the court found that Carey had continued his campaign for election as District Attorney while knowing that he was prohibited from practicing law in Maine. Based on evidence of his campaign activities, the single justice found that Carey had implicitly represented to the public that he was a lawyer capable of serving as District Attorney, a role that requires the elected official to "make prosecutorial decisions, set policy and supervise the lawyers in the District Attorney’s office."
[¶23] The single justice concluded that Carey’s conduct during the interim suspension demonstrated that he had "acted in derogation of the court’s interim suspension order and violated Rule 3.4(c) of the Rules of Professional Conduct by knowingly disobeying an obligation under the rules of a tribunal."17
B. Sanctions
[¶24] Several months after entering the order concluding that Carey had violated the Rules of Professional Conduct as described above, the single justice held a hearing on sanctions. Following the sanctions hearing, on December 20, 2018, the single justice entered an order in which he analyzed each of Carey’s violations, properly considering the factors set forth in both Maine Bar Rule 21(c) and the American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar Ass’n 1992). The single justice determined that Carey’s criminal or otherwise unlawful conduct that led to the order of protection from abuse and the majority of his willful violations of the interim suspension order could each warrant a suspension of his license. The single justice observed, however, that Carey’s continued campaign for District Attorney after being suspended from practice, which could constitute "a serious interference to the legal system," and Carey’s attempt to induce a witness to testify falsely or withhold information were all of sufficient gravity that could warrant a more profound judicial response—disbarment.18 The single justice then weighed mitigating and aggravating circumstances—notably, Carey’s "significant prior disciplinary history"—and, while concluding that disbarment would be an "entirely reasonable" sanction given the totality of Carey’s violations, instead chose to impose a three-year suspension with conditions.
[¶25] Carey filed this appeal from the single justice’s order on sanctions. See M. Bar R. 13(g)(4); see also supra n.1.
[¶26] We first address the Board’s motion to dismiss Carey’s appeal outright due to his violations of the Rules of Appellate Procedure and orders we have issued in this proceeding. We then consider the merits of Carey’s contentions on appeal.
A. Motion to Dismiss
[¶27] The Board has moved to dismiss this appeal.
[¶28] In accordance with the schedule set for this appeal, Carey timely filed his brief and the first version of the appendix on April 5, 2019. Three days later, we entered an order rejecting Carey’s appendix, specifically noting that—among other defects—it contained neither the document that initiated the proceeding in the trial court nor all amendments to that initiating document, see M.R. App. P. 8(d)(4). We ordered Carey to file a replacement appendix, emphasizing that "[t]he deficiencies described above are not necessarily the only deficiencies," and stating that "Carey must ensure that the replacement appendix fully complies with the rules and not merely that the deficiencies indicated above are fixed." In the same order, we required that Carey file "a replacement brief that corrects the citations to the appendix but that makes no other changes." (Emphasis added.) Carey then filed a replacement appendix and brief.
[¶29] One week later, the Board filed a motion to dismiss the appeal on the grounds that neither Carey’s replacement appendix nor his replacement brief comported with the Rules of Appellate Procedure, see M.R. App. P. 7A, 8, and that large portions of his replacement brief had been substantively rewritten in violation of our order.19 We then issued a second order, stating in relevant part that we would consider the Board’s motion to dismiss in conjunction with the merits of the appeal.
- The Replacement Appendix
- The Replacement Brief
- Conclusion on the Board’s Motion
[¶30] Carey’s replacement appendix, which is more than three-hundred pages long, is affected by the following defects, among many others:
[¶31] As is noted above, we also ordered Carey to file a replacement brief that made no changes to his original brief except to update references to the replacement appendix. Instead, Carey submitted a replacement brief that includes significant and substantive changes, including the deletion of entire paragraphs and sections that are rewritten. Carey contends that the changes are "minor corrective and contextual edits" and are "a natural extension occurring as a result of the Court’s directive to alter the appendix." That characterization of his violations of our order is false. The reality is that Carey patently violated an order of this Court.
[¶32] In this case, where his professional license and livelihood are on the line, Carey has demonstrated an unwillingness to comply both with the rules governing appellate procedure and with an order issued by us—the court of last resort—governing the procedure in this appeal. In other types of cases, we might well grant a motion to dismiss an appeal that has been prosecuted as poorly and irresponsibly as this one. In this case, however, we are acutely mindful of the critical mission of ensuring that the public is served by members of a bar who are held to the core ethical standards that define and are integral to the legal profession. As we discuss below, the shortcomings in Carey’s presentation on this appeal will make it impossible for us to reach many of his contentions in a meaningful way. Nonetheless, to promote the fundamental objective of promoting public confidence in the justice system, we exercise our discretion by reaching the merits of his challenges to the extent the record allows us to do so and shining a light on Carey’s professional misconduct, rather than dismissing the appeal on procedural grounds.
B. Merits of the Challenges on Appeal
[¶33] Carey challenges numerous aspects of the single justice’s judgment. Many of the issues he raises, however, were not properly preserved for review, making meaningful analysis difficult, if not impossible. And many of Carey’s assertions reflect fundamental misunderstandings of the trial proceedings and the single justice’s orders. We will not address the issues that Carey failed to preserve. See Homeward Residential, Inc. v. Gregor, 2017 ME 128, ¶ 9, 165 A.3d 357; Landis v. Hannaford Bros. Co., 2000 ME 111, ¶ 13, 754 A.2d 958.
[¶34] Further, with respect to his challenges to the single justice’s determination of sanctions, Carey has failed to include in the record the transcript of the hearing on sanctions, which led to the order that Carey challenges on appeal. We therefore "must assume that the [single justice’s] findings are supported by competent evidence in the record." McGarvey v. McGarvey, 2019 ME 40, ¶ 5, 204 A.3d 1276; see also Springer v. Springer, 2009 ME 118, ¶¶ 2-3, 8, 984 A.2d 828.
[¶35] To the extent that Carey has properly preserved issues for our review, we find no error in any of the single justice’s findings of fact, his legal determinations and conclusions, his discretionary calls, and his management of the proceedings. All the factual findings contained in the September order are supported by competent record evidence, and the December order presents a measured and thoughtful analysis of Carey’s conduct and determination of the nature and duration of the sanctions imposed for Carey’s ethical violations.
[¶36] In the sanctions order, the single justice correctly stated that the purpose of lawyer discipline is not punishment but protection of the public and the courts, see Bd. of Overseers of the Bar v. Rodway, 470 A.2d 790, 791 (Me. 1984), and he then addressed each of the factors that the Bar Rules require to be considered, see M. Bar R. 21(c). No matter the view one takes of the application of the ABA Standards for Imposing Lawyer Sanctions—whether formulaic or conceptual, see Bd. of Overseers of the Bar v. White, 2019 ME 91, ¶ 4, ---A.3d---; see also Prolman, 2018 ME 128, ¶ 25, 193 A.3d 808—a three-year suspension of Carey’s license to practice is not an inappropriate sanction. As the single justice correctly observed, disbarment would not have been inappropriate. Nonetheless, the single justice did not err by imposing a more moderate sanction that is tailored to reasonably protect the public and the courts, while still allowing Carey the opportunity to rehabilitate and demonstrate a capacity to abide by the rules and ethical standards that govern the conduct of all attorneys licensed to practice in Maine—a demonstration that Carey will need to make in order to re-enter the practice of law after at least three years, pursuant to Maine Bar Rule 29.20
The entry is:
Motion to dismiss denied. Judgment affirmed.
Seth T. Carey, appellant pro se
Aria Eee, Esq., Board of Overseers of the Bar, Augusta, for appellee Board of Overseers of the Bar
1Carey’s notice of appeal designates only the court’s December 2018 order on sanctions as the order from which he is appealing. In addition to Carey’s assertions of error with respect to that order, however, he also challenges the underlying factual findings contained in the September 2018 order, which he did not designate in his notice of appeal. See M.R. App. P. 2A(b)(1) (stating that a notice of appeal must "designate the judgment or part thereof appealed from"). We address the latter challenges nonetheless.
2Until August of 2009, the Code of Professional Responsibility, which set out the ethical standards imposed on Maine lawyers, was found in Maine Bar Rule 3 (Tower 2008). That Code was abrogated and replaced by the Maine Rules of Professional Conduct, which are presently in effect. See M.R. Prof. Conduct Preamble (1); see also Snow v. Bernstein, 2017 ME 239, ¶ 13, 176 A.3d 729.
3Rule 1.1 provides that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
4Rule 1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."
5Rule 3.3(a)(3) provides that "[a] lawyer shall not knowingly . . . offer evidence that is false," and Rule 3.3(b) provides that "[a] lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."
6Rule 8.4(a) provides that "[i]t is professional misconduct for a lawyer to . . . violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another," and Rule 8.4(d) provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."
7Despite agreeing to the disciplinary order, less than two months later Carey filed a civil complaint against various individuals and entities that were directly or indirectly involved in the disciplinary proceeding. See Carey v. Bd. of Overseers of the Bar, 2018 ME 119, ¶ 12, 192 A.3d 589. Ultimately, the court (Anderson, J.) granted motions to dismiss parts of the complaint and motions for summary judgment on the remaining parts, all of which we affirmed on Carey's appeal. Id. ¶¶ 1-2.
8The 2016 order was later amended to allow Carey to commence treatment with a psychologist, rather than a psychiatrist.
9The Board learned of the order of protection entered against Carey when, pursuant to a specific condition of the 2016 order requiring him to provide such information, he copied the Board on an email he sent to the director of the Maine Assistance Program for Lawyers and Judges. Carey provided the notice by stating, "I have been falsely convicted of abuse in a PFA." It bears note that two judicial officers, in two different legal proceedings, found the protected person’s account of Carey’s wrongful conduct to be credible. Despite this, and despite the firmly established principle that we defer to credibility determinations made by fact-finders at trial, see Doe v. Plourde, 2019 ME 109, ¶ 8, ---A.3d--- (stating that "determinations of the weight and credibility of testimony and evidence are squarely within the province of the fact-finder" (quotation marks omitted)), on this appeal Carey aggressively asserts that the testimony of the protected person should not be believed.
10Although the single justice issued the order of interim suspension at a hearing on the Board’s petition to activate the suspended suspension ordered in 2016, it appears that the interim suspension was based on the separate authority created in Rule 24, which authorizes an interim suspension when the evidence demonstrates that the lawyer violated the Rules of Professional Conduct in a way that imminently threatens a client, the public, or the administration of justice. See M. Bar. R. 24(a)-(b). Regardless of the particular authority, the result was the same—Carey was prohibited from practicing law pending the entry of a final judgment.
11On the second day of the subsequent disciplinary hearing, the court granted the Board’s motion to dismiss Count 2.
12The Board alleged in its disciplinary information that, on at least one brief occasion, Carey had acted as substitute counsel for the woman and therefore the woman was a former client of Carey’s, binding him to the rules of conduct associated with that attorney-client relationship. See M.R. Prof. Conduct 1.9 (duties to former clients). The single justice disagreed.
Additionally, Carey and the woman developed a brief personal relationship at some point during the fall of 2016, but it had ended before the woman moved into Carey’s house.
13M.R. Prof. Conduct 8.4(b) provides that "[i]t is professional misconduct for a lawyer to . . . commit a criminal or unlawful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects."
14We affirmed the judgment on appeal. Doe v. Carey, Mem-18-79 (Oct. 18, 2018).
15Carey also presented the woman’s attorney with a draft of the motion to vacate the findings of abuse that he wanted the woman to file in the District Court protection action.
16Although the Board had alleged that Carey’s notification of the Board regarding the District Court’s entry of the protection order against him, see supra n.9, did not meet the notification requirement included as a condition of the 2016 order, the single justice found that the Board did not prove that allegation.
17Rule 3.4(c) provides that "[a] lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists."
18The single justice concluded that Carey’s violations of the 2016 order regarding his failure to follow the recommendations of the evaluating psychologist were intentional but not serious.
19Carey responded to the Board’s motion to dismiss, but—despite the stakes involved in this case—his responsive filing was not timely. See M.R. App. P. 10(c).
20Reinstatement will not be automatic. Pursuant to Rule 29(a), an attorney whose license has been suspended for more than six months may petition for reinstatement no earlier than six months before the period of suspension is set to expire. In order to then qualify for reinstatement, the attorney must demonstrate—among other things—that he or she has fully complied with the terms and conditions of all prior disciplinary orders; has not engaged or attempted to engage in the unauthorized practice of law while suspended; has recognized the wrongfulness and seriousness of the misconduct for which the attorney was suspended; has not engaged in any other professional misconduct since the suspension; and demonstrates the requisite honesty and integrity to practice law. M. Bar R. 29(e).
Board of Overseers of the Bar v. In Re Joanne Dugan Colvin
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Docket No.: BAR-19-4
Issued by: Maine Supreme Judicial Court
Date: May 28, 2019
Respondent: Joanne Dugan Colvin
Bar Number: 006800
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. 4(i) & 29
Joanne Dugan Colvin has petitioned for reinstatement to Maine bar. Pursuant to M. Bar R. 29(f)(l), Bar Counsel has stipulated to Ms. Colvin’s reinstatement, subject to the Court’s approval.
The Court has reviewed Ms. Colvin’s Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Joanne Dugan Colvin, Bar #006800, is hereby reinstated to the Maine bar with all the rights and responsibilities hereto.
Dated: May 28, 2019
For the Court,
District Court Judge Daniel Driscoll
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Anthony P. Shusta II, Esq.
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Docket No.: BAR-19-6
Issued by: Maine Supreme Judicial Court
Date: September 4, 2019
Respondent: Anthony P. Shusta II, Esq.
Bar Number: 003424
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon consideration of Petition filed by the Board of Overseers of the Bar (Board), the Court Orders the following:
As of this date, Rebecca Cayford, Esq., and the Board (through its Special Counsel) are appointed as the Co-Receivers of Anthony P. Shusta’s law practice. As such, the Co-Receivers shall have the sole authority to:
- secure any professional files, client property, and client data of Attorney Shusta;
- inventory the client files;
- give priority to client matters that may be identified as open, active, and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client, or office accounts.
As a service to the bar, Attorney Cayford and the Board shall serve as Co-Receivers on a pro bono basis, although if there are sufficient assets (including receivables) from Shusta’s law practice, the Co-Receivers may be reimbursed from those assets.
Likewise, the Co-Receivers shall submit an itemized list of any disbursements made to effect the terms of this Order. Attorney Shusta shall be the first choice for source of payment for those disbursements. If insufficient assets are available from the law office, the Board of Overseers may be an alternative payment source for expenses related to the law office closure.
Attorney Cayford and the Board shall act as Co-Receivers until discharged by the Court either by Motion or in accordance with M. Bar R. 32.
The Co-Receivers, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32.
Attorney Cayford and the Board shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receivers shall file a status report with the Court.
Dated: September 4, 2019
E. Mary Kelly
Judge
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Gary M. Prolman, Esq.
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Docket No.: BAR-14-12
Issued by: Maine Supreme Judicial Court
Date: September 18, 2019
Respondent: Gary M. Prolman, Esq.
Bar Number: 007253
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. BAR R. 32
Pursuant to M. Bar R. 32, and with agreement of the parties, the Court Orders the following:
Effective October 1, 2019, Neal Weinstein, Esq., is appointed as the Receiver of Gary M. Prolman’s law practice. As such, Attorney Weinstein, with any necessary assistance from the Board of Overseers, shall have the sole authority to:
- Assume responsibility for the Prolman law office and secure the professional files, client funds, and file property of that office;
- Obtain signatory authority over all Prolman law office bank accounts (IOLTA operating/office accounts; fiduciary accounts);
- Obtain access to Prolman’s computer hardware and software; including any mobile devices (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and, if necessary, the closed client files;
- Give priority attention to client matters which are open and time sensitive;
- Notify all courts that Attorney Weinstein is serving as Prolman’s Receiver until further order of this Court;
- Notify clients or former clients that Attorney Weinstein is serving as Receiver for the Prolman law practice and provide opportunity for clients to consult with the Receiver or retrieve their property; and
- The Receiver shall access Prolman’s operating and IOLTA accounts to prudently and appropriately administer the practice. The Receiver may pay expenses, as he deems appropriate, given available funds or anticipated receivables to the firm. The Receiver may also hire temporary office staff and take other action as necessary and appropriate to administer the Prolman law practice.
As a service to the bar, Attorney Weinstein acknowledges that he shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) at three-month intervals, from Prolman’s law practice, Attorney Weinstein may be reimbursed from those assets. Ninety days after October 1, 2019, the Receiver shall submit a written report to the Court, copied to the Board of Overseers, containing a record of time worked.
Also within that Report, the Receiver shall submit an itemized list of any disbursements made to comply with the terms of this Order. Prolman and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Attorney Prolman, the Court will determine an alternative payment source for those disbursements.
Attorney Weinstein shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32.
Attorney Weinstein, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
Furthermore, Attorney Weinstein may be engaged by any former client of Prolman’s provided that the Receiver informs such client in writing that the client is free to choose to employ any attorney, and that the Court’s appointment order does not mandate or recommend the Receiver’s employment by the client.
The Receiver is subject to all Maine Rules of Professional Conduct, including M. R. Prof. Conduct 1.7; 1.8; and 1.9 regarding conflicts of interest. A client’s retention of the Receiver as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Weinstein shall be protected from liability for professional services rendered in accordance with this Order.
Finally, by February 1, 2020, the Receiver shall file a status report with the Court, with a copy to the Board of Overseers, c/o Special Bar Counsel Angela Morse, Esq.
Dated: September 18, 2019
Donald G. Alexander
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Lawrence A. Lunn, Esq.
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Docket No.: GCF #18-137
Issued by: Grievance Commission
Date: September 20, 2019
Respondent: Lawrence A. Lunn, Esq.
Bar Number: 002358
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Report Finding of Probable Cause for Filing of Information with the Court
M. Bar R. 13(e)(10)(E)
On September 20, 2019, Panel A of the Grievance Commission (the "Panel") conducted a telephonic disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Lawrence A. Lunn, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on February 1, 2019.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Lunn appeared pro se. Prior to the hearing, the parties agreed to a stipulation that based upon the conduct alleged in the Disciplinary Petition, and Attorney Lunn’s prior disciplinary history, that there was probable cause for suspension pursuant to M. Bar R. 13(e)(10)(E), and that the matter should proceed by way of information before a single justice.
The Panel incorporates herein by reference the parties’ exhibits in connection with this disciplinary proceeding, and highlights in its Finding of Probable Cause for Filing of an Information ("Finding of Probable Cause") two specific matters of importance:
- The Divorce Judgment in the matter of James M. Leonard v. Lorraine P. Leonard (BANGDC-FM-18-043) was entered by the court on April 5, 2018. Attorney Lunn represents via Board Exhibit #11 that he spent 7.3 hours working on his client’s behalf in connection with the divorce proceeding, earning a total of $1,095 (7.31 hours x $150/hour). By this calculation, Attorney Lunn was obligated to timely refund to his client $1,905, which was the balance of the $3,000 retainer. Attorney Lunn testified during the telephonic disciplinary hearing on September 20, 2019, that he failed to timely return to his client the balance of the retainer on account of Attorney Lunn feeling "nickel and dimed" having reduced his hourly fee from $200/hour to $150/hour at the outset of the representation; and "annoyed" and "angry" with his client for how his client spoke to him and/or treated him during the course of the representation. Attorney Lunn returned $2,500 of the retainer to his client on January 30, 2019, upon being ordered to do so by the Fee Arbitration Panel of the Fee Arbitration Commission ("Fee Panel"), approximately 9 months after the court entered the Divorce Judgment.
- The exhibits Attorney Lunn prepared and submitted in response to GCF No. 18-137 support a conclusion that Attorney Lunn and the public would benefit from ongoing oversight and supervision after his period of suspension concludes. Specifically, Attorney Lunn’s office filing, documentation, and organizational systems; attention to administrative detail; methods of communicating to the court and clients; and systems for recording time spent in connection with legal services he renders and billing clients for the same needs substantial improvement (see, e.g. Board Exhibit #9, paragraph 4; Respondent’s Answer, paragraph 24; Board Exhibits #11, #12).
Therefore, after inquiry of the parties, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is a finding of probable cause for suspension, and directs Bar Counsel to prepare and file an information with the Clerk of the Law Court pursuant to M. Bar R. 13(e)(10)(E)
Date: September 20, 2019
Cynthia M. Mehnert, Esq., Panel Chair
Megan A. Sanders, Esq., Panel Member
Milton R. Wright, Public Member
1At a hearing held before Fee Panel on December 4, 2018, Attorney Lunn asserted that he spent 7.25 hours on Mr. Leonard’s case justifying a fee of $1,087.50. Attorney Lunn’s representation before the Fee Panel is inconsistent with the representation Attorney Lunn makes in Board Exhibit #11, which asserts that he spent 7.3 hours (not 7.25 hours) on Mr. Leonard’s case. Undersigned members of the Panel make note of this discrepancy in further support of numbered paragraph 2 on page 3 of this Finding of Probable Cause.
Board of Overseers of the Bar v. Heidi M. Pushard (Drew), Esq.
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Docket No.: GCF #18-364
Issued by: Grievance Commission
Date: November 8, 2019
Respondent: Heidi M. Pushard (Drew), Esq.
Bar Number: 004704
Order: Reprimand
Disposition/Conduct: Diligence, Communication, Prejudicial Conduct
M. Bar R. 13(e)
On November 8, 2019, with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Heidi M. Pushard (Drew), Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the June 11, 2019 filing of a Formal Disciplinary Petition.
The initial sanction hearing occurred on August 28, 2019. While the parties were then in agreement, the Commission declined to accept their negotiated order, without the addition of a mentoring component. Following a period of time for further negotiation and scheduling, the final hearing was set for November 8.
At that hearing, Attorney Pushard appeared pro se. The Board was represented by Bar Counsel, Aria Eee. Although not present, the complainant Chad Nguyen was provided an advanced copy of the proposed order negotiated by the parties. Complainant submitted additional comments via email.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advanced review and consideration. Mr. Nguyen was also provided with a copy of the parties’ proposed Stipulated Report in advance of the hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission Panel makes the following disposition:
Respondent Heidi M. Pushard (Drew), Esq. of Turner, ME has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Pushard is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (MRPC). Attorney Pushard was admitted to the Maine Bar in 2010 and she is currently a solo practitioner.
According to the parties’ stipulations, the Panel finds the following relevant facts: In February 2018 Mr. Nguyen hired Attorney Pushard to represent him in a family matter (contempt) and paid her one half of the $1,000 retainer. By that time, the contempt proceeding was already scheduled for a March 13, 2018 hearing date. Following a postponed date, the hearing occurred on April 12, 2018. Mr. Nguyen paid Attorney Pushard the full retainer prior to that time. She has since repaid that full retainer, consistent with an award of the Fee Arbitration Commission.
Attorney Pushard engaged in minimal contact with Mr. Nguyen, thus violating MRPC 1.4 concerning communication. Unfortunately, Attorney Pushard met only briefly with Mr. Nguyen prior to the hearing, and he felt nervous and uncertain about the outcome of his contempt hearing.
The District Court ruled from the bench on Nguyen’s motion for contempt. The trial judge directed Attorney Pushard to prepare the order for his review and signature. Attorney Pushard did not do so, although she was successful in prosecuting the contempt proceeding on behalf of her client.
Within a few months, Nguyen’s former domestic partner reportedly acted in violation of the April contempt ruling. There was no action Mr. Nguyen could take to enforce the court's order because Attorney Pushard had failed to submit a draft for the court’s signature. In doing so, Attorney Pushard violated specific portions M. R. Prof. Conduct 1.3[diligence]; 1.4[communication] and 8.4.(d)[prejudicial conduct]. When Mr. Nguyen discovered that the proposed order had not been filed, he repeatedly contacted his attorney and the court.
On July 2, 2018 the court issued an order concerning Mr. Nguyen’s lack of document filing. From the contents of that order, it is apparent that Nguyen’s action could have been dismissed due to Attorney Pushard’s failure to file the proposed order. The court subsequently scheduled a status conference for September 2018 which provided additional time for Attorney Pushard to file the order. Attorney Pushard apparently did not receive the court’s notice and she failed to appear for the September 13, 2018 status conference. The judge noted her failed appearance and proposed to sanction Attorney Pushard if she did not file the draft order by September 28, 2018. Attorney Pushard filed the document on or about September 25, 2018.
Beyond her failure to file the proposed order, Attorney Pushard assured Mr. Nguyen that she would send a letter demanding the child’s mother to comply with the court’s directives. Unfortunately, she failed to send that letter.
The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Pushard agrees that she did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Attorney Pushard agrees that her misconduct violated duties that she owed to her client and to the profession. However, the Commission does not find that Attorney Pushard acted with the intent to harm her client’s interests. It is apparent from Mr. Nguyen’s attempted contacts with Attorney Pushard that he was seeking to meet and plan for the court hearing. His expectations for contact with his attorney were reasonable and Attorney Pushard acknowledges that her lapse in this client communication was inconsistent with her professional obligations.
While Attorney Pushard previously contended that the contempt decision was effective as of the April hearing date, without a signed order, Mr. Nguyen would have been unsuccessful in pursuing additional relief. Accordingly, he was harmed by the delays resulting from Attorney Pushard’s inaction.
Regarding aggravating factors, Attorney Pushard engaged in a pattern of misconduct through the above-outlined events. In mitigation, Attorney Pushard has admitted that misconduct, has expressed remorse for the misconduct, and has been cooperative throughout the investigation and prosecution of this matter. Additionally, the Panel understands that at the relevant time of these events, Attorney Pushard was experiencing some difficult personal issues that affected her ability to properly monitor her client relations and some aspects of her practice management. Since that time, Attorney Pushard has received mentoring by a local attorney and undertaken additional, relevant ethics education.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Reprimand is the appropriate sanction to address the misconduct by Attorney Pushard. The Panel also finds that a period of formal mentoring by Attorney James Howaniec is appropriate, given the particular circumstances of this matter. The mentoring period shall last for six months from the effective date of this order.
Accordingly, the Commission accepts the agreement of the parties, including Attorney Pushard’s separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a reprimand to Heidi M. Pushard (Drew), Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: November 8, 2019
Thomas H. Kelley, Esq., Panel Chair
Margaret D. McGaughey, Esq., Panel Member
Jud Knox, Public Member
Board of Overseers of the Bar v. Suzanne Dwyer-Jones, Esq.
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Docket No.: GCF #17-138
Issued by: Grievance Commission
Date: November 18, 2019
Respondent: Suzanne Dwyer-Jones, Esq.
Bar Number: 008638
Order: Reprimand
Disposition/Conduct: Communication, Prejudicial Conduct
M. Bar R. 13(e)
On November 8, 2019 with due notice, Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Suzanne Dwyer-Jones, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the March 20, 2019 filing of a Stipulated Disciplinary Petition. The initial sanction hearing occurred on August 28, 2019. While the parties were then in agreement, the Commission declined to accept their negotiated order, without the addition of a mentoring component. Following a period of time for further negotiation and scheduling, the final hearing was set for November 8.
At that hearing, Attorney Dwyer-Jones was represented by counsel, Attorney Charles W. Smith, and the Board was represented by Bar Counsel Aria Eee. Although the Clerk provided complainant, John A. Penta, with notice of this action, he did not appear.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advanced review and consideration. Bar Counsel also provided Mr. Penta with a copy of the parties’ proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission Panel makes the following disposition:
Respondent Suzanne Dwyer-Jones, Esq. (Attorney Dwyer-Jones) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Dwyer-Jones is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R.P.C.). Attorney Dwyer-Jones was admitted to the Maine Bar in 1998 and she is currently practicing in a small York County firm.
According to the parties’ stipulations, the Panel finds the following relevant facts:
On March 29, 2019, John A. Penta filed a complaint against Attorney Dwyer-Jones regarding her personal and professional conduct. Contemporaneously with his Maine complaint filing, Mr. Penta complained to the Massachusetts Bar about Attorney Dwyer-Jones’ alleged misconduct.
Attorney Dwyer-Jones filed a response to the Maine grievance matter, denying any professional misconduct. She subsequently filed a response to the Massachusetts action.
As it related to the underlying proceeding, Mr. Penta retained Attorney Dwyer-Jones for a criminal case then pending in the Lowell District Court in Massachusetts. There was a $1,000 flat fee agreement between Attorney Dwyer-Jones and Mr. Penta governing the representation. At that time however, Attorney Dwyer-Jones’s Massachusetts license was administratively suspended for her failure to register with that jurisdiction. Because she was apparently unaware of her suspension, Attorney Dwyer-Jones did not initiate a request to have her license reinstated with the Massachusetts Bar until December 30, 2016. Thus, by that time she was scheduled to appear on Mr. Penta’s behalf, she was not properly licensed, a fact Attorney Dwyer-Jones concedes. The Massachusetts Bar subsequently reinstated Attorney Dwyer-Jones’s license on January 18, 2017.
Due to the Massachusetts Bar’s investigation, Maine Bar Counsel stayed the Penta complaint matter until Massachusetts completed its work. Following continued interaction with Maine Bar Counsel, Attorney Dwyer-Jones ultimately acknowledged that it was improper for her to have accepted the new representation of Mr. Penta. In doing so, Attorney Dwyer-Jones agrees that she engaged in professional misconduct, specifically M. R. Prof. Conduct 1.4[communication with clients], and 8.4(d)[prejudicial conduct]. Attorney Dwyer-Jones further agrees that on occasion, her interactions with Mr. Penta were too informal, and exceeded the bounds of suitable attorney/client communications.
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Attorney Dwyer-Jones agrees that she violated her duties to comply with those Rules.
The Panel notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Attorney Dwyer-Jones agrees that she did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Attorney Dwyer-Jones agrees that her misconduct violated duties that she owed to her client and to the profession. However, the Commission does not find that Attorney Dwyer-Jones acted with the intent to harm her client’s interests.
Regarding aggravating factors, Attorney Dwyer-Jones has received prior discipline and she has substantial experience in the practice of law. In mitigation, Attorney Dwyer-Jones has admitted her misconduct, has expressed remorse for that misconduct and has been cooperative throughout the investigation and prosecution of this matter. She also refunded a substantial part of Mr. Penta’s legal fees.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Public Reprimand is the appropriate sanction to address the misconduct by Attorney Dwyer-Jones. The Panel also finds that it is appropriate for Attorney Dwyer-Jones to continue the behavioral health counseling she has voluntarily undertaken and for there to be formal law office management mentoring by Attorney Linda A. Maloy. The mentoring period shall last one year from the effective date of this order.
Accordingly, the Commission accepts the agreement of the parties, including Attorney Dwyer-Jones’ separately executed waiver of the right to file for a Petition for Review, and concludes that the appropriate disposition of this case is a Reprimand to Suzanne Dwyer-Jones, Esq. which is now hereby issued and imposed upon her pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Date: November 18, 2019
Thomas H. Kelley, Esq., Panel Chair
Margaret D. McGaughey, Esq., Panel Member
Jud Knox, Public Member
Board of Overseers of the Bar v. Thomas J. Poulin, Jr.
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Docket No.: GCF #18-460
Issued by: Grievance Commission
Date: November 25, 2019
Respondent: Thomas J. Poulin, Jr.
Bar Number: 003896
Order: Admonition
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate or attempt to violate any provision of the MRPC or Maine Bar Rules
M. Bar R. 13(e)(7)(D)
On November 25, 2019, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Thomas J. Poulin. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar on August 1, 2019.
At the November 25, 2019 stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Thomas J. Poulin, Jr. appeared pro se without counsel. Prior to the hearing, the parties had submitted a proposed Stipulated Report of Findings for the Panel’s review and consideration.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following disposition:
- Respondent Thomas J. Poulin, Jr., currently of Chesterville, Maine, was at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law in the State of Maine and/or a suspended Maine Attorney, in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Mr. Poulin was admitted to the Maine bar in 1988 and he is currently subject to an administrative non-disciplinary suspension.
- October 16, 2018 Mr. Poulin was administratively suspended by the Board for his failure to register and pay the fees required by the Maine Bar Rules.
- Mr. Poulin did not file the affidavit certifying his compliance with Maine Bar Rule 4(k) as required within 30 days after that suspension date.
- On December 14, 2018, Bar Counsel docketed a sua sponte grievance complaint against Mr. Poulin based upon his failure to comply with the affidavit requirements.
- Bar Counsel sent letters to Mr. Poulin on January 3, 2019 and March 1, 2019 notifying him of his obligations and requesting his response; however, Mr. Poulin failed to respond to the investigation of this grievance matter in violation of M. R. Prof. Conduct 8.1(b).
- On July 2, 2019 a panel of the Grievance Commission reviewed Mr. Poulin’s actions and, based upon that review, found probable cause to believe that he had engaged in misconduct subject to sanction under the Maine Bar Rules.
- On August 1, 2019, Bar Counsel filed a formal charges disciplinary petition and served that petition on Mr. Poulin pursuant to M. Bar R. 15.
- On September 20, 2019, Mr. Poulin executed and filed an affidavit indicating that he had not been practicing law, and that he had no actual clients at the time of his administrative suspension in October of 2018.
Mr. Poulin violated Maine Bar Rule 4(k)(8) and Maine Rules of Professional Conduct 8.1(b) and 8.4(a). As a consequence of his administrative suspension, he is not currently a licensed member of the Maine Bar.
Pursuant to M. Bar R. 21(c), among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. Mr. Poulin violated his duties to the legal system by failing to complete the 2018 annual registration requirements in 2018 and by failing to file the required notification affidavit once he was administratively suspended. Ultimately, Mr. Poulin did file the affidavit as contemplated by M. Bar R. 4(K), indicating that he had not been practicing law, and that he had no clients at the time of his administrative suspension. As a result, it appears that there was no actual injury to any client, or the public resulting from Mr. Poulin’s delay in filing his affidavit.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Thomas J. Poulin, Jr. agrees that he did in fact violate the Maine Bar Rules and the Maine Rules of Professional Conduct. However, the Panel agrees that Mr. Poulin's misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Mr. Poulin. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Mr. Poulin.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Thomas J. Poulin, Jr. pursuant to M. Bar R. 13(e)(10)(B).
Date: November 25, 2019
Carolyn A. Silsby, Esq., Panel Chair
L. Dennis Carrillo, Esq., Panel Member
Tim Marks, Public Member
Board of Overseers of the Bar v. Nicole L. Gray, Esq.
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Docket No.: GCF #18-349
Issued by: Grievance Commission
Date: November 25, 2019
Respondent: Nicole L. Gray, Esq.
Bar Number: 005259
Order: Admonition
Disposition/Conduct: Safekeeping Property
M. Bar R. 13(e)(7)(D)
On November 25, 2019, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Nicole L. Gray, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on Augusta 27, 2019.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Gray was represented by Neal K. Stillman, Esq. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel’s review and consideration. The Complainant, Attorney Steven J. Mogul, was also provided with a copy of the parties’ proposed Stipulated Report in advance of the hearing.
Having reviewed the agreed proposed findings as presented by the parties, the Panel makes the following findings and disposition:
- Attorney Gray was at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Attorney Gray was admitted to the Maine bar in 2013 and she is currently in private practice in Portland, Maine.
- In May of 2016, a client retained Attorney Gray to represent him in a contested divorce proceeding which was ultimately concluded after hearing by a judgment entered on October 23, 2017.
- Post judgment, the client retained Attorney Steven J. Mogul, who contacted Attorney Gray in January of 2018, providing a signed authorization from the client and requesting a complete copy of his file.
- Attorney Mogul contacted Attorney Gray again in May of 2018 renewing his request for the client’s file.
- In June of 2018, Attorney Gray contacted Attorney Mogul through counsel, indicating that a copy of the file would be provided to him; however, when the file was not delivered, Attorney Mogul filed a complaint with the Board of Overseers of the Bar on October 1, 2018.
- Counsel for Attorney Gray had the file delivered to Attorney Mogul on October 15, 2018 after being notified of the complaint against Attorney Gray.
- Attorney Gray admits that she failed to promptly deliver her former client’s file to Attorney Mogul as she was required to do by MRPC Rule 1.15(b)(2)(iv).
Attorney Gray has explained that at the time of Attorney Mogul’s initial request for her former client’s file, she was confused by the fact that her client continued to maintain that she represented him, despite the retention of another attorney. In addition, Attorney Gray was undergoing a difficult time in her own personal life that likely caused her to underestimate the importance of complying with Attorney Mogul’s request for the client file. Nevertheless, Attorney Gray has fully acknowledged that she was remiss in not putting together her former client’s file and providing it to Attorney Mogul when it was initially requested. She has apologized to Attorney Mogul for the inconvenience caused by her delay, and stated her belief that her conduct was not characteristic of her usual or normal behavior. Finally, Attorney Gray has fully acknowledged that her failure to turn over her client’s file resulted in her violation of MRPC Rule 1.15(b)(2)(iv).
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. While Attorney Gray failed to recognize the importance of promptly delivering her client’s file to new counsel, the judgment of divorce in the case had become final prior to Attorney Mogul’s request, and there was no actual adverse effect upon the outcome of her client’s case as a result of that failure. Of note, the current complaint was brought by Attorney Mogul as the result of his being unable to obtain his client’s file, and it was not the result of any grievance filed by the actual client. Therefore, it appears that there was little or no actual injury to any client, or the public resulting from Attorney Gray’s conduct.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Attorney Gray agrees that she did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that Attorney Gray’s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Gray. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Gray.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Attorney Gray pursuant to M. Bar R. 13(e)(10)(B).
Date: November 25, 2019
Thomas H. Kelley, Esq., Panel Chair
L. Dennis Carrillo, Esq., Panel Member
Tim Marks, Public Member
Board of Overseers of the Bar v. J. D. Hoffman, Esq.
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Docket No.: GCF #18-326
Issued by: Grievance Commission
Date: December 12, 2019
Respondent: J. D. Hoffman, Esq.
Bar Number: 008365
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On November 8, 2019, with due notice, GC Panel B of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, J. D. Hoffman, Esq. This disciplinary proceeding had been commenced by the filing of a Waiver of Formal Disciplinary Petition by the Board of Overseers of the Bar (the Board) on August 19, 2019.
At the hearing, Attorney Hoffman appeared but was represented by his counsel, James M. Bowie, Esq. The Board was represented by Bar Counsel Aria Eee. Complainant Regan A. Sweeney, Esq. did attend the hearing and addressed the panel. Prior to that date, the parties negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected and the office of Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: December 12, 2019
Thomas H. Kelley, Esq., Panel Chair
Margaret D. McGaughey, Esq., Panel Member
Eric G. Doyon, Public Member
Board of Overseers of the Bar v. Hal A. Berman
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Docket No.: GCF #18-484
Issued by: Grievance Commission
Date: December 16, 2019
Respondent: Hal A. Berman
Bar Number: 005550
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate any provision of the MBR or MRPC, Prejudicial Conduct
M. Bar R. 13(e)
On November 25, 2019, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7), concerning misconduct by the Respondent, Hal A. Berman. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on August 1, 2019.
At the hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley. Mr. Berman did not appear.
Respondent Hal A. Berman of Portland, ME was, at all times prior to his administrative suspension and relevant hereto, an attorney duly admitted to practice law in the State of Maine. As such, he is subject to the Maine Rules of Professional Conduct and the Maine Bar Rules.
Effective October 16, 2018, Mr. Berman was administratively suspended by the Board pursuant to M. Bar R. 4(g)(2) due to his failure to comply with the annual registration requirement of M. Bar R. 4(a). On December 14, 2018, a sua sponte complaint was docketed and filed by Bar Counsel alleging that Mr. Berman had violated M. R. Prof. Conduct 8.4(a) and M. Bar R. 4(k)(8) based upon his failure to file the required "notification affidavit" attesting to his compliance with M. Bar R. 4(k) in light of his suspension from practice in Maine, effective October 16, 2018.
On January 4, 2019, Bar Counsel mailed to Mr. Berman a letter notifying him of his obligation to file an affidavit pursuant to M. Bar R. 4(k)(8). Mr. Berman did not respond. On March 1, 2019, Bar Counsel mailed a letter requesting comments and a response to the complaint. Mr. Berman did not respond. Mr. Berman’s failure to respond to Bar Counsel’s inquiries was in violation of M. R. of Prof. Conduct 8.1(b).
On July 2, 2019, a three-member panel of the Grievance Commission reviewed the grievance complaint and the results of Bar Counsel’s investigation, found probable cause to believe he had engaged in misconduct subject to sanction under the Maine Bar Rules, and authorized Bar Counsel to prepare and present a formal disciplinary petition, pursuant to M. Bar R. 13(e).
Accordingly, on August 1, 2019 Bar Counsel filed a formal disciplinary petition alleging that Mr. Berman had violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d). Assistant Bar Counsel Kelley stated at the November 25th hearing that Mr. Berman had been in contact with him and had promised to file the affidavit. However, Mr. Berman failed to file the affidavit, and had no further contact with Assistant Bar Counsel Kelley.
Mr. Berman did not appear at or otherwise participate in the November 25, 2019 hearing in this matter, nor did he show good cause for his failure to appear.
As of the date of the hearing, Mr. Berman remains suspended from the practice of law in Maine, and he has not addressed the administrative failures that caused his suspension to be imposed.
Mr. Berman’s failure to respond within the prescribed time to the formal disciplinary petition in this matter constitutes an admission of the factual allegations and misconduct alleged therein. M. Bar R. 13(e)(3), 20(a). Furthermore, Mr. Berman’s failure to appear at the disciplinary hearing without good cause constitutes an admission of the factual and misconduct allegations that were the subject of the hearing. M. Bar R. 20(b). For these reasons, the Panel accepts the facts and misconduct alleged in the disciplinary petition and at hearing. Specifically, the Panel finds the Mr. Berman violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d).
Having concluded that Mr. Berman violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d), the panel must issue an appropriate sanction. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The Grievance Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction, which states as follows:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Mr. Berman violated his duties to the legal system by failing to complete the annual registration requirements, by failing to file the required notification affidavit once he was administratively suspended, and by failing to respond to Bar Counsel’s inquiries in this matter. Mr. Berman’s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Respondent's continuing failure to file an affidavit complying with Maine Bar Rule 4(k)(8) is an aggravating factor.
For the above-stated reasons, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Hal A. Berman, which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(b)(5).
Date: December 16, 2019
Carolyn A. Silsby, Esq., Panel Chair
L. Dennis Carrillo, Esq., Panel Member
Tim I. Marks, Public Member
Board of Overseers of the Bar v. Daniel P. McIntyre
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Docket No.: GCF #18-458
Issued by: Grievance Commission
Date: December 16, 2019
Respondent: Daniel P. McIntyre
Bar Number: 002996
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate any provision of the MBR or MRPC, Prejudicial Conduct
M. Bar R. 13(e)
On November 25, 2019, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing, pursuant to M. Bar R. 13(e)(7), concerning misconduct by the Respondent, Daniel P. McIntyre. This disciplinary proceeding was commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on August 1, 2019.
At the hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley. Mr. McIntyre did not appear.
Respondent Daniel P. McIntyre of Westbrook, ME was, at all times prior to his administrative suspension and relevant hereto, an attorney duly admitted to practice law in the State of Maine. As such, he is subject to the Maine Rules of Professional Conduct and the Maine Bar Rules.
Effective October 16, 2018, Mr. McIntyre was administratively suspended by the Board pursuant to M. Bar R. 4(g)(2) due to his failure to comply with annual registration requirements. On December 14, 2018 a sua sponte complaint was docketed and filed by Bar Counsel alleging that Mr. McIntyre had violated M. R. Prof. Conduct 8.4(a) and M. Bar R. 4(k)(8) based upon his failure to file the required "notification affidavit" attesting to his compliance with M. Bar R. 4(k) in light of his suspension from practice in Maine, effective October 16, 2018.
On January 3, 2019 Bar Counsel mailed to Mr. McIntyre a letter notifying him of his obligation to file an affidavit pursuant to M. Bar R. 4(k)(8). Mr. McIntyre did not respond. On March 1, 2019 Bar Counsel mailed a letter requesting comments and a response to the complaint. Mr. McIntyre did not respond. Mr. McIntyre’s failure to respond to Bar Counsel’s inquiries was in violation of M. R. Prof. Conduct 8.1(b).
On July 2, 2019 a three-member Panel of the Grievance Commission reviewed the grievance complaint and the results of Bar Counsel’s investigation and found probable cause to believe he had engaged in misconduct subject to sanction under the Maine Bar Rules, and authorized Bar Counsel to prepare and present a formal disciplinary petition, pursuant to M. Bar R. 13(e).
Accordingly, on August 1, 2019 Bar Counsel filed a formal disciplinary petition alleging that Mr. McIntyre had violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d). Mr. McIntyre did not respond to the petition.
Mr. McIntyre did not appear at, or otherwise participate in, the November 25, 2019 hearing in this matter, nor did he show good cause for his failure to appear.
As of the date of the hearing, Mr. McIntyre remains suspended from the practice of law in Maine and has not addressed the administrative failures that caused his suspension to be imposed.
Mr. McIntyre’s failure to respond within the prescribed time to the formal disciplinary petition in this matter constitutes an admission of the factual allegations and misconduct alleged therein. M. Bar R. 13(e)(3) and 20(a). Furthermore, Mr. McIntyre’s failure to appear at the disciplinary hearing without good cause constitutes an admission of the factual and misconduct allegations that were the subject of the hearing. M. Bar R. 20(b). For these reasons, the Panel accepts the facts and misconduct alleged in the disciplinary petition and at hearing. Specifically, the Panel finds that Mr. McIntyre violated M. Bar R. 4(k)(8) and M. R. Prof. Conduct 8.1(b) and 8.4(a) and (d).
Having concluded that Mr. McIntyre violated M. Bar R. 4(k)(8) and M. R. Prof. Conduct 8.1(b) and 8.4(a) and (d), the Panel must issue an appropriate sanction. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The Grievance Commission relies on M. Bar R. 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction, which are as follows:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Mr. McIntyre violated his duties to the legal system by failing to complete the annual registration requirements, by failing to file the required notification affidavit once he was administratively suspended, and by failing to respond to Bar Counsel’s inquiries in this matter. Mr. McIntyre’s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Respondent’s continuing failure to file an affidavit complying with M. Bar R. 4(k)(8) is an aggravating factor.
For the above-stated reasons, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to Daniel P. McIntyre, which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(b)(5).
Date: December 16, 2019
Carolyn A. Silsby, Esq., Panel Chair
L. Dennis Carrillo, Esq.
Tim I. Marks, Public Member
Board of Overseers of the Bar v. James F. Daily III
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Docket No.: GCF #18-477
Issued by: Grievance Commission
Date: December 16, 2019
Respondent: James F. Daily III
Bar Number: 009765
Order: Reprimand
Disposition/Conduct: Registration, Bar Admission and Disciplinary Matters, Violate of Attempt to Violate any provision of the MBR or MRPC, Prejudicial Conduct
M. Bar R. 13(e)
On November 25, 2019, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to M. Bar R. 13(e)(7), concerning misconduct by the Respondent, James F. Daily III. This disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on August 1, 2019.
At the hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley. Mr. Daily did not appear.
Respondent James F. Daily III of Needham, MA was, at all times prior to his administrative suspension and relevant hereto, an attorney duly admitted to practice law in the State of Maine. As such, he is subject to the Maine Rules of Professional Conduct and the Maine Bar Rules.
Effective October 16, 2018, Mr. Daily was administratively suspended by the Board pursuant to M. Bar R. 4(g)(2) due to his failure to comply with the annual registration requirement of M. Bar R. 4(a), and the continuing legal education credit hours requirement of M. Bar R. 5(a). On December 14, 2018, a sua sponte complaint was docketed and filed by Bar Counsel alleging that Mr. Daily had violated M. R. Prof. Conduct 8.4(a) and M. Bar R. 4(k)(8) based upon his failure to file the required "notification affidavit" attesting to his compliance with M. Bar R. 4(k) in light of his suspension from practice in Maine, effective October 16, 2018.
On January 4, 2019, Bar Counsel mailed to Mr. Daily a letter notifying him of his obligation to file an affidavit pursuant to M. Bar R. 4(k)(8). Mr. Daily did not respond. On March 1, 2019, Bar Counsel mailed a letter requesting comments and a response to the complaint. Mr. Daily did not respond. Mr. Daily's failure to respond to Bar Counsels inquiries was in violation of M. R. of Prof. Conduct 8.1(b).
On July 2, 2019, a three-member panel of the Grievance Commission reviewed the grievance complaint and the results of Bar Counsel’s investigation, found probable cause to believe he had engaged in misconduct subject to sanction under the Maine Bar Rules, and authorized Bar Counsel to prepare and present a formal disciplinary petition pursuant to M. Bar R. 13(e).
Accordingly, on August 1, 2019 Bar Counsel filed a formal disciplinary petition alleging that Mr. Daily had violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d). Mr. Daily did not respond to the petition.
Mr. Daily did not appear at or otherwise participate in the November 25, 2019 hearing in this matter, nor did he show good cause for his failure to appear.
As of the date of the hearing, Mr. Daily remains suspended from the practice of law in Maine, and he has not addressed the administrative failures that caused his suspension to be imposed.
Mr. Daily’s failure to respond within the prescribed time to the formal disciplinary petition in this matter constitutes an admission of the factual allegations and misconduct alleged therein. M. Bar R. 13(e)(3) and 20(a). Furthermore, Mr. Daily’s failure to appear at the disciplinary hearing without good cause constitutes an admission of the factual and misconduct allegations that were the subject of the hearing. M. Bar R. 20(b). For these reasons, the Panel accepts the facts and misconduct alleged in the disciplinary petition and at hearing. Specifically, the Panel finds the Mr. Daily violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d).
Having concluded that Mr. Daily violated M. Bar R. 4(k)(8) and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and (d), the Panel must issue an appropriate sanction. The purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. The Grievance Commission relies on M. Bar R. 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction, which are as follows:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Mr. Daily violated his duties to the legal system by failing to complete the annual registration requirements, by failing to file the required notification affidavit once he was administratively suspended, and by failing to respond to Bar Counsel’s inquiries in this matter. Mr. Daily’s neglect caused minor injury to the legal system. The Maine Supreme Judicial Court promulgated the Maine Bar Rules and the Maine Rules of Professional Conduct to govern the practice of law by Maine attorneys. The information collected by the annual registration of lawyers facilitates the protection of the public and courts. Respondent’s continuing failure to file an affidavit complying with M. Bar R. 4(k)(8) is an aggravating factor.
For the above-stated reasons, the Panel concludes that the appropriate disposition of this case is a Public Reprimand to James F. Daily III, which is now hereby issued and imposed upon him pursuant to M. Bar R. 21(b)(5).
Date: December 16, 2019
Carolyn A. Silsby, Esq., Panel Chair
L. Dennis Carrillo, Esq., Panel Member
Tim I. Marks, Public Member
Board of Overseers of the Bar v. Christopher J. Whalley, Esq.
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Docket No.: GCF #18-452
Issued by: Grievance Commission
Date: December 18, 2019
Respondent: Christopher J. Whalley, Esq.
Bar Number: 007370
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Report Finding of Probable Cause for Filing of Information with the Court
M. Bar R. 13(e)(10)(E)
This matter was heard by Panel A of the Grievance Commission on December 18, 2019 at the Penobscot Judicial Center in Bangor, Maine. Pursuant to a Disciplinary Petition dated August 5, 2019 and proper notice being provided, a disciplinary hearing open to the public was conducted pursuant to M. Bar R. 13(e)(7)(B).
At the stipulated hearing, the Board of Overseers of the Bar was represented by Assistant Bar Counsel Alan P. Kelley. Attorney Whalley, the Respondent was present and appeared pro se. Prior to the hearing, the parties agreed to a stipulation that based upon the conduct alleged in the Disciplinary Petition, and Attorney Whalley’s prior disciplinary history, that there was probable cause for suspension pursuant to M. Bar R. 13(e)(10)(E), and that the matter should proceed by way of information before a single justice.
The Panel finds that there is probable cause for the Respondent’s suspension or disbarment and hereby directs Bar Counsel to commence an attorney disciplinary action by filing an information with the Court pursuant to M. Bar R. 13(e)(10)(E).
DATED: December 18, 2019
Jane S.E. Clayton, Esq., Panel Chair
Cynthia M. Mehnert, Esq., Panel Member
Sophia Leotsakos-Wilson, Public Member
Board of Overseers of the Bar v. Gene R. Libby, Esq.
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Docket No.: BAR-19-3
Issued by: Maine Supreme Judicial Court
Date: December 16, 2019
Respondent: Gene R. Libby, Esq.
Bar Number: 000427
Order: Order
Disposition/Conduct: Dismissal Decision Affirmed
See February 7, 2019 Report of Findings and Order
The Board of Bar Overseers has appealed from a February 7, 2019 decision by a panel of the Grievance Commission. The panel found that Attorney Gene Libby had not been proven to have engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct and therefore dismissed the disciplinary proceeding against Attorney Libby.
The disciplinary charges against Libby arose out of a divorce case in which Attorney Libby had advised his client to transfer funds from a savings account held jointly with her estranged husband into a personal checking account.
Procedural History
This proceeding began with a bar complaint filed against Attorney Libby on May 10, 2017 by Jeffrey Bennett, Esq., who was the opposing counsel in Deutsch v. Deutsch, PORDC-FM-16-457.
After the Deutsch divorce was concluded and after review by a panel of the Grievance Commission, Bar Counsel filed a petition on behalf of the Board of Overseers setting forth formal charges pursuant to M. Bar. R. 13(e) on August 20, 2018.
The petition alleged that Libby had violated various provisions of the Rules of Professional Conduct. The primary charge was based on Rule 3.4(c), which provides that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal," and specifically involved the contention that the transfer by Libby’s client violated the preliminary injunction issued at the outset of all divorce cases pursuant to 19-A M.R.S. § 903(1)(B)(1).
The petition also alleged that Libby had violated the following additional rules:
Libby filed an answer to the petition, and pursuant to M. Bar R. 13(e)(4) and 13(e)(7) a hearing was held on December 17, 2018 before a three-member panel of the Grievance Commission. The panel heard from three witnesses: Attorney Bennett as the complainant, Libby as the respondent, and Attorney Kristin Gustafson, who was called as an expert witness on Libby’s behalf. In a written closing argument submitted after the hearing, Bar Counsel raised an additional claim that Libby had billed his client for unreasonable fees in violation of M. R. Prof. Conduct 1.5(a).
The Grievance Commission panel issued its decision on February 8, 2019. Bar Counsel thereafter filed a petition for review of that decision by a Single Justice pursuant to M. Bar R. 13(f)(1). Libby did not file a motion for a trial of the facts pursuant to M. Bar R. 13(f)(3), and the parties thereafter filed briefs and appeared for oral argument on December 2, 2019.
M. Bar R. 13(f)(4) provides that the Single Justice’s review shall be based on the record of proceedings before the Grievance Commission panel and that the panel’s findings of fact shall not be set aside unless clearly erroneous.
Panel Decision and Issues on Appeal
The two major issues raised before the panel and raised in the pending petition for review are whether the action taken by Libby’s client, Ann-Charlott Deutsch (referred to in the record and in this order as Anna), constituted a transfer in violation of the preliminary injunction and if so, whether that transfer was for "necessities of life."
19-A M.R.S. § 903(1)(B)(1) provides that a preliminary injunction in every divorce case enjoins both parties
from transferring, encumbering, concealing, selling or otherwise disposing of the property of either or both of the parties, except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court.
In this case that injunction applied to Anna from the outset of the case in May 2016 and to her husband, Robert Deutsch (Robert), once the divorce summons was served upon him.
The Grievance Commission panel ultimately did not determine whether Anna’s transfer of funds from a joint savings account to her personal checking account was a "transfer" for purposes of the preliminary injunction. Grievance Commission Panel Findings and Order filed February 8, 2019 (hereafter Panel Findings) at 5. Instead, it assumed "without deciding" that Anna’s action constituted such a transfer. Id. It went on to find, however, that the transfer was to enable Anna to pay for necessities of life in the form of her legal fees and therefore that Libby’s advice did not constitute knowing disobedience of a court order in violation of Rule 3.4(b). Id. at 7.
The Grievance Commission panel also disagreed that Libby had violated Rule 1.7(a)(2). The panel did not expressly address the alleged violations of Rules 3.3(b) or 8.4 but implicitly rejected those allegations in concluding "that the Board has not proven by a preponderance of the evidence that Attorney Libby has engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct." Panel Findings at 11. The panel declined to consider the Board’s contention that Libby had violated Rule 1.5 because that had been raised for the first time in Bar Counsel’s closing argument after the hearing. Panel Findings at 10.
On this appeal the Board contends that the decision of the panel was erroneous because attorney’s fees do not qualify as necessities of life and in the alternative that the panel’s finding that the transfer here was for a necessity of life was clearly erroneous. The Board also contends that the panel should have addressed alleged violations of Rules 1.7(a)(2), 8.4(d), and 1.5 and found those violations to have been proven.1 Respondent disagrees on all points and also argues that the panel’s decision can be affirmed on the alternative ground, not reached by the panel, that Anna’s withdrawal did not constitute a transfer for purposes of the injunction.
Record Evidence
The evidence before the panel was that the divorce in this case involved a marital estate in excess of $ 2,000,000.2 Libby testified that he had reached an agreement at the beginning of the case with Robert’s first attorney, Robert Mittel, that Anna’s expenses during the divorce proceeding would be paid out of a joint checking account which Robert would fund periodically.3 For that reason, although he had filed a motion for an order of support pending divorce (referred to in the record as a "motion pending"), Libby did not initially pursue that motion.
The panel found that a certain point Robert stopped making deposits to the joint checking account, which Anna had been using to pay her legal fees and other living expenses. Panel Findings at 6. The evidence supported that finding. Libby testified that ATM withdrawals by his client had been declined on a number of occasions, and Robert testified at his deposition that he had received notices that Anna had bounced multiple checks. Respondent’s Ex. 4 (R. Deutsch Dep. 33). Among the checks that were bounced was a check to Libby’s firm for attorney’s fees.4
After unsuccessfully trying to reach some agreement with Attorney Bennett to obtain a preliminary agreement on distribution of assets or for payment of Anna’s attorney’s fees, Libby requested that the court hold a hearing on his previously filed motion pending. Board Ex. 23. The court did not set a hearing but scheduled a telephonic conference with a magistrate on March 23, 2017. The conference record states that at that conference the magistrate scheduled a further conference for April 24 to see if the parties could reach agreement on interim attorney’s fees and if by then no agreement had been reached, the court would schedule a hearing. Exhibit B to Board Ex. 3.
In the conference order, the Magistrate stated that the court hoped that the parties would choose not to incur attorney’s fees in litigating how attorney’s fees would be paid and added, "Parties have substantial marital assets that could be used to pay [attorney’s fees]; however, at present, parties cannot agree." Id.
At that point, without agreement from counsel for Robert and with the prospect that a court hearing would not be scheduled until an unspecified time in the future, Libby advised his client that she could transfer funds from a joint savings account at Bath Savings to a checking account that she maintained at the same institution in order to pay her legal fees and personal expenses. As the Grievance Commission panel found, Anna was at that time financially insecure because her husband controlled most of the marital finances and had stopped making payments to her. Panel Findings at 5. In addition, as Robert acknowledged in his deposition, the money that Anna withdrew from the joint savings account originally came from Anna’s real estate commission earnings. R. Deutsch Dep. 69 (Respondent’s Ex. 4).
Throughout all of this period Robert was paying his own attorney’s fees from his business account, to which Anna did not have access and which at all times had a balance exceeding $200,000. R. Deutsch Dep. 35 (Respondent’s Ex.4); Respondent’s Ex. 11.
Anna withdrew $77,000 from the joint savings account on March 24, 2017. The transfer was performed without the permission of her husband or the court. It was disclosed to Attorney Bennett at Anna’s deposition 10 days later.
That led to a motion for contempt filed by Attorney Bennett on behalf of Robert and to the bar complaint that is the subject of this proceeding. In the divorce case the transfer also resulted in further motion practice, including a motion filed by Bennett to compel testimony from Libby.
The only motion that was acted on by the District Court was the motion to compel testimony from Libby, which was denied on July 24, 2017. All the remaining motions remained pending until they were dismissed as moot after the stipulated divorce judgment was filed on January 2, 2018. See Board Ex. 14.
The stipulated divorce judgment split the marital estate in half, awarding property valued at $1,105,560 to each spouse. Anna received spousal support of $5,000 for five years, subject to modification pursuant to 19-A M.R.S. § 951-A(4). The checking account into which Anna had deposited the money she withdrew from the joint savings account was awarded to her as part of her marital share. Board Ex.15.
Violation of Preliminary Injunction
A threshold issue is whether Anna’s withdrawal of funds from the joint savings account was a transfer for purposes of the preliminary injunction.
The Board’s position is that 19-A M.R.S. § 903(1)(B)(1) unambiguously prohibits all transfers and would therefore apply to Anna Deutsch’s withdrawal in this case - unless it came within the exception for necessities of life (which the Board also disputes). The Board also points out that 19-A M.R.S. § 903(2)(A) allows a party to move on seven days’ notice for modification of the injunction and further provides that the district court shall proceed to hear the motion "as expeditiously as justice requires." In addition, 19-A M.R.S. § 105(1) and (2) provide that courts may, after hearing, order a party in any case under Title 19-A to pay another party’s reasonable attorney’s fees.
In response, Libby argues that a "transfer" for purposes of the preliminary injunction should be interpreted to mean a transfer that removes property from the jurisdiction of the divorce court because transferred property that remains part of the marital estate can be appropriately accounted for in the final divorce judgment. When property is transferred to a third party and ceases to be subject to the divorce court’s jurisdiction, the court may not be able to equitably divide the marital assets the situation presented in King v. King, 2013 ME 56 ¶ 21, 66 A.3d 593. Libby argues that in contrast, as long as assets remain within the marital estate as they did in this case the court can take any transfers into account and treat them, for example, as an advance distribution against the party’s share of the marital estate.
In support of Libby’s position Libby’s expert witness, Attorney Gustafson, testified that Anna’s withdrawal in this case did not violate the preliminary injunction because it did not remove assets from the marital estate and the divorce court’s jurisdiction. December 17, 2018 Hearing Transcript ("Tr.") 145, 150-51.5 She testified that asset transfers are common so long as they remain within the marital estate and that there is an expectation and practice that, if there are sufficient assets, both parties’ attorney’s fees will be paid during the pendency of the case. Tr. 148, 153-54.
Ultimately, Gustafson testified, if one party has obtained marital assets while the divorce was pending, that would be taken into account by the court in fashioning the eventual distribution of property in the divorce decree. Tr. 151, 163-65. Gustafson also stated that if there was a transfer of assets that left one of the parties without any funds which could be accessed, the divorce court could provide relief even though the transfer would not violate the preliminary injunction. Tr. 196-97.
Gustafson bolstered her opinion by what she described as the practical reality that hearings on motions for attorney’s fees in a case such as the Deutsch divorce are not likely to be scheduled promptly because District Courts handling family matters are too busy with higher priority cases. Tr. 158-60, 192. The panel approvingly noted Gustafson’s testimony on this point. Panel Findings at 8. Gustafson specifically testified that parties in divorce cases never actually get hearings on seven days notice pursuant to section 903(2)(A). Tr. 187-88.
The court has looked for but has not found any persuasive Maine authority on whether "transfers" within the meaning of 19-A M.R.S. § 903(1)(B)(1) apply to any transfer or only to transfers that remove assets from the court’s jurisdiction.
Bar Counsel cites to the Stipulated Report of Findings and Order in Board of Bar Overseers v. Van Dyke, GCF No. 14-476 (Oct. 2, 2015).6 As the panel concluded, however, the Van Dyke case is distinguishable for several reasons. First, the transfer in that case by Van Dyke’s client was into an account to which her mother had access, which meant it potentially involved a transfer of property outside of the jurisdiction of the divorce court. Van Dyke’s client had also failed to limit her spending from that account to the necessities of life. Perhaps most importantly, Van Dyke’s client also failed to disclose the existence of the account to which she had transferred the funds in question, and she falsely responded under oath to an interrogatory that requested her to identify any accounts that she possessed jointly with any other persons. The answers to interrogatories, including the falsehood, had been submitted to opposing counsel by Van Dyke’s office.7
In this case, as noted by the panel, Anna’s withdrawal did not remove the funds from the marital estate or the divorce court’s jurisdiction, she disclosed the transfer, her spending from that account did not involve any economic misconduct, and neither she nor Attorney Libby were parties to any sworn or unsworn falsehoods. Panel Findings at 5.
The Van Dyke case is also distinguishable because it was a stipulated report rather than a decision reached after litigation. In exchange for a reprimand, which might have been deserved solely based on his client’s false answer to the interrogatory, Van Dyke did not litigate the issue of whether and to what extent his client’s transfer fell afoul of the preliminary injunction.
The court ultimately concludes that "transfer" cannot be interpreted as literally as the Board suggests for several reasons. First, if the Board is correct and as Bar Counsel conceded at oral argument Robert’s payment of his own attorney’s fees from his business account would also constitute a transfer of "the property of either or both of the parties." There is no question that Robert’s business account was marital property. It makes no sense for Robert to be able to pay his attorney’s fees from an account to which Anna had no access while allowing him to restrict Anna from paying her attorney’s fees and prohibiting her from transferring funds in order to be able to pay those fees.
Second, the court is persuaded by the policy arguments advanced on Libby’s behalf and set forth in the expert testimony of Kristin Gustafson, which the Board did not controvert. If the family courts in Maine are overburdened with higher priority cases involving minor children so that hearings in low priority cases will be delayed or combined with the final hearing on the merits, it is not appropriate to give lawyers a choice between waiting for hearings that are only theoretically available or facing bar proceedings. In addition, if the Board’s interpretation were to prevail, the likely consequence would be to inflict an increased number of demands for prompt hearings on family courts that do not have the resources to satisfy those demands.
One of the major difficulties with the Board’s position on this appeal is that it appears to endorse a situation where Anna’s spouse is free to pay his legal fees and personal expenses from his business account while subjecting Attorney Libby to potential discipline for advising his client to transfer funds so that she could do likewise. Even if the Board’s position – that the appropriate action would have been to wait for a hearing so that the court could decide whether to provide relief – might make sense in an ideal world, lawyers do not practice in an ideal world.
The court acknowledges that there are countervailing arguments. If transfers from jointly held accounts to accounts to which only one spouse has access are not covered by the preliminary injunction, then – in a case where all the financial assets are jointly held – one party could transfer all of the assets to an individual account and leave the other spouse with virtually nothing while the divorce was pending. At oral argument Bar Counsel therefore argued that the preliminary injunction is designed to prevent transfers that disadvantage the other spouse, not just transfers that remove assets from the court’s jurisdiction.
The specific transfer at issue in this case, however, did not disadvantage Robert in any way. At all times he had more than enough in his business account to pay his personal expenses and his attorney’s fees and even to visit his daughter in Hawaii. Moreover, it is not necessary to apply the preliminary injunction to transfers within the marital estate in order to protect truly disadvantaged parties. If one party transfers assets in a manner that deprives the other spouse of any access to funds for living expenses or legal expenses during the divorce proceeding, judicial relief would be available in the form of an interim order of support under 19-A M.R.S. § 904(2). Otherwise the court can account for any transfers within the marital estate in fashioning the final property distribution in the divorce decree.
Accordingly, the decision of the Grievance Commission Panel that Attorney Libby did not advise his client to disobey an obligation of the rules of the divorce proceeding is affirmed on the alternative ground that the withdrawal of funds by his client did not, under the circumstances of this case, constitute a prohibited transfer for purposes of the preliminary injunction.
Necessities of Life
The Grievance Commission panel ruled that, "assuming without deciding" that Anna’s withdrawal constituted a transfer for purposes of the preliminary injunction, the withdrawal was to enable her to pay for her legal fees, which it found under the circumstances qualified as "necessities of life." Panel Findings at 7. That finding was also supported by Kristin Gustafson’s testimony – that in a divorce case involving substantial assets the retention of attorneys is essential. Tr. 191-92, 198-99. The Board argues that Anna could have waited until the end of the case to pay Libby, but the panel found that was unreasonable. Panel Findings at 9-10. Moreover, there was evidence that legal fees in a case of this nature would potentially include the retention of experts, whose fees must be paid before the case is concluded. Tr. 162-63, 218-220.
There is no Maine authority delineating the parameters of what constitute necessities of life. The court agrees with the panel decision that this is an issue to be determined on a case-by-case basis. Accordingly, although the court does not necessarily agree with some of the rhetorical flourishes in the panel’s discussion of necessities of life,8 it agrees that necessities of life have to be judged in the specific context of the case in question. The panel’s decision that Anna’s withdrawal of funds enabled Anna to pay for necessities of life in this case was not clearly erroneous.
The Board argues that the panel’s decision that attorney’s fees are a necessity of life is incorrect as a matter of law and that the remedy for a party who does not have money to pay legal fees is to seek court approval by means of a motion for attorney’s fees pursuant to 19-A M.R.S. § 105.9 The only authority that the Board cites in support of this argument is from an intermediate appellate court in Arizona. Little v. Superior Court, 884 P.2d 214, 215-16 (Ariz. Ct. of Appeals, Div. One, Dept. C). The court does not find that case to be persuasive.10 Even in cases without minor children, navigating the legal waters of divorce proceedings is an exercise that is likely to have significant financial consequences for the parties. At least in a case where the assets are not insubstantial and the other spouse is represented, having a lawyer is sufficiently important to qualify as a necessity.
The Board argues that the statutory scheme makes the court, rather than individual parties, the appropriate decisionmaker with respect to payment of counsel fees. However, the court’s understanding is consistent with Kristin Gustafson’s testimony that attorney’s fees are routinely paid by parties in divorce cases without either court approval or the consent of the opposing party. Tr. 199. Accepting the Board’s interpretation would mean that – in the absence of agreement – both spouses would need a court hearing before their attorney’s fees could be paid. This would place an additional and unnecessary burden on the family courts.
In the context of family cases in Maine, the Board’s argument ignores the practical reality outlined by Gustafson that notwithstanding the statutory availability of an order pending divorce or a hearing on attorney’s fees, it is frequently not possible – as the record demonstrates in this case – to obtain a prompt hearing on such a motion in a case which does not qualify as a priority and because the divorce court believes – as the Magistrate stated in this case – that there are sufficient assets so that the parties should be able to agree on attorney’s fees. See Exhibit B to Board Ex. 3. The panel specifically credited Gustafson’s testimony that it is impractical to assume that a hearing on attorney’s fees could be obtained in any reasonable time frame given the limited availability of hearing time in the family court. Panel Findings at 8.
The Board’s second argument is that, under the circumstances of this case, the panel’s finding that Attorney Libby counseled his client to withdraw funds from the joint savings account because she was financially insecure and needed to pay her legal fees and other personal expenses was clearly erroneous. The panel could perhaps have found, as the Board argues, that Libby’s advice was based in part on a retaliatory motive.11 However, the panel was not compelled to find against Libby on that issue.
The Board had the burden of proof, and determining the weight and credibility of the evidence and testimony was the province of the panel as the trier of fact. There was sufficient evidence to support the panel’s determination that, in a divorce with a marital estate exceeding $2 million, Anna became anxiety ridden and financially insecure when Richard began limiting payments to the joint checking account and that Libby, knowing that a court hearing would not occur until an unspecified time in the future, advised her to transfer funds so that she could pay her legal and personal expenses without having her checks bounce and her ATM card declined. The court does not find that determination to be clearly erroneous.12
Finally, for a violation of Rule 3.4(c) to be found, a lawyer must "knowingly" disobey an obligation under the rules of a tribunal. The panel decision validated Libby’s understanding that Anna’s withdrawal was permissible to pay for necessities of life. It follows that Libby did not knowingly disobey a rule of the divorce tribunal.
Accordingly, the court affirms the panel’s finding that Attorney Libby did not knowingly disobey a rule of the tribunal in violation of M.R. Prof. Conduct 3.4(c) because his advice was intended to allow Anna to pay for necessities of life.
Other Alleged Violations
The remaining issues concern the Board’s disagreement with the panel’s decision that Rule 1.7(a)(2) had not been violated, with the panel’s implicit rejection of the Board’s arguments that Libby violated Rule 8.4(d), and with the panel’s decision not to consider the Board’s late-raised claim that Libby had violated Rule 1.5.
1. Rule 1.7(a)(2) Conflict of Interest On this issue the Board renews its argument that because Libby’s advice to Anna was designed in part to allow her to pay his fees, his advice constituted a conflict of interest. The problem with this argument is that, while the Board sees this case as one where Libby circumvented a court ruling in order to have his fees paid,13 the panel instead determined that Libby recognized that he was not going to obtain a timely court ruling and that instead of waiting for such a hearing his client was entitled to withdraw funds to avoid financial insecurity and be able to pay legal expenses pending final resolution of the case. In light of the panel’s finding, there was no conflict between Libby’s interests and those of his client because they had a common interest in alleviating her financial insecurity and in allowing her to continue paying her personal and legal expenses – including any experts who might potentially be necessary – while the divorce was pending.
2. Rule 8.4(d) Conduct Prejudicial to the Administration of Justice The original petition charged Libby with violations of Rules 8.4(a), 8.4(c), and 8.4(d). Rule 8.4(a) declares that it is professional misconduct to violate any provision of Rules of Professional Conduct or the Bar Rules and therefore depends on whether the Board has proven another violation. With respect to the remaining issues under Rule 8.4, the Board has narrowed its focus on this appeal to Rule 8.4(d), which declares that it constitutes misconduct for a lawyer "to engage in conduct that is prejudicial to the administration of justice."
Typically, a finding of conduct prejudicial to the administration of justice follows from findings that a lawyer has engaged in illegal conduct or has violated the rules of professional conduct in other respects. However, the Board contends that in this case Rule 8.4(d) provides an independent basis for discipline even if the court affirms the panel’s findings that Libby did not violate any other rules of professional conduct.
The Board’s argument is based on the theory that Anna’s withdrawal of funds engendered considerable litigation – including Attorney Bennett’s motion for contempt, Bennett’s motion to depose Libby, and Libby’s oppositions to those motions – that constituted a costly sideshow and would have been unnecessary if Anna had not made the disputed transfer. This, the Board argues, was prejudicial to the administration of justice and constituted a free-standing violation of Rule 8.4(d).
The court does not agree. First, absent other bar violations, violations for conduct prejudicial to the administration of justice are properly limited to egregious, flagrant, and obvious wrongdoing. See In re Discipline of an Attorney, 815 N.E.2d 1072 (Mass. 2004). No such wrongdoing can be found in this case.
Second, if Libby’s advice to his client did not result in a violation of the preliminary injunction, as the panel found and this court has affirmed, then Attorney Bennett was more responsible than Libby for the ensuing and unnecessary motion practice that the Board contends was prejudicial to the administration of justice.
Finally, if a lawyer’s actions resulting in arguably unnecessary litigation of side issues result in a violation of Rule 8.4(d) – even when no other bar violation is involved – this principle would not simply apply to the case at bar but to every situation where a lawyer’s conduct or choice of tactics ignites a brushfire of motion practice that in retrospect does not advance the resolution of the case. However undesirable this may be, it goes beyond any reasonable conception of an ethical violation.
3. Rule 1.5 Unreasonable Fee At the hearing Bar Counsel sought to impeach Libby’s testimony by noting the fact that another attorney at Libby’s firm had included bar complaint research in several time records for the Deutsch divorce. Tr. 133-34, 137-38.14 Attorney Libby’s response was that his firm does not bill for bar complaints and that those entries had been written off. Id. The Panel found that there appeared to be a dispute as to the timing of the write-off. Panel Findings at 10.
At the conclusion of the panel hearing on December 17, 2018 the panel instructed both parties to file simultaneous post-hearing closing arguments. In its submission the Board raised for the first time that allegation that Libby had violated M.R. Prof. Conduct 1.5(a) by charging an unreasonable fee. The panel declined to consider this issue because Libby had not received any prior notice of the charge. Panel Findings at 10-11.15
The Board correctly argues that the panel and the court are not precluded from considering bar violations that are not set forth in its original complaint. See Board of Overseers v. White, 2019 ME 91 ¶ 2, 210 A.3d 168; Board of Overseers v. Lefebvre, 1998 ME 24 ¶ 14, 707 A.2d 69; Board of Overseers v. Rodway, 461 A.2d 1062, 1064 (Me. 1983). However, the limiting corollary of this principle is that it applies "absent surprise or other prejudice." Lefebvre, 1998 ME 24 ¶ 14; Rodway, 461 A.2d at 1064. In addition, due process requires that an attorney have fair notice of the bar rules alleged to have been violated. Lefebvre, 1998 ME 24 ¶¶ 14-16.
In this case counsel for Libby points out that if Libby had known that he was going to be charged with a violation of Rule 1.5(a), he would have offered evidence on that issue. Before a violation could be found, relevant evidence would have included whether the improper entries in the time records were actually charged to the client, whether and when any such charges were written off, and when Libby became aware of those entries and the charges for those entries.16
The record reflects that the billing records that form the basis for the Board’s contention that Rule 1.5(a) was violated were provided to Bar Counsel on or about December 3, 2018 – two weeks before the panel hearing. If at any point before the hearing – and perhaps even during the hearing – counsel for the Board had put Libby on notice that he was also being charged with a violation of Rule 1.5(a), counsel for Libby could have presented rebuttal evidence. Raising that claim for the first time in a post-hearing brief did not provide Libby fair notice of the claim, and the panel correctly chose to disregard that claim.
Conclusion
The decision of the Grievance Commission panel that the Board did not prove by a preponderance of the evidence that Attorney Gene R. Libby engaged in misconduct subject to sanction under the Maine Rules of Professional Conduct is affirmed.
Dated: December 16, 2019
Thomas D. Warren
Justice, Superior Court
1At oral argument Bar Counsel stated that the Board was not seeking a remand to the panel on any issues. The Board also acknowledged in its reply brief that it was no longer pursuing an alleged violation of Rule 3.3(b). Board’s Rebuttal Brief at 12. As far as the court can tell, the Board has not formally withdrawn its contention that Libby violated Rule 8.4(c) but it has not pointed to any evidence of dishonesty, fraud, deceit, or misrepresentation. Indeed, the Board bases much of its argument on Libby’s statements acknowledging that he advised his client that she should withdraw the funds in question.
2Exhibit B to the Stipulated Divorce Judgment ultimately entered on January 2, 2018 (Board Ex. 15) listed the value of the marital estate at $2,211,120.89.
3The initial case management order dated July 22, 2016 (Ex. C to Board Ex. 6) does not specifically refer to the agreement but includes a cryptic marginal notation of "joint checkbook." The existence of the agreement was disputed by Bennett, who had replaced Mittel as Robert’s attorney at some point before February 2017. However, Robert testified at his deposition on March 9, 2017 that he had been keeping up payments in the account and adding money as needed "until recently." R. Deutsch Dep. 32 (Respondent’s Ex. 4).
4The reason why Robert stopped making regular deposits in the account was disputed. Robert testified that he had not known the account was low and thought Anna could use money she would receive from trading in an Audi automobile. He said he would pay Anna’s expenses but specifically did not agree that those could include her attorney’s fees. R. Deutsch Dep. 32-34 (Respondent’s Ex. 4). Libby testified that he believed that the cessation of deposits was a tactic instigated by Attorney Bennett to pressure Anna by depriving her of funds, including funds needed to litigate the divorce, to cause her to accept a lower settlement. The Panel made no findings on that issue.
5Although the panel did not decide whether Anna’s withdrawal was a transfer for purposes of the preliminary injunction, it quoted Gustafson’s testimony on that issue. Panel Findings at 7, quoting Tr. 150-51.
6A copy of the Van Dyke order is contained in the record as Exhibit C to Board Ex. 3.
7Although Van Dyke stated that he had left the preparation of the answers to interrogatories to his secretary, he acknowledged that, as counsel, he was responsible for those answers.
8See Panel Findings at 5-6.
9Section 105 replaced section 904(1) in 2005, which resulted in some confusion at oral argument because section 905(1), although repealed in 2005, remains in vestigial form on the website of the Revisor of Statutes.
10The Little decision is also distinguishable because that case involved fairly egregious facts.
11The Board points out that when she made the withdrawal Anna had in excess of $30,000 in her personal account from which it argues that she could have paid legal fees and other personal expenses. However, that sum included $20,000 that she had received from trading in her Audi, and there is evidence that she needed to replace that vehicle. There is also evidence that she in fact used $20,000 to purchase a used BMW in May. At that point, without the money involved in the disputed transfer, her personal account would have been reduced to around $7,000. See Attachment to Board Ex. 19 (Anna Deutsch account for May 8, 2017).
The Board also argues that Anna withdrew more than she needed for necessities of life, but the panel was entitled to conclude that the amount withdrawn was intended to constitute a reserve for future legal and personal expenses. Notably, the panel found that there was no evidence that Anna did not limit her actual spending to necessities of life, Panel Findings at 5, and except for its disagreement about her payment of attorney’s fees the Board does not dispute that Anna’s spending was reasonable.
12See. e.g., Wells v. Powers, 2005 ME 62 ¶ 2, 873 A.2d 361 (a finding of fact is clearly erroneous only when there is no competent evidence to support it, when the fact finder clearly misapprehends the meaning of the evidence, or when the force and effect of the evidence, taken as a whole, rationally persuades the appellate court "to a certainty" that the finding is so against the great preponderance of the evidence that it does not represent the truth and right of the case)
13Respondent, in contrast, sees this case as one where counsel for Richard attempted to unfairly pressure Anna by withdrawing from a prior agreement of how expenses would be paid and then filing a contempt motion and a bar complaint to obtain further leverage.
14There is no dispute that attorney’s fees relating to bar complaints may not be billed to a client.
15Counsel for Libby stated at the December 2, 2019 oral argument that he had sought to file a rebuttal to this new charge, that counsel for the Board had opposed any such rebuttal, and that the Board had declined to accept any rebuttal. The record provided on appeal contains the panel’s order declining to accept any rebuttal, which references the other filings, but the other filings were not themselves included. The court does not need to seek any supplementation of the record because the record before the court is sufficient to sustain the panel’s ruling. The court agrees, however, that it would have been highly unfair for the panel to consider a new alleged violation raised for the first time in a post-hearing submission without giving Libby an opportunity to respond.
16Since the panel found that the timing of write-offs was disputed, the court could not make a finding on the Rule 1.5 issue in any event. However, Bar Counsel expressly stated that the Board is not seeking a remand to the panel.
Board of Overseers of the Bar v. John M. Whalen, Esq.
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Docket No.: BAR-17-15
Issued by: Maine Supreme Judicial Court
Date: December 19, 2019
Respondent: John M. Whalen, Esq.
Bar Number: 000827
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
M. Bar R. 32
Upon petition of Attorney Kenleigh A. Nicoletta for an order discharging her as Receiver of the law practice of John M. Whalen, Esq., a deceased attorney, the Court makes the following findings and conclusions:
- On September 1, 2017, upon petition filed by the board of Overseers of the Bar and pursuant to M. Bar R. 32, the Court appointed Attorney Kenleigh A. Nicoletta as Receiver of the law practice of John M. Whalen, for the purpose of obtaining possession of files belonging to Attorney Whalen’s clients, securing funds held in Attorney Whalen’s operating and trust accounts, obtaining Attorney Whalen’s trust account records, and protecting the interests of the clients and/or former clients of Attorney Whalen.
- Attorney Nicoletta ("Receiver"), acting in good faith, has taken all reasonable steps to fulfill her obligations as Receiver of the law practice of Attorney Whalen. She has returned or attempted to return all client files to their rightful owners. She has secured funds held in Attorney Whalen’s operating and trust accounts and has identified or attempted to identify the persons to whom those funds belong.
- The Receiver has reviewed Attorney Whalen’s clients’ files. An inventory of the client files is attached hereto as Exhibit A.
- The Receiver has distributed files to a significant number of clients and/or former clients of Attorney Whalen. The Receiver has returned, where possible, all active client files to the respective clients. A number of Attorney Whalen’s clients have not picked up their files, despite Receiver’s good faith effort to provide them notice that they should do so. Receiver now has in her possession approximately 771 client files for which she has written or otherwise provided notice to the respective clients and has received no instructions regarding the storage or return of the files. The inventory of client files attached hereto as Exhibit A details all client files that have been returned to Attorney Whalen’s clients, and all files that have not been claimed by the clients.
- Some disposition needs to be made of the remaining files of Attorney Whalen’s former clients. The Maine Board of Overseers of the Bar is the most appropriate caretaker of these remaining files and it is willing and able to execute these duties.
- The Receiver has disbursed all funds from any trust accounts held by Attorney Whalen to the appropriate persons. Orders approving said disbursements are attached hereto as Exhibits B and C.
- The Receiver has established a Receivership account into which she has deposited receivables due to Attorney Whalen collected after her appointment. After the payment of funds due to former clients of Attorney Whalen’s, the amount remaining in said Receivership account is $2,509.03.
- The Receiver has submitted a summary of the time and expenses incurred in serving as Receiver of the law practice of Attorney Whalen. A summary of her time and the time of office staff of Brann & Isaacson, as well as expenses, is attached hereto as Exhibit D. In carrying out her duties as Receiver, the Receiver and/or Receiver’s law firm, Brann & Isaacson, has provided services and incurred expenses with a reasonable value of $89,714.18.
Based upon these findings of fact, the Court makes the following:
- The Court has jurisdiction of this matter pursuant to M. Bar R. 32 (c).
- Attorney Kenleigh A. Nicoletta has taken all reasonable steps to discharge her obligations as Receiver of the law practice of John M. Whalen, Esq., to return all client files, and to disburse all funds in Attorney Whalen’s operating and trust accounts.
- The Receiver’s law firm, Brann & Isaacson, is entitled to partial reimbursement for the services rendered by Receiver and her office staff and for expenses incurred while Receiver was serving as Receiver of John M. Whalen, Esq.’s law practice in the amount of $2,509.03, the amount currently remaining in the Receivership bank account established by the Receiver.
- The Maine Board of Overseers of the Bar is authorized to maintain in storage at its offices of the Board in Augusta and/or such other secure locations as determined by the Board those client files that have not yet been retrieved by the clients of Attorney Whalen.
THEREFORE, pursuant to Maine Bar Rule 32(c), it is ORDERED as follows:
- Attorney Kenleigh A. Nicoletta is discharged as Receiver of the law practice of John M. Whalen, Esq.
- The Maine Board of Overseers of the Bar is authorized to maintain in storage at its offices in Augusta and/or such other secure locations as determined by the Board those client files that have not been retrieved by the clients of John M. Whalen, Esq.
- Receiver’s law firm, Brann & Isaacson, is entitled to reasonable compensation for the services of office staff and of Attorney Nicoletta as Receiver for the law practice of John M. Whalen, Esq. and reimbursement for expenses incurred by Receiver in the amount of $2,509.03. Upon entry of this Order, Receiver shall pay said compensation and expenses from the Receivership account and shall thereafter close said account.
The Clerk is directed to incorporate this Order on the docket by reference.
Dated: December 19, 2019
Ellen A. Gorman
Associate Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. In Re Elizabeth L. Bancroft
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Docket No.: BAR-19-9
Issued by: Maine Supreme Judicial Court
Date: December 23, 2019
Respondent: Elizabeth L. Bancroft
Bar Number: 009947
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
M. Bar R. (j); 29
Elizabeth L. Bancroft has petitioned for reinstatement to Maine bar. Pursuant to M. Bar R. 4(j) and 29(f)(l), Bar Counsel has stipulated to Ms. Bancroft’s reinstatement, subject to the Court’s approval.
The Court has reviewed Ms. Bancroft’s Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Elizabeth L. Bancroft, Bar #009947, is hereby reinstated to the Maine bar with all the rights and responsibilities hereto.
Dated: December 23, 2019
District Court Judge Daniel Driscoll
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Robert M.A. Nadeau
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Docket No.: GCF #19-192
Issued by: Grievance Commission
Date: February 14, 2020
Respondent: Robert M.A. Nadeau
Bar Number: 007460
Order: Reinstatement Not Recommended
Disposition/Conduct: Reinstatement Not Recommended
On or about September 17, 2019, Petitioner Robert M.A. Nadeau (hereinafter, "Petitioner"), who is pro se, petitioned the Supreme Judicial Court for reinstatement of his license to practice law, pursuant to M. Bar R. 29. The Board of Overseers of the Bar ("the Board"), who is represented by Special Bar Counsel Justin W. Andrus ("Bar Counsel"), opposed his petition in a timely manner, pursuant to Maine Bar R. 29(f). Accordingly, the matter was referred to Panel D of the Grievance Commission for hearing, pursuant to M. Bar R. 29(g). Panel D is comprised of Carolyn A. Silsby, Esq., Sophia Leotsakos-Wilson, and Teresa M. Cloutier, Esq., the Panel Chair. The parties had no objections to the composition of the Panel.
A hearing before Panel D was duly noticed for February 3, 2019, to continue to February 4, 2019 if more time was needed. The Panel conducted a hearing on February 3, 2020. Bar Counsel was present for the Board, but Petitioner did not appear.
On Saturday, February 1, 2020 at 8:19 p.m., Petitioner sent an email to Bar Counsel, with a courtesy copy to the Board Clerk. That email stated:
After consultation with my wife and family who share my dismay and disappointment regarding your office’s position concerning the above matter, and in light of my attainment of my 65th birthday in the ensuing week, we have decided that resuming status as a Maine attorney where I have served thousands of grateful, supportive families and other clients from both sides of the bench with distinction, is no longer a worthwhile endeavor.
Accordingly, you may consider my petition for reinstatement to have been withdrawn by me, notwithstanding its merits, and you should report that the hearing scheduled for Monday shall be deemed canceled. You may also prepare and file an assented-to motion to dismiss my petition without prejudice, noting its withdrawal by me, provided that you will first run your draft by me for my review and approval.
Hearing Exhibit Z.
The Board Clerk acknowledged receipt of Petitioner’s email mid-afternoon on Sunday, February 2, 2020. She informed him and Bar Counsel that she was seeking guidance from the Panel Chair, but that she may not receive a response as it was a weekend. She cautioned Petitioner and Bar Counsel that they should plan to attend the scheduled hearing.
Petitioner replied:
As I have no further interest in this matter, there is no point in my travel and appearance tomorrow. I, my mother who was otherwise prepared to travel tomorrow morning with me, and my wife who was prepared to call in to testify at 12 noon regarding me and what she personally observed and knows about Judge Fahey’s, Ms. Madore-Pratt’s, and Carol Lovejoy’s behaviors which Mr. Andrus appears unable to put in perspective, do believe very, very strongly that I am most suitable to resume being a Maine attorney.... [W]e also know that this already extended process (4 months and counting of additional suspension punishment beyond my 2-year suspension which otherwise should have expired as of October 1, 2019) will continue to meet resistance by Mr. Andrus that would apparently not end with a panel hearing if it were in any way to be favorable to me but, instead, would otherwise require further challenges to and reviews by a single justice and thereafter by the full Law Court, plus additional distress, disappointment and expenditures of time by me, that render the process no longer worth my time and interest. Life is simply too short for me to need to subject my family and me to what appears to be a puzzling but forgone conclusion exacerbating the sadness they have seen me experienced for almost 3 years now.
Accordingly, my petition is simply withdrawn. Meaning no disrespect to your office or Mr. Andrus, and certainly no disrespect to the panel members, I will not be attending the hearing and I will not be getting my mother up at 6 AM tomorrow to prepare to drive up to Augusta despite her willingness to do so....
I can file a Notice of Withdrawal of Petition for Reinstatement with the Law Court if necessary.
Id.
In response to statements by Bar Counsel and the Clerk that the hearing would still be held, Petitioner stated:
You [Bar Counsel] live near there, and you’re being paid to carry-on. Neither is the case for me.
[A] notice of hearing is not an order to appear pursuant to a [sic] a right the Law Court affords to former Maine attorneys seeking reinstatement. The notice is only an opportunity to appear for which a default may be noted by the panel in the absence of my physical appearance. I have incidentally stated that I can be available by phone at the appointed time if the panel has any questions regarding the withdrawal, although there appears to be no need for even that under the circumstances. .. The fact of my withdrawal may be reported by the panel in my absence accordingly. I see no need or reason for me to travel to Augusta under such circumstances, as there is nothing more to accomplish. I'm not a Maine attorney, and I no longer have an interest in being one, given this experience.
Id. (emphasis added).
Panel D convened for the public hearing on the morning of February 3, 2020. Bar Counsel was in attendance for the Board. Petitioner did not appear. The emails between Petitioner, the Board Clerk and Bar Counsel were made part of the record as Hearing Exhibit Z. Bar Counsel offered no other evidence.
Bar Counsel requested a substantive default, arguing that Petitioner could not unilaterally withdraw his petition at this point or submit a notice of dismissal without prejudice. He further argued that any disposition of this matter should have the same effect as an adverse judgment, with the resulting prohibition against reapplying for reinstatement set forth in M. Bar R. 29(h).
The Panel finds that Petitioner Robert M.A. Nadeau knowingly failed to appear at the hearing that was held on February 3, 2020 on his petition for reinstatement. It expressly rejects Petitioners initial suggestion that he should be permitted, unilaterally, to withdraw his petition without prejudice at this point. The Panel finds no basis in the relevant rules that would permit that.
The Panel recommends that the Court default Petitioner for his failure to appear in this matter, and order that he cannot reapply for reinstatement for at least one year from the date of its order, pursuant to M. Bar R. 29(h). In the alternative, should the Court decide to allow Petitioner to dismiss his Petition for Reinstatement, the Panel recommends that such a dismissal be with prejudice and have the same effect as an adverse judgment against him, pursuant to M. Bar R. 29(h).
Date: February 14, 2020
Teresa M. Cloutier, Esq., Panel Chair
Carolyn A. Silsby, Esq., Panel Member
Sophia Leotsakos-Wilson, Public Member
Board of Overseers of the Bar v. Steven A. Juskewitch, Esq.
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Docket No.: GCF #18-433
Issued by: Grievance Commission
Date: April 1, 2020
Respondent: Steven A. Juskewitch, Esq.
Bar Number: 000272
Order: Admonition Probation
Disposition/Conduct: Communication, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)
On March 27, 2020 with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing by telephone pursuant to Maine Bar Rule 13(e) and the Emergency Order and Notice issued by the Maine Supreme Judicial Court on March 13, 2020, concerning misconduct by the Respondent, Steven A. Juskewitch, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the filing of a negotiated, stipulated Disciplinary Petition.
At the March 27 hearing, Attorney Juskewitch was represented by James M. Bowie, Esq., and the Board was represented by Bar Counsel, Aria Eee. The Clerk provided complainant, Richard F. Eckendorff, with notice of this action and he appeared and participated telephonically.
Prior to the scheduled hearing date, the parties notified the Commission that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advance review and consideration. Bar Counsel provided Mr. Eckendorff with a copy of the parties’ proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following disposition:
Respondent Steven A. Juskewitch, Esq. (Juskewitch) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, Juskewitch is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R.P.C.). Juskewitch was admitted to the Maine Bar in 1976 and is currently a solo practitioner in Ellsworth, Me.
According to the parties’ stipulations, the Commission finds the following relevant facts:
On December 8, 2018, Richard Eckendorff filed a complaint against Attorney Juskewitch, based upon Juskewitch’s prior representation of Eckendorff. Within his complaint, Eckendorff alleged that Juskewitch threatened him with physical harm, causing Eckendorff to feel fearful and intimidated by his attorney. Eckendorff reported that the threats occurred over the span of four months during the representation. On at least two of the occasions when Juskewitch made the aggressive statements, there was another person present. Eckendorff did not discharge Juskewitch as his counsel. Mr. Juskewitch withdrew from representation after the court granted his motion to withdraw. Sometime thereafter, Eckendorff filed his grievance complaint, which followed his receipt of Juskewitch’s final bill. Eckendorff also complained to the local police but Juskewitch was not charged with a crime.
Juskewitch filed a timely response to the complaint, denying any professional misconduct. Instead, Juskewitch explained that while he did make statements such as "I'm going to strangle you," he did so in frustration with Eckendorff’s lack of focus, not as an intended threat toward his client. Juskewitch averred that his relationship with Eckendorff was a difficult one to manage and his statements were meant to focus the client on preparing for his anticipated testimony. With the passage of time, Juskewitch now agrees that his treatment of Eckendorff fell short of that which is ethically required of attorneys. He has expressed regret for acting in that manner toward Eckendorff.
Even though Juskewitch did not intend to convey a threat to his client, the Commission finds that his actions toward Eckendorff were violative of M.R.P.C. 1.4(a) [communication] and 8.4(d) [conduct prejudicial to the administration of justice].
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Juskewitch agrees that he violated his duties to comply with those Rules.
The Commission notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Juskewitch agrees that he did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Juskewitch agrees that his misconduct violated duties that he owed to his client and to the profession. After considering Juskewitch’s statements arising from the hearing, the Commission does not find that he acted with the intent to harm Eckendorff. Given the totality of circumstances, Eckendorff suffered nominal harm that the Commission finds did not rise to the level of serious misconduct. The Commission does find that Juskewitch displayed poor judgment in resorting to threatening language as a means to communicate with his client. The Commission expects that Juskewitch will learn from this lapse in judgment and refrain from engaging in similar misconduct with his future representation of clients.
Regarding aggravating factors, Juskewitch has received prior discipline/sanctions and he has substantial experience in the practice of law. In mitigation, Juskewitch has admitted his misconduct, has expressed remorse for that misconduct, and has been cooperative throughout the investigation and prosecution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that an Admonition and Probation are appropriate sanctions to address the misconduct by Attorney Juskewitch. The parties shall mutually agree upon the Probation terms, but at a minimum, Probation shall continue for one year, and Mr. Juskewitch will consult with an agreed upon person or persons experienced in the proper management of client relations/communications and anger management. The parties have further agreed that the Probation terms shall be maintained within Bar Counsel’s file, and she shall notify the Commission Clerk upon Juskewitch’s successful completion of the period of Probation. With these consented-to-conditions, the Commission accepts the agreement of the parties, including Attorney Juskewitch’s separately executed waiver of the right to file for a Petition for Review.
Pursuant to M. Bar R. 13, the Commission hereby imposes an Admonition and one year of Probation upon Steven A. Juskewitch, Esq.
Date: April 1, 2020
John J. Aromando, Esq., Panel Chair
Peter B. Bickerman, Esq., Panel Member
Malcolm T. Dow, Public Member
Board of Overseers of the Bar v. Richard L. Rhoda, Esq.
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Docket No.: GCF #19-089
Issued by: Grievance Commission
Date: April 6, 2020
Respondent: Richard L. Rhoda, Esq.
Bar Number: 000124
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On March 27, 2020, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, Richard L. Rhoda, Esq. This disciplinary proceeding had been commenced by the filing of a Stipulated Formal Charges Petition by the Board of Overseers of the Bar (the Board) on October 11, 2019.
This hearing was conducted telephonically pursuant to the Supreme Judicial Court’s Order of March 13, 2020 and by agreement of the parties. At the telephonic hearing, Attorney Rhoda appeared and represented himself. The Board was represented by Bar Counsel Aria Eee. The Complainant did not attend the hearing but was provided with a copy of the proposed order in advance of the hearing and submitted a letter for the Panel’s consideration. Prior to the hearing date, the parties negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected. The office of Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and at a later date, the parties will receive advance notice of the time and place of the hearing.
Date: April 6, 2020
L. Dennis Carrillo, Esq., Panel Chair
Peter B. Bickerman, Esq., Panel Member
Milton R. Wright, Public Member
Board of Overseers of the Bar v. Robert M.A. Nadeau
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Docket No.: BAR-19-7
Issued by: Maine Supreme Judicial Court
Date: April 27, 2020
Respondent: Robert M.A. Nadeau
Bar Number: 007460
Order: Order
Disposition/Conduct: Reinstatement Petition Denied
This matter is before the court pursuant to Me. Bar R. 29 on Mr. Nadeau’s petition for reinstatement of his license to practice law in the State of Maine. For the reasons stated below, the petition is denied.
Petitioner Robert M.A. Nadeau was suspended for two years by order of the Court dated June 20, 2017; commencement of the suspension was later stayed until October 1, 2017. On September 17, 2019, Mr. Nadeau petitioned the Court for reinstatement of his license to practice law. The petition was opposed by the Board of Overseers of the Bar, and the matter was set for hearing on Monday, February 3, 2020 in front of a panel of the Grievance Commission pursuant to Me. Bar R. 29(g).
Over the weekend before the hearing, Petitioner purported to withdraw his petition for reinstatement, a move to which the Board objected. Petitioner was notified that the hearing would go forward on February 3. Petitioner stated he would not appear, acknowledging that the matter would proceed by default. On February 3, 2020, Petitioner did not appear for the hearing, and the matter proceeded by default.
On February 4, 2020, Petitioner filed a "Notice of Withdrawal" of his Petition for Reinstatement with the Court. The Board again objected to the withdrawal of the petition without any consequence.
On February 14, 2020, Panel D of the Grievance Commission issued its Report following the default hearing held on February 3, 2020. The Panel specifically recommended as follows:
The Panel recommends that the Court default Petitioner for his failure to appear in this matter, and order that he cannot apply for reinstatement for at least one year from the date of its order, pursuant to M. Bar R. 29(h). In the alternative, should the Court decide to allow Petitioner to dismiss his Petition for Reinstatement, the Panel recommends that such a dismissal be with prejudice and have the same effect as an adverse judgment against him, pursuant to M. Bar R. 29(h).
Neither party has filed any objection to the panel’s report. Pursuant to Me. Bar R. 29(h), this matter is now in order for the decision of the Court, which may be issued without hearing.
The first question is the effect of Petitioner’s "Notice of Withdrawal" of the petition for reinstatement filed with this Court after the Grievance Panel hearing. To permit withdrawal of a reinstatement petition after the Grievance Panel hearing would allow every petitioner to avoid an adverse result. Instead, Rule 29(h) provides that the Court "shall review" the report, and "shall, with or without hearing issue its decision." There is no provision in the Bar Rules to withdraw a reinstatement petition at this stage; the "Notice" has no effect, and the Court shall issue its decision.
Upon review of the panel report and all other materials submitted, the petition for reinstatement of Robert M.A. Nadeau is denied. Petitioner has failed to demonstrate by clear and convincing evidence that he has met each of the criteria set forth in Me. Bar R. 29(e) or that there is good and sufficient reason why he should nevertheless be reinstated. Petitioner may not reapply for reinstatement for at least one year following the date of this judgment.
This order may be incorporated on the docket of the case by reference.
Dated: April 27, 2020
Justice Valerie Stanfill, Maine Superior Court
Associate Justice by designation
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Jonathan C. Hull
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Docket No.: BAR-18-10
Issued by: Maine Supreme Judicial Court
Date: June 10, 2020
Respondent: Jonathan C. Hull
Bar Number: 001584
Order: Disbarment
Disposition/Conduct: Conflict of Interest, Truthfulness in Statements to Others, Misconduct, illegal conduct, fraud, deceit or dishonesty, Diligence, Conduct Prejudicial to the Administration of Justice, Fees
As a result of the Board of Overseers of the Bar’s (the Board) filing of its Petition for Immediate Interim Suspension, this Court issued an August 23, 2018 Order suspending former attorney Jonathan C. Hull (Hull). Through its subsequent filing of a Disciplinary Information, the Board commenced further disciplinary action. Thereafter, the Board filed amended pleadings which alleged additional misconduct by Hull.
Prior to hearing in this matter, the parties notified the Court that they had reached agreement as to findings and a stipulated sanction. Appearing at the June 10, 2020 final hearing were Jonathan Hull, Aria Eee, Bar Counsel and James Mason, Attorney for Jonathan C. Hull.
Having reviewed the pleadings and the parties’ stipulations, the Court finds as follows: Jonathan C. Hull of Newcastle, Maine, was at all times relevant hereto, an attorney duly admitted to and engaging in the practice of law in Maine. As such, Hull was subject to the Maine Bar Rules and the Maine Rules of Professional Conduct. Hull was admitted to the Maine Bar in 1974 and prior to his 2018 Interim Suspension, had engaged in solo private practice in Damariscotta, Maine.
In August 2018, Bar Counsel became aware of Hull’s alleged conversion of approximately $26,750.00 from two non-profit entities, hereinafter referred to as "CP" and "ST." Bar Counsel’s office commenced an investigation and obtained Damariscotta Police Officer Erick Halpin’s August 8, 2018 Affidavit and Request for Arrest Warrant concerning Hull. Officer Halpin’s Affidavit detailed incidences of illegal conduct by Hull. In response to the Board’s subsequent allegations concerning those same events, Hull offered minimal dispute and explanation. Accordingly, the Court finds as follows:
a. CP is a non-profit entity, established to fund a student exchange program between Bath, Maine, and Tsugaru City, Japan;
b. CP has a non-profit checking account with the Bath Savings Institution;
c. The acting president of CP is Elizabeth Hartung;
d. For the period of time at issue, the only two Board-elected signatories for CP’s checking account were Jonathan Hull and Anita Mantais-Lyons;
e. Hull had been involved with CP for many years, but only served as its Treasurer from June 8, 2016, until his resignation on May 24, 2018;
f. At the beginning of 2018, Hartung had requested financial reports from Hull, but he failed to present or provide those reports. Hull also failed to attend CP’s monthly meetings;
g. On or about May 14, 2018, Hull telephoned Hartung and apologized to her, stating that he "had taken money out of the (CP) account and that he would repay it the following week;"
h. Hartung then immediately contacted Mantais-Lyons who reported to her that Hull had made a similar admission and promise to her;
i. Hull failed to make any refund in May as he promised to do;
j. Hartung then emailed Hull requesting that he repay all converted monies to CP by May 30, 2018;
k. Hull replied that he would "need more time" to make the complete repayment to the CP checking account;
l. On May 30, 2018, Hartung reviewed CP’s financial records at Bath Savings Institution. Hartung found copies of checks that Hull had written to himself with certain unidentifiable deposits, beginning in February 2017, totaling at least $7,000.00;
m. On June 1, 2018, Hull sent an email to Hartung stating that he had repaid $500.00 to the CP checking account, but "would need more time to pay the rest;"
n. On June 12, 2018, Hartung provided Officer Halpin with CP’s monthly bank records from January 2016 through May 2018;
o. From Officer Halpin’s review thereof, he found twenty-eight withdrawals from the CP banking account that had been either credited to the banking account(s) of Hull or presented to him as cash;
p. Hartung reported to Officer Halpin that all of Hull’s withdrawals were unauthorized;
q. A review of the twenty-eight individual check amounts along with other information contained in Officer Halpin’s Affidavit confirmed several facts. Those facts included the following:
- each of the checks was in an even dollar amount;
- the combined dollar amount of the checks was $24,750;
- all but two of the twenty-eight checks were credited to one or more bank accounts belonging to Hull;
- of the twenty-eight checks, nineteen were presented by Hull for deposit into one of his accounts at Damariscotta Bank & Trust;
- the remaining seven checks were presented by Hull for deposit into his account at Bath Savings Institution; and
- two of the checks were presented by and endorsed by Hull for cash at one of the above financial institutions.
r. In addition to the twenty-eight check withdrawals between January 2016 and May 2018, Hull made three deposits into CP’s account;
s. Two of those deposits were drawn from one of Hull’s accounts at Damariscotta Bank & Trust, and one was drawn from the First National Bank account of the non-profit "ST;"
t. ST was established to assist at-risk youth, and Hull had served for a time as its Treasurer;
u. CP had previously received grant funds from ST, prior to ST’s dissolution;
v. Hull did not record any of his withdrawals, or subsequent deposits, in CP’s financial records;
w. On May 24, 2018, Hartung removed Hull as an authorized signatory on CP’s bank accounts;
x. Between June and July 2018, Hull made five deposits from his personal accounts into CP’s accounts, totaling $6,000;
y. Overall, Hull made unauthorized withdrawals from CP’s accounts totaling $24,750.00. He subsequently deposited from his client trust account, office operating account, and/or personal accounts a total of $25,250.00 to CP’s account.
z. During the relevant time period, Hull also distributed $10,000.00 from ST’s bank account to CP’s bank account, which Hull reports was duly authorized by the Board of ST as part of its charitable distribution program.
Based on the facts set forth within the above paragraphs, the Court finds that Hull engaged in violations of M. R. Prof. Conduct 1.7(a)(2) [conflict of interest]; 4.1(a) [truthfulness in statements to others]; and 8.4(a)(b)(c) [misconduct; illegal conduct; fraud, deceit or dishonesty].
On February 21, 2018, Martha L. Hills of Swoope, Virginia filed a grievance complaint with the Board. Hull filed his initial response on March 2, 2018, followed by supplemental responses in May 2018.
Relevant to the complaint are the circumstances leading up to Hills’s interaction with Hull. In May 2017, Ms. Hills visited Hull at his law office and then authorized a $1,000.00 charge on her credit card intended as a single payment toward Hull’s representation of Chad Nickerson (Hills’s son) in a family matter action. Hull did not prepare a written fee agreement with her, but had prepared one for the client, Chad Nickerson. Several months later (February 2018), Hull improperly charged an additional $3,480.88 on Ms. Hills’s credit card to be applied towards the fees in Hull’s representation of Mr. Nickerson. When contacted by Ms. Hills later that day objecting to that charge, Hull immediately reversed the charge before receiving any funds. In making that credit card charge, Hull committed a violation of MRPC 8.4(c) [fraudulent conduct] by not requesting Ms. Hills’ authorization to incur the $3,480.88 charge.
Beyond that incident, Hull also failed to attend a court hearing dealing with Nickerson’s custody matter. His failure constituted a violation of M. R. Prof. Conduct 1.3 [diligence] and 8.4(d) [conduct prejudicial to the administration of justice].
As referenced within Count I, during the time period from June 23, 2014, through May 31, 2018, Hull misappropriated funds from a second nonprofit, "ST." Four members of the ST Board of Directors filed a letter with Bar Counsel’s office on September 17, 2018, alleging Hull’s conversion of funds from ST. The Directors’ letter included a listing of thirty-seven checks drawn from ST’s account at the First National Bank. Each of those checks were payable to Hull from June 2014 through May 31, 2018.
Hull misappropriated approximately $47,000 of ST’s funds. As a result, the non-profit filed a claim with the Lawyer’s Fund for Client Protection (LFCP) to address the conversion by Hull. Taking into account Hull’s initial repayments, the amount of ST’s Lawyer’s Fund claim was $26,450, representing the funds ST then believed had not been re-paid by Hull. In April and August 2018, Hull made payments repaying the remaining funds he converted, overpaying ST in the amount of $815.00. Following its consideration of the supplemental information provided by counsel for ST and Hull, the Trustees agreed with the parties’ request to dismiss ST’s claim for LFCP reimbursement.
Nevertheless, the Court finds that Hull’s serious conduct violated M. R. Prof. Conduct Rules 1.7(a)(2) [conflict of interest]; 4.1(a) [truthfulness in statements to others]; and 8.4(a)(b)(c) [illegal conduct, fraud, deceit or dishonesty].
Based upon Hull’s acknowledgment at this hearing, the Court finds that he removed and converted various amounts of money while serving as a fiduciary for these non-profit entities. The Court is aware that because of Hull’s misconduct and the Court’s action in suspending him from the practice of law, various claimants have sought redress through the Lawyers’ Fund for Client Protection (LFCP). Hull generally did not dispute those claims. He also reports that he does not have the funds to fully reimburse the claimants or the LFCP. The LFCP and Hull have reached an agreement to resolve all pending claims filed to date. In total, the LFCP has paid $30,389.09 towards reimbursement of claims arising out of Hull’s misconduct.
In May 2008, Mr. Hull was serving as Personal Representative (PR) of the Estate of Wayne Plummer. Years later, information from the Estate bank account revealed that from 2009-2010, Hull withdrew approximately $47,300 from Estate funds without explanation. Hull did so by issuing checks from the Estate account payable to himself. Sometime in 2010, Hull started to incrementally repay the Estate but there was still an outstanding balance of funds not repaid.
The parties were unable to agree on an amount that Hull failed to earn from his fiduciary service to the Plummer Estate. However, following its consideration of the claim the Estate filed against Hull, the Lawyer’s Fund for Client Protection (LFCP) issued an $18,500 award responsive to Hull’s misconduct, the amount sought by the Plummer Estate but objected to by Hull. The Attorney General’s office investigated the circumstances related to Hull’s service for the Estate but did not criminally charge Hull. The Board understands that such prosecution did not occur because the AAG reported to Bar Counsel that Hull’s prosecution was barred by the statute of limitations.
Based upon a totality of these circumstances, the Court finds that Hull violated M. R. Prof. Conduct 1.5(a) [fees]; and 8.4(a)(b)(c)(d) [misconduct; illegal conduct; fraud, deceit or dishonesty; and conduct prejudicial to the administration of justice].
The Court is aware that as a result of Hull’s professional misconduct, the affected parties have filed or will be filing claims with the Lawyers’ Fund for Client Protection (LFCP). Thus far, Hull has responded to all filed claims, though he reports a lack of sufficient funds to fully reimburse the claimants or the LFCP.
Following the Board’s subsequent request, the Court issued an Order that required Hull to disclose the entirety of his assets. During that disclosure period, Hull’s office building underwent a contract for sale. After the Board learned of the pending transaction, it sought and received from the Lincoln County Superior Court an attachment on the sale proceeds. Hull and the LFCP have reached an agreement to resolve all pending claims filed to date and to dismiss the attachment action. As a result, there is no further action required by this Court regarding claims previously paid by the LFCP.
M. Bar R. 21(c) delineates the grounds for lawyer discipline, the range of sanctions which may be imposed for professional misconduct, and the factors that the Court must consider prior to imposing any such discipline.
M. Bar R. 21(c) states:
Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
- "whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
- whether the lawyer acted intentionally, knowingly, or negligently;
- the amount of the actual or potential injury caused by the lawyer’s misconduct; and
- the existence of any aggravating or mitigating factors."
The ABA Standards for Imposing Lawyer Discipline (ABA Standards) define the purposes of lawyer disciplinary proceedings, the public nature of those proceedings, and the purpose of the Standards themselves. The ABA Standards are designed to promote:
- consideration of all factors relevant to imposing the appropriate level of sanction in an individual case;
- consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline;
- consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions. Standard 1.3, ABA Standards for Imposing Lawyer Sanctions.
In a 2018 appellate decision, a six-member panel of the Maine Law Court was evenly divided on the issue of whether M. Bar R. 21(c) incorporates the ABA Standards as a "matter of law."1 Although there was some disagreement among the Court over the precise import of the ABA Standards, at a minimum, the Court concluded that an adjudicator should consult those Standards as guidance in making its determination of appropriate sanctions.
M. Bar R. 21(c) is identical to ABA Standard 3.0. That Standard mandates the court’s consideration of "(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating and mitigating factors." In applying the ABA Standards, intentional acts of misconduct require the imposition of more significant sanctions than misconduct which results from a lawyer’s negligence. Likewise, the amount of injury, or potential injury, to a client, the public, the legal system, or the profession is a significant factor. Generally, the sanction of disbarment appears to be reserved for intentional acts of misconduct, or misconduct which results in significant injury, or a combination of both.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the duty that Hull violated in committing professional misconduct. In each instance, Hull’s behavior demonstrated violations of fiduciary duties owed to the entities he served. In addition, Hull violated duties that he owed as an officer of the court, duties to the public, and to his profession.
The Court is aware that Hull remains subject to pending criminal charges resulting from the conduct described herein. Those criminal charges have not yet been adjudicated, although counsel for Hull has indicated that it is likely that Hull and the prosecution will resolve the criminal case by agreement.
The correlating ABA Standard for the rules concerning clients and their property is 4.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
4.1 Failure to Preserve Client’s Property
4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
The correlating ABA Standard for the rules concerning unlawful conduct is 5.0. As detailed below, the Court finds the ABA Standard to be both relevant and applicable.
5.1 Failure to Maintain Personal Integrity
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice...fraud, extortion, misappropriation, or theftor an attemptto commit any of these offenses.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has also considered Hull’s mental state in committing the various acts of professional misconduct. Counsel for Hull reports that Hull carries a diagnosis of post-traumatic stress disorder, originally stemming from his military service in Vietnam. During the relevant periods of this matter, Hull suffered from both significant depression and anxiety. While he has been under medical care for diabetes, high blood pressure and a sleep disorder, he was diagnosed in 2018 for PTSD.
Based upon the Court’s findings and Hull’s general agreement with those findings, the Court concludes that his actions were intentional in nature.
Pursuant to M. Bar R. 21(c) and the ABA Standards, the Court has considered the actual and or potential injury resulting from Hull’s misconduct. As noted above, in each of the four counts, there was serious and intentional misconduct that exacted financial injury to the various entities, even though the above-named entities were repaid. There was also emotional injury to the Plummer family resulting from Hull’s misconduct during his service as personal representative.
Pursuant to M. Bar R. 21(c) and ABA Standards 9.2 and 9.3, the Court has considered the applicable aggravating and mitigating factors. While the correlating ABA Standards themselves warrant Hull’s disbarment, the following aggravating factors are also implicated:
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(i) substantial experience in the practice of law; and
(k) illegal conduct
In addition to the aggravating factors, there appears to be mitigating factors for the Court’s consideration. Those factors are:
(c) personal or emotional problems
(h) physical disability
(k) imposition of other penalties or sanctions
(l) remorse
As is evident, the aggravating factors enumerated herein outweigh the mitigating factors. Recognizing the serious harm resulting from Hull’s misconduct, this Court concludes that the appropriate sanction to impose is a multi-year disbarment. Hull acknowledges that his actions warrant the Court’s imposition of such a sanction.
Accordingly, and consistent with the parties’ agreement, the Court hereby Orders that Jonathan C. Hull is disbarred for a period of five years from the practice of law as of the date of this order. The Court further orders that any subsequent reinstatement of Jonathan C. Hull shall occur only through his petition filing and after Court action on that petition, pursuant to the Maine Bar Rules.
In the event that the Lawyers’ Fund for Client Protection (LFCP) pays any new claims on behalf of any of Mr. Hull’s previous clients after the effective date of this order, he shall be responsible for reimbursement of those claims in a manner acceptable to the Board and to the LFCP Trustees. Compliance with this provision shall be a consideration for the Court upon any petition for reinstatement.
Dated: June 10, 2020
Valerie Stanfill
Justice, Maine Superior Court
Sitting as Single Justice, by Designation
1In Board of Overseers of the Bar v. Prolman, 2018 ME 28, three of the justices concluded that: "Rule 21(c) incorporates the framework and methodology of the ABA sanction standards, thereby requiring that framework to be explicitly applied after a finding of lawyer misconduct." (supra at paragraph 46.) Conversely, the three remaining justices concluded that there was: "no need to incorporate the ABA’s lengthy and detailed 'Standards for Imposing Lawyer Sanctions' into the Maine Bar Rules as a matter of law. Although an adjudicator should consult that extended discussion when it is relevant to a particular sanction decision, the requirement that an adjudication must track that lengthy and minute detail in order to impose any sanction would create an unnecessarily cumbersome process." (supra at paragraph 51.)
Board of Overseers of the Bar v. Jonathan C. Hull
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Docket No.: BAR-18-10
Issued by: Maine Supreme Judicial Court
Date: July 9, 2020
Respondent: Jonathan C. Hull
Bar Number: 001584
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar’s Petition for Discharge of Co-Receivers filed on July 7, 2020. For good cause shown and without objection, the Board’s Petition for Discharge is GRANTED as follows:
It is ORDERED that Attorney David Levesque and the Board of Overseers of the Bar are discharged as Co-Receivers of the law practice of Jonathan C. Hull. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
July 9, 2020
Valerie Stanfill
Justice, Maine Superior Court
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Anthony P. Shusta, II
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Docket No.: BAR-19-6
Issued by: Maine Supreme Judicial Court
Date: August 18, 2020
Respondent: Anthony P. Shusta, II
Bar Number: 003424
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Pending before the Court is the Board of Overseers of the Bar’s Petition for Discharge of Co-Receivers filed on July 20, 2020. For good cause shown and without objection, the Board’s Petition for Discharge is GRANTED as follows:
It is ORDERED that Attorney Rebecca Cayford and the Board of Overseers of the Bar are discharged as Co-Receivers of the law practice of deceased attorney Anthony P. Shusta, II. Pursuant to the September 2019 Receiver Appointment Order. the Board is authorized to receive reimbursement from the Shusta Estate as the first source of payment for disbursements made in the course of the Receivership. It is further ORDERED that the Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
Dated: August 18, 2020
E. Mary Kelly
Judge
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Clarence H. Spurling
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Docket No.: BAR-20-8
Issued by: Maine Supreme Judicial Court
Date: September 4, 2020
Respondent: Clarence H. Spurling, Esq.
Bar Number: 007416
Order: Immediate Interim Suspension
Disposition/Conduct: Conflict of Interest; Disciplinary Matters; Conduct Prejudicial to the Administration of Justice; Sexual Harassment
M. Bar R. 24
By filing dated August 25, 2020, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order of Interim Suspension of Clarence H. Spurling from the practice of law in the State of Maine. Incorporated with the Board’s Petition was a Statement in Support of the Petition with related exhibits.
The court held a telephonic conference with counsel on August 28, and set the matter for testimonial hearing on September 2, 2020. At both the conference and hearing, Plaintiff was represented by Assistant Bar Counsel Justin Andrus, and Defendant was represented by Mark Franco, Esq. The court heard testimony on September 2 from Defendant and from his former client, J.K. and received exhibits from both parties.
Following the hearing on September 2, 2020 and upon consideration of the testimony together with the exhibits and materials submitted, as well as arguments of counsel, the court concludes that the submitted evidence supports a finding that Attorney Spurling has committed multiple violations of the Maine Rules of Professional Conduct, specifically at least Rules 1.7(a)(2), 8.1 and 8.4(a), (d) and (g).1
The court finds that with his client J.K., Defendant engaged in several instances of touching of her leg of a sexual nature, culminating with unwelcome grasping and touching of her body at the last in-person conference. Defendant also suggested to J.K. that he would like a physical relationship to go further, particularly when he said he would like "the whole enchilada" from her. The touching and sexual innuendo were unwelcome to J.K. although she did not tell Defendant to stop by word or deed. Rather, she was distressed2 and discharged him almost immediately thereafter and hired another lawyer.
The court also finds that Defendant made unwelcome sexual advances to another client, K.W. Even if Defendant believed the advances were welcome at the time, it appears that K.W. was substantially incapacitated during the encounter.3
Defendant’s conduct with both clients violated Rule 8.4(g). Whether the (unwelcome) sexual touching and advances also constitute "sexual relations" with a client within the strict meaning of Rule 1.8(j),4 such conduct violates Rule 1.7(a)(2) with regard to the personal interest of the lawyer. See Bd. of Overseers of the Bar v. Prolman, 2018 ME 128, ¶ 18. It may also be criminal. See supra fn. 2; 17-A M.R.S. § 260. See also Rule 8.4(b).
While Defendant immediately admitted he should not have touched J.K., and "owned" his responsibility at the hearing, the court is not re-assured. In the same testimony in which he put the responsibility squarely on his shoulders, he also testified that he should not have let himself be "handled" or "manipulated" by J.K. The court does not agree that she "handled" or "manipulated" him, and the testimony gives the court pause as to whether Defendant actually understands the problem, including the power imbalance and vulnerability of the client. Similarly, Defendant said he immediately recognized his actions were inappropriate and disappointing, and consulted with MAP as a result. The fact that Defendant talked with MAP on several occasions before he decided to go drinking with another client and try to start a sexual relationship makes it clear to this court that he does not recognize the problem. His insight and honesty are further called into question by the fact that he denied to Bar Counsel that K.W. was a client, despite the fact that she had come to him in his professional capacity and paid the retainer.5 The response to Bar Counsel violates Rule 8.1.
Under the facts presented by the Board, this court concludes that Attorney Spurling’s misconduct serves as an imminent threat to clients, the public and to the administration of justice. M. Bar R. 24.
Effective 5 p.m. on September 9, 2020, this Court ORDERS that Attorney Clarence H. Spurling shall now be suspended from the practice of law in Maine, until further Order of this Court. The Court further ORDERS that all exhibits and the Statement in Support of the Petition for Immediate Suspension, including the Amended Statement, be impounded.
The Court further ORDERS that Attorney Spurling shall vacate his law office(s) (including any home office), cease practicing law, and cease operations of any and all of his websites, Facebook/social media account(s) and any other form of advertising of his legal services during the period of his suspension.
Attorney Spurling is prohibited from removing any funds, files, data, check books, financial records/bank information, client property, computer hardware/software or any client related or law office related items, including in the period from the time of this order until the suspension is effective as well as thereafter.
Counsel shall propose Receiver(s) or such other plan as is necessary to wind down the law office and protect the interests of Attorney Spurling’s clients, which shall be incorporated in a separate order.
Dated: September 4, 2020
Valerie Stanfill
Justice, Superior Court
Sitting as Single Justice by Designation
1There are other rules arguably violated, including Rule 1.15(b). Any such other potential violations were not fully developed and do not contribute to the court’s decision to immediately suspend Defendant.
2ln their telephone call the next day, Defendant recognized that she was more stressed when she left the conference than when it began.
3Defendant admits kissing K.W. but denies engaging in a sexual act. If Defendant engaged in or attempted to engage in a sexual act with K.W. as she alleges in her written statement, such actions may well constitute gross sexual assault pursuant to 17-A M.R.S. § 253(2)(A), (D). Without receiving testimony from K.W. it would be premature for the court to make any specific finding as to exactly what occurred at this stage, particularly as it is unnecessary for this decision.
4Rule 1.8(j) was added in 2018 and states "(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." The term "sexual relations" is not defined.
5She had paid the entire requested retainer when they went out together, but it is irrelevant whether he thought she had only paid half of the retainer because either way she had hired him.
Board of Overseers of the Bar v. Clarence H. Spurling
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Docket No.: BAR-20-8
Issued by: Maine Supreme Judicial Court
Date: September 9, 2020
Respondent: Clarence H. Spurling
Bar Number: 007416
Order: Amended Order of Immediate Interim Suspension
Disposition/Conduct: See September 4, 2020 Order of Immediate Interim Suspension
M. Bar R. 24
By Order dated September 4, 2020, the Court ordered that Attorney Clarence H. Spurling be suspended from the practice of law in Maine effective 5:00 p.m. on September 9, 2020, until further order of the Court.
Due to ongoing commitments to current clients, as well as prescheduled court appearances, and by agreement of the parties, the Court hereby modifies and amends the Order as follows:
- a. Attorney Spurling shall wind up or withdraw from each matter in which his client is neither an entity nor a man by September 11, 2020 at 5:00 p.m. EST. During that interval he may provide legal services to those clients only for appearances that occur before that deadline or for the purpose of transferring the file to other counsel or withdrawing.
- b. Effective September 18, 2020 at 5:00 p.m. EST, Attorney Spurling is fully suspended from the practice of law in the State of Maine consistent with this Court's Order of September 4, 2020, and until further order of the Court.
- c. To the extent not superseded by this Order, the provisions of the prior Order of this Court remain in effect.
DATED at Kennebec, Maine this 10th day of September, 2020; effective 9/9/20.
Valerie Stanfill
Justice, Superior Court
Sitting as Single Justice by Designation
Board of Overseers of the Bar v. Nicholas Bull, Esq.
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Docket No.: BAR-20-007
Issued by: Maine Supreme Judicial Court
Date: September 2, 2020
Respondent: Nicholas Bull, Esq.
Bar Number: 001030
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon consideration of Petition filed by the Board of Overseers of the Bar (Board), the Court Orders the following:
As of this date, Adrian Kendall, Esq., is appointed as the Receiver of Nicholas Bull’s law practice. As such, the Receiver shall have the sole authority to:
- secure any professional files, client property, and client data of Attorney Bull;
- inventory client files;
- give priority to client matters that may be identified as open, active, and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client, or office accounts.
As a service to the bar, Attorney Kendall shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) from Bull’s law practice, the Receiver may be reimbursed from those assets. Likewise, the Receiver shall submit an itemized list of any disbsursements made to effect the terms of this Order. Attorney Bull shall be the first choice for source of payment for those disbursements. If insufficient assets are available from the law office, the Board of Overseers may be an alternative payment source for expenses related to the law office closure.
Attorney Kendall shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32. The Receiver, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32.
Attorney Kendall shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receiver shall file a status report with the Court.
Dated: September 2, 2020
E. Mary Kelly
Judge
Sitting as Single Justice as designation
Board of Overseers of the Bar v. Clarence H. Spurling
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Docket No.: BAR-20-8
Issued by: Maine Supreme Judicial Court
Date: September 15, 2020
Respondent: Clarence H. Spurling
Bar Number: 007416
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
This Court Orders the following:
As of this date, Attorney Kevin P. Sullivan and the Board of Overseers of the Bar, through its Special Counsel, Angela Morse, Esq., are appointed as the Co-Receivers of Clarence (Skip) H. Spurling’s law practice. As such, the Co-Receivers, acting jointly or individually, shall have the sole authority to:
- Take over the Spurling law office and access and secure the professional files, client funds, and file property of that law office;
- Obtain signatory authority over all Spurling law office bank accounts (IOLTA and operating/office accounts);
- Obtain access to Mr. Spurling’s computer hardware and software; including any mobile devices and cellular telephones (together with required passwords), and any post office boxes to secure all law office or legal mail;
- Inventory the open and if necessary, the closed client files, and to safeguard those files, but not to provide files or file contents to Mr. Spurling;
- Give priority attention to client matters which are open and time sensitive;
- Notify all courts that Attorney Sullivan and the Board are serving as Mr. Spurling’s law office Co-Receivers until further order of this Court;
- Notify clients or former clients that Attorney Sullivan and the Board are serving as Receivers of the Spurling law practice and provide opportunity for clients to consult with the Receivers or retrieve their property; and
- The Receivers shall access and utilize Mr. Spurling’s operating and IOLTA accounts to prudently and appropriately wind down the practice. The Receivers may pay expenses, as they deem appropriate given available funds or anticipated receivables to the firm. The Receivers have the sole authority to collect office receivables. The Receivers may also hire temporary office staff and take other action as necessary and appropriate to manage the Spurling law practice.
As a service to the bar, Attorney Sullivan and the Board acknowledge that they shall serve as Co-Receivers on a pro bono basis, although if there are sufficient assets (including receivables) at six-month intervals, from Mr. Spurling’s law practice, the Receivers may be reimbursed from those assets. The Receivers shall submit a quarterly written report to the Court and the Board of Overseers of the Bar containing a record of time worked.
Likewise, the Receivers shall submit an itemized list of any disbursements made to effect the terms of this Order. Mr. Spurling and his law practice shall be the first choice for source of payment for those disbursements. If insufficient assets are available from Mr. Spurling, the Board of Overseers of the Bar may be an alternative payment source for those disbursements.
Attorney Sullivan and the Board shall act as Receivers until discharged by the Court either by Motion or in accordance with M. Bar R 32.
The Receivers, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32(a).
Furthermore, Attorney Sullivan may be engaged by any former client of Mr. Spurling’s provided that the Receiver informs such client in writing that the client is free to choose to employ any attorney, and that the Court’s appointment order does not mandate or recommend the Receiver’s employment by the client.
The Receivers are subject to all Maine Rules of Professional Conduct, including M. R. Prof Conduct 1.7; 1.8; and 1.9 regarding conflicts of interest. A client’s retention of Attorney Sullivan as successor counsel is not a per se conflict of interest solely by reason of appointment by this Order.
Attorney Sullivan and the Board through its Special Counsel shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receivers shall file a status report with the Court.
Dated: September 15, 2020
Valerie Stanfill
Justice, Superior Court
Sitting as Single Justice by designation
Board of Overseers of the Bar v. In Re Thomas Faiella
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Docket No.: BAR-20-6
Issued by: Maine Supreme Judicial Court
Date: August 27, 2020
Respondent: Thomas Faiella
Bar Number: 005067
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement: Administrative
Thomas Faiella, Esq., who has been on inactive status with the Board of Overseers of the Bar since 2014, has filed a formal petition for reinstatement to the bar pursuant to M. Bar R. 29. Because Faiella has been on inactive status in the Maine Bar for over five years, this Court may, in its discretion, require him to petition the Court for reinstatement pursuant to M. Bar R. 29. See M. Bar. R. 4(j).
After consideration of the circumstances presented here, particularly that Attorney Faiella is a member in good standing of the Massachusetts bar, it is ORDERED that the Board of Overseers may, in its discretion, administratively reinstate Attorney Faiella to active status in the Maine bar without further action by the Court. If the Board declines to reinstate Attorney Faiella without further Court proceedings, he may notify the Executive Clerk of this Court that the Board has declined to administratively reinstate him, and the Court will then consider his petition for reinstatement.
Dated: August 27, 2020
Ellen A. Gorman
Associate Justice
Board of Overseers of the Bar v. In Re Joan Friedman Cohen
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Docket No.: BAR-20-9
Issued by: Maine Supreme Judicial Court
Date: October 13, 2020
Respondent: Joan Friedman Cohen
Bar Number: 007474
Order: Reinstatement: Administrative
Disposition/Conduct: Reinstatement Administrative
M. Bar R. 4(j); 29
This order replaces the order dated October 7, 2020, and corrects two typographical errors in that order.
Joan Friedman Cohen has petitioned for reinstatement to Maine bar. Pursuant to M. Bar R. 4(j) and 29(f)(l), Bar Counsel has stipulated to Ms. Cohen’s reinstatement, subject to the Court's approval.
The Court has reviewed Ms. Cohen’s Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is hereby ORDERED as follows:
Effective on the date of this Order, Joan Friedman Cohen, Bar #007474, is hereby reinstated to the Maine bar with all the rights and responsibilities hereto.
Dated: October 13, 2020
Thomas D. Warren
Justice, Superior Court
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Peter Whittington Drum, Esq.
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Docket No.: GCF 19-389
Issued by: Grievance Commission
Date: October 22, 2020
Respondent: Peter Whittington Drum, Esq.
Bar Number: 009884
Order: Admonition
Disposition/Conduct: Diligence
M. Bar R. 13(e)(7)(D)
On October 22, 2020, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Peter W. Drum, Esq. The disciplinary proceeding had been commenced by the filing of a Stipulated Disciplinary Petition by the Board of Overseers of the Bar (the "Board") on July 29, 2020.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Drum appeared with counsel, James M. Bowie, Esq. Prior to the hearing, the parties had submitted a stipulated proposed sanction Report for the Grievance Commission Panel’s review and consideration. The Complainant, R. G., was also provided with a copy of the parties’ proposed Stipulated Report in advance of the hearing.
Having reviewed and agreed to the proposed findings as presented by the parties, the Panel makes the following findings and disposition:
- Attorney Drum was at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Attorney Drum was admitted to the Maine bar in 2005 and he is currently in private practice in Damariscotta, Maine.
- In early October of 2018, R.G. retained Attorney Drum on behalf of an Owner’s Association to give the Association written legal opinions regarding their obligation to finish a road within the subdivision.
- Attorney Drum received $1,000 of an agreed upon $2,000 fee at the time he was retained. Three weeks later Attorney Drum was asked 15 additional questions.
- Between October of 2018 and April of 2019, R.G. made contact with Attorney Drum regarding the status of the requested opinions on several occasions, and on each occasion Attorney Drum assured him that the work was in progress, and that he would provide the opinions in the near future.
- In June of 2019, R.G. suggested that Attorney Drum return the $1,000 retainer, but agreed that Attorney Drum could keep the $1,000 if he answered all but one of the 15 questions posed.
- In September of 2019, when he still had not received the written opinions, R.G. filed his complaint with the Board of Overseers.
- After receiving R.G.’s complaint, Attorney Drum refunded the $1,000 retainer, and through counsel, admitted that, "he was not as diligent as he should have been responding to R.G., and in supplying a final work product."
- After receiving Attorney Drum’s response, and having the retainer returned, R.G. agreed that his complaint should be dismissed with a warning to Attorney Drum.
- Attorney Drum now fully admits that he failed to exercise reasonable diligence and promptness in completing the work that he was retained to complete as required by MRPC Rule 1.3.
Attorney Drum has explained that during the time period in question that he had a turnover of staff in his office, and that he suffered a broken leg that winter, both of which affected his ability to provide services to his client as he had promised. He has also explained that while he did complete a substantial portion of the work required in order to provide the written opinions, that he ultimately failed to provide those opinions in a timely manner.
Nonetheless, Attorney Drum has fully acknowledged that he failed to comply with his obligation under MRPC Rule 1.3 to "act with reasonable diligence and promptness in representing a client." While R.G. has agreed that there was no adverse impact to the Association resulting from Attorney Drum’s misconduct, Attorney Drum has fully acknowledged that his failure to act with reasonable promptness in providing his client with the requested opinions resulted in his violation of MRPC Rule 1.3.
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of professional conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. In this instance, the duty violated was to Attorney Drum’s own client. With regard to his mental state, Attorney Drum’s misconduct was not intentional, and he appears to have fully intended to provide the services that he promised to his client. While Attorney Drum failed to act with reasonable promptness in providing those services, there was no adverse effect upon his former client as a result of his failure. Therefore, there was little or no actual injury to any client, the profession, or the public resulting from Attorney Drum’s conduct.
Attorney Drum is a sole-practitioner who has practiced in Maine since 2005, and although he has been in active practice since that time, he has no prior disciplinary history during his fifteen years of practice.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Attorney Drum agrees that he did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that Attorney Drum’s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Drum. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Drum.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Attorney Drum pursuant to M. Bar R. 13(e)(10)(B).
Date: October 22, 2020
Carolyn A. Silsby, Esq., Chair
Megan A. Sanders, Esq.
Tim I. Marks, Public Member
Board of Overseers of the Bar v. Stephen J. Link, Esq.
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Docket No.: GCF 19-323
Issued by: Grievance Commission
Date: October 29, 2020
Respondent: Stephen J. Link, Esq.
Bar Number: 005539
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Report: Finding of Probable Cause for Filing of an Information
M. Bar R. 13(e)(10)(E)
This matter was heard by Grievance Commission Panel E on October 29, 2020 via Zoom. Pursuant to a Disciplinary Petition dated March 5, 2020, with the parties having been duly noticed, the Commission conducted a public disciplinary hearing in accordance with M. Bar R. 13(e)(7). The purpose of that hearing was to determine whether grounds exist for the issuance of a reprimand or whether probable cause exists for the filing of an Information with the Court. The Board of Overseers of the Bar was represented by Assistant Bar Counsel Justin W. Andrus. Attorney Link, the Respondent, failed to appear and was not represented in this proceeding.
Based upon the Petition, and the exhibits admitted at the hearing, the Commission finds that there is probable cause for the Respondent’s suspension or disbarment. Accordingly, the Commission directs the office of Bar Counsel to commence an attorney disciplinary action by filing an Information with the Court pursuant to M. Bar R. 13(g).
DATED: 10/29/2020
John J. Aromando, Esq., Panel Chair
Board of Overseers of the Bar v. Paul R. Dionne, Esq.
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Docket No.: GCF #19-409
Issued by: Grievance Commission
Date: October 29, 2020
Respondent: Paul R. Dionne, Esq.
Bar Number: 001222
Order: Admonition Supervision
Disposition/Conduct: Diligence, Conduct Prejudicial to the Administration of Justice
M. Bar R. 13(e)(7)(D)
On October 29, 2020, with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Paul R. Dionne, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the filing of a Formal Charges Disciplinary Petition.
At the October 29, 2020 hearing, Attorney Dionne was represented by Jon S. Oxman, Esq., and the Board was represented by Assistant Bar Counsel, Justin W. Andrus. The Clerk provided complainant, Attorney Nora Baker, with notice of this action. She did not appear.
Prior to the scheduled hearing date, the parties notified the Grievance Commission that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advanced review and consideration. Assistant Bar Counsel also provided Attorney Baker with a copy of the parties’ proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following disposition:
Respondent Paul R. Dionne, Esq. (Attorney Dionne) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, Dionne is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R.P.C.). Dionne was admitted to the Maine Bar in 1976 and is currently a solo practitioner in Lewiston, Me.
According to the parties’ stipulations, the Commission finds the following relevant facts:
On October 15, 2019, Attorney Nora Baker filed a complaint against Attorney Dionne on behalf of the Alzheimer’s Association. Within her complaint, Attorney Baker alleged that Dionne had contacted the Alzheimer’s Association in August 2014 on behalf of a trust. The Alzheimer’s Association was a 25% beneficiary of the trust. Attorney Baker alleged that Attorney Dionne had failed to pay the Alzheimer’s Association its bequest, and that Attorney Dionne had been unresponsive to communications from the Alzheimer’s Association, including letters and voicemail through October 2019.
The Board sought immediate confirmation from Attorney Dionne that the money due to the Alzheimer’s Association remained in trust for distribution. Attorney Dionne made timely reply to that request confirming that the money did remain in trust. He explained that he was waiting for an executed Authorization from the Alzheimer’s Association before making the distribution.
On November 4, 2019, Attorney Dionne made his full timely response to Attorney Baker’s complaint. In his response, Attorney Dionne explained that in the course of preparing that document he had reviewed the Trust file and an associated file, and realized that he had received and misfiled the Authorization. He acknowledged his mistake.
Attorney Dionne paid the corpus of the bequest from the Trust to the Alzheimer’s Association. Through counsel, he addressed the issue of the lost opportunity caused by the delay in responding to Attorney Baker. Attorney Dionne made an additional payment to the Alzheimer’s Association to satisfy that lost opportunity.
Even though Dionne did not intend to withhold the bequest from the Alzheimer’s Association, the Commission finds that his actions constituted violations of M. R. P. C. (1.3) [diligence] and 8.4(d) [conduct prejudicial to the administration of justice].
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Attorney Dionne agrees that he violated his duties to comply with those Rules.
The Grievance Commission notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Dionne agrees that he did in fact violate the Maine Rules of Professional Conduct, the Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Attorney Dionne agrees that his misconduct violated duties that he owed to his client to see her wishes fulfilled, to the third-party beneficiary, and to the profession. After considering Attorney Dionne’s statements arising from the hearing, the Commission does not find that he acted with the intent to harm the Alzheimer’s Association. Given the totality of circumstances, the Alzheimer’s Association suffered nominal harm that the Commission finds did not arise to the level of serious misconduct. The Commission does find that Attorney Dionne committed misconduct by failing to recognize that he had received the necessary Authorization from the Alzheimer’s Association, and by failing to then follow up by forwarding the bequest. The Commission expects that Attorney Dionne will learn from this lapse in office and document management and refrain from engaging in similar misconduct with his future representation of clients.
Regarding potential aggravating and mitigating factors, Attorney Dionne has received no prior discipline/sanctions, but he does have substantial experience in the practice of law. In mitigation, Attorney Dionne has admitted his misconduct, has expressed remorse for that misconduct, and has been cooperative throughout the investigation and prosecution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Grievance Commission finds that an Admonition and supervision are appropriate sanctions to address the misconduct by Attorney Dionne. The parties shall mutually agree upon the supervision terms, but at a minimum, supervision shall continue for one year, and Attorney Dionne will consult with an agreed upon person experienced in the proper management of documents and trust accounts, and shall meet with that person a least once each month to review practice management, including communication with clients and third parties. The parties have further agreed that the supervision terms shall be maintained within Special Bar Counsel’s file, and he shall notify the Commission Clerk upon Attorney Dionne’s successful completion of the period of supervision. With these consented-to-conditions, the Commission accepts the agreement of the parties, including Attorney Dionne’s separately executed waiver of the right to file for a Petition for Review.
Pursuant to M. Bar R. 13., the Commission hereby imposes an Admonition and one year of supervision upon Paul R. Dionne, Esq.
DATE: October 29, 2020
John J. Aromando, Esq., Panel Chair
Andre J. Hungerford, Esq., Panel Member
Margaret T. Clancey, Public Member
Board of Overseers of the Bar v. Kristina B. Reeves
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Docket No.: BAR-20-3
Issued by: Maine Supreme Judicial Court
Date: November 2, 2020
Respondent: Kristina B. Reeves
Bar Number: 009538
Order: Reciprocal Discipline
Disposition/Conduct: Public Reprimand
M. Bar R. 26(e)
- Kristina B. Reeves, Esq., was admitted to practice law in the State of Maine in 2003.
- Attorney Reeves is also a member of the Arizona bar, where she was admitted in 2014.
- On January 9, 2020, the Board of Overseers of the Bar (the Board) received a copy of the December 31, 2019, Order of the Presiding Disciplinary Judge of the Supreme Court of Arizona (the Order), imposing upon Attorney Reeves a disciplinary sanction of a reprimand. Pursuant to M. Bar R. 26(b), on February 25, 2020, the Board filed its Petition for Reciprocal Discipline, and a certified copy, with exhibits, of the Order with the Executive Clerk of the Law Court.
- By its terms, the Order imposed a Public Reprimand and Order on Costs upon Attorney Reeves resulting from her violations of Rules 42 and ER 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) of the Arizona Rules of Professional Conduct.
- Neither the Board nor Attorney Reeves have demonstrated that it clearly appears upon the face of the record from which the order is predicated, that
- Attorney Reeves acknowledges that the above constitutes a sufficient basis to warrant the imposition of reciprocal discipline.
- The Court has reviewed M. Bar R. 21(c) and the ABA Standards for Imposing Lawyer Sanctions. Based upon its review, the Court is satisfied that a public reprimand fulfills the purpose of lawyer regulation in this instance.
(1) The 2019 Arizona procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The discipline imposed would result in grave injustice or be offensive to Maine public policy; or
(4) The reason for the original order no longer exists.
WHEREFORE, pursuant to M. Bar R. 26(e), the Court imposes upon Attorney Reeves a Public Reprimand due to her admitted professional conduct violations. The Court also orders that medical records information submitted by Attorney Reeves shall be impounded and remain confidential. The clerk shall enter this order on the docket.
Dated: November 2, 2020
E. Mary Kelly, Judge
Single Justice by Designation
Board of Overseers of the Bar v. Jeffrey C. Toothaker, Esq
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Docket No.: GCF19-105
Issued by: Grievance Commission
Date: November 4, 2020
Respondent: Jeffrey C. Toothaker, Esq.
Bar Number: 007523
Order: Admonition
Disposition/Conduct: Safekeeping Property
M. Bar R. 13(e)(7)(D)
On October 22, 2020, with due notice, the undersigned Panel of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D) concerning misconduct by the Respondent, Jeffery C. Toothaker, Esq. The disciplinary proceeding had been commenced by the filing of a Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 24, 2020. The disciplinary hearing was adjourned, resuming and concluding on November 4, 2020.
At the stipulated hearing, the Board was represented by Assistant Bar Counsel Alan P. Kelley and Attorney Toothaker appeared pro se. Prior to the start of the hearing, the parties had submitted a proposed Stipulated Sanction Report for the Grievance Commission Panel’s review and consideration. The Complainant, Ricky O. Millay, was also provided with a copy of the parties’ proposed Stipulated Report in advance of the hearing. Prior to the resumption of the hearing, the parties submitted a revised version of the proposed Stipulated Sanction Report. Having reviewed and agreed to the proposed findings as presented by the parties, the Panel makes the following findings and disposition:
- Attorney Toothaker was at all times relevant hereto an attorney duly admitted to and authorized to engage in the practice of law and in all events and respects subject to the Maine Bar Rules and the Maine Rules of Professional Conduct.
- Attorney Toothaker was admitted to the Maine bar in 1992 and he is currently in private practice in Ellsworth, Maine.
- On May 2, 2016, Attorney Toothaker was court-appointed to represent Ricky O. Millay in the Washington County Superior Court on a felony level Operating Under the Influence charge, as well as other related criminal charges.
- On August 30, 2017, after trial by jury, Mr. Millay was convicted of the felony level Operating Under the Influence charge, and was subsequently sentenced to serve a sentence at the Maine Department of Corrections.
- On August 20, 2018, Mr. Millay filed a Post-Conviction Review Petition, alleging inter alia, that Attorney Toothaker provided him with ineffective assistance of counsel.
- Attorney David Paris was court-appointed to represent Mr. Millay on his Post-Conviction Review Petition, and on October 10, 2018, he requested Mr. Millay’s file from Attorney Toothaker.
- Having not received the file, Attorney Paris obtained a court order on January 4, 2019 that required Attorney Toothaker to turn over Mr. Millay’s file to Attorney Paris within 20 days.
- Attorney Toothaker had not received or otherwise been notified of the court order by Attorney Paris.
- On or about March 22, 2019, Attorney Toothaker hand-delivered the original file to the District Attorney’s Office in Ellsworth, Maine, where it was picked up by Attorney Paris.
- Attorney Toothaker admits that he failed to promptly deliver his former client’s file to Attorney Paris as he was required to do by MRPC Rule 1.15(b)(2)(iv).
Attorney Toothaker has explained that at the time of Attorney Paris’s initial request for his former client’s file, that based upon his prior experience, he was reluctant to mail the file, and that he wanted to personally deliver the file to Attorney Paris. Attorney Toothaker had been involved in previous Post-Conviction Review cases with Attorney Paris, and they had always been able to work out arrangements for transferring client files. Despite making some attempts to connect with Attorney Paris to transfer the file, Attorney Toothaker failed to provide the file to Attorney Paris in a timely manner. Attorney Toothaker has explained that during the time period in question, his sole-practice was particularly demanding, and that between January of 2019 and March of 2019, he had two separate homicide cases that went to jury trial. Due to the importance and complicated nature of the homicides, he has explained that he dedicated large amounts of his time to those cases.1
Attorney Paris informed the Assistant Bar Counsel that he did not send a copy of the court order regarding Mr. Millay’s file to Attorney Toothaker. There is no record indicating that Attorney Toothaker was notified of that order. Attorney Toothaker does not recall being made aware of the existence of the court order prior to the filing of Mr. Millay’s complaint.
Nonetheless, Attorney Toothaker has fully acknowledged that he failed to understand that his obligation under MRPC Rule 1.15(b)(2)(iv) was to ‘promptly’ deliver the client file to Attorney Paris upon Mr. Millay’s request. Although there was no evidence of adverse impact to Mr. Millay’s Post-Conviction Review matter resulting from the delay, Attorney Toothaker has fully acknowledged that his failure to promptly turn over his client’s file resulted in his violation of MRPC Rule 1.15(b)(2)(iv).
Among the factors to be considered in imposing sanctions are: the duty violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct and the existence of any aggravating or mitigating circumstances. See ABA Standards for Imposing Lawyer Sanctions, 1991 (ABA Standards). See also M. Bar R. 21(c).
The first factor to be considered for sanctions under the ABA Standards is to determine what duty has been breached. The Maine Rules of Professional Conduct and the Maine Bar Rules require attorneys to uphold their responsibilities to clients and the courts. In this instance, Attorney Toothaker’s duty was to his former client, Mr. Millay, and he failed to fulfill that duty. With regard to his mental state, Attorney Toothaker’s misconduct was clearly negligent, but it was not done with malicious intent. Despite Attorney Toothaker’s lengthy delay in delivering his client’s file to new counsel, there is no evidence of any adverse effect upon the outcome of his former client’s case as a result of his failure. Therefore, there was little or no actual injury to any client, the public, the legal system, or the profession resulting from Attorney Toothaker’s misconduct.
In mitigation, Attorney Toothaker now recognizes the importance of making prompt transfers of client files when clients obtain new counsel, and he has agreed to ensure that such future transfers are accomplished in a timely manner.
Attorney Toothaker is a sole-practitioner who has practiced in Maine since 1992, and although he has an active practice, including a significant number of court-appointed cases, he has no prior history of receiving a public sanction for ethical misconduct.
In sum, the evidence of misconduct supports the reviewing Panel’s findings, and Attorney Toothaker agrees that he did in fact violate the Maine Rules of Professional Conduct. However, the Panel agrees that Attorney Toothaker’s misconduct was minor; that there was little or no injury to a client, the public, the legal system, or the profession; and that there is little likelihood of repetition by Attorney Toothaker. Accordingly, the Panel concludes that an admonition is a proper sanction to impose upon Attorney Toothaker.
Therefore, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is the issuance of an admonition, which is now hereby issued and imposed upon Attorney Toothaker pursuant to M. Bar R. 13(e)(10)(B).
Date: November 4, 2020
Peter B. Bickerman, Esq., Chair
Megan A. Sanders, Esq.
Daniel P. Belyea, Public Member
1 State v. Murray went to trial in late January, and State v. St. Croix went to trial in late March. Both homicide trials lasted approximately one week.
Board of Overseers of the Bar v. Daniel T. Rush, Esq.
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Docket No.: BAR-20-13
Issued by: Maine Supreme Judicial Court
Date: November 19, 2020
Respondent: Daniel T. Rush, Esq.
Bar Number: 000848
Order: Receiver Appointment
Disposition/Conduct: Receiver Appointment
M. Bar R. 32
Upon consideration of Petition filed by the Board of Overseers of the Bar (Board), the Court Orders the following:
As of this date, Stephen Y. Hodsdon, Esq., is appointed as the Receiver of Daniel T. Rush’s law practice. As such, the Receiver shall have the sole authority to:
- secure any professional files, client property, and client data of Attorney Rush;
- inventory client files;
- give priority to client matters that may be identified as open, active, and apparently time sensitive;
- notify former clients that the law practice has concluded and provide opportunity for those clients to retrieve their property;
- assist clients with any active matters in their efforts to obtain new counsel;
- if necessary, provide notice of appointment to all courts and relevant state and county agencies; and
- if necessary, reconcile any IOLTA, client, or office accounts.
As a service to the bar, Attorney Hodsdon shall serve as Receiver on a pro bono basis, although if there are sufficient assets (including receivables) from Rush’s law practice, the Receiver may be reimbursed from those assets.
Likewise, the Receiver shall submit an itemized list of any disbursements made to effect the terms of this Order. Attorney Rush shall be the first choice for source of payment for those disbursements. If insufficient assets are available from the law office, the Board of Overseers may be an alternative payment source for expenses related to the law office closure.
Attorney Hodsdon shall act as Receiver until discharged by the Court either by Motion or in accordance with M. Bar R. 32.
The Receiver, so appointed, shall not disclose any information contained in any file listed in the inventory without the consent of the client to whom such file relates except as may be necessary to carry out an order of court including any order under M. Bar R. 32.
Pursuant to Bar Rule 32(e) Attorney Hodsdon shall be protected from liability for professional services rendered in accordance with this Order.
Finally, within one-hundred and twenty (120) days of this Order, the Receiver shall file a status report with the Court.
Dated: November 19, 2020
Ann M. Murray
Justice
Sitting as Single Justice by designation
Board of Overseers of the Bar v. Thomas S. Carey, Esq.
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Docket No.: GCF #19-100
Issued by: Grievance Commission
Date: November 19, 2020
Respondent: Thomas S. Carey, Esq.
Bar Number: 000095
Order: Reprimand
Disposition/Conduct: Confidentiality of Information; Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts; Misconduct
M. Bar R. 13(e)
On November 17, 2020 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e), concerning misconduct by the Respondent, Thomas S. Carey, Esq. The Board of Overseers of the Bar (the Board) commenced this proceeding by the filing of a Formal Charges Disciplinary Petition.
At the November 17, 2020 hearing, Attorney Carey was self-represented, and the Board was represented by Special Bar Counsel, Justin W. Andrus. The Clerk provided complainant, Tina M. St. Laurent, with notice of this action. She did appear.
Prior to the scheduled hearing date, the parties notified the Grievance Commission that they had negotiated a proposed settlement of the disciplinary matter. The proposed sanction report was submitted to the Clerk for the Commission’s advanced review and consideration. Special Bar Counsel also provided Ms. St. Laurent with a copy of the parties’ proposed Stipulated Report in advance of the stipulated hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following disposition:
- Respondent Attorney Thomas S. Carey is an attorney licensed to practice law in Maine since October 1976. He is not licensed to practice in any other jurisdiction.
- Attorney Carey has at all times material to this petition been a practicing attorney.
- Attorney Carey represented a client, T.B.
- Attorney Carey maintained a client file for T.B.
- Attorney Carey was subject to duties pursuant to Rule 1.6(a) and 1.15(a) and (f) to safeguard that file for T.B.
- Notwithstanding those duties, Attorney Carey delivered T.B.’s file over to his son, Seth Carey.
- At the time Attorney Carey delivered T.B’s file over to his son Attorney Carey was not authorized to do so.
- Based on the facts set forth above, the parties agree that Attorney Thomas S. Carey, Esq. has engaged in violations of the Maine Rules of Professional Conduct as detailed below:
1.6 Confidentiality of Information
(a) A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent.
1.15 Safekeeping Property, Client Trust Accounts, Interest on Trust Accounts
(1)(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession. (2) A lawyer shall:
(f) Upon termination of representation, a lawyer shall return to the client or retain and safeguard in a retrievable format all information and data in the lawyer’s possession to which the client is entitled. Unless information and data are returned to the client or as otherwise ordered by a court, the lawyer shall retain and safeguard such information and data for a minimum of eight (8) years, except for client records in the lawyer’s possession that have intrinsic value in the particular version, such as original signed documents, which must be retained and safeguarded until such time as they are out of date and no longer of consequence. A lawyer may enter into a voluntary written agreement with the client for a different period. In retaining and disposing of files, a lawyer shall employ means consistent with all other duties under these rules, including the duty to preserve confidential client information.
8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate any provision of either the Maine Rules of Professional Conduct or the Maine Bar Rules, or knowingly assist or induce another to do so, or do so through the acts of another;
Even though Carey intended to afford his T.B. a courtesy by giving her file to Seth Carey for delivery to her, the Commission finds that his actions constituted violations of the foregoing rules. The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Attorney Carey agrees that he violated his duties to comply with those Rules.
The Commission notes that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. Since the evidence supports a finding and Carey agrees that he did in fact violate the Maine Rules of Professional Conduct, the Grievance Commission must now issue an appropriate sanction. Pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
The Commission relies on Maine Bar Rule 21(c) for guidance as to the proper factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and
(4) the existence of any aggravating or mitigating factors.
In this matter, Carey agrees that his misconduct violated duties that he owed to his client and to the profession. After considering Attorney Carey’s statements arising from the hearing, the Commission does not find that he acted with the intent to harm T.B. T.B. was provided the opportunity to comment on this process; to identify any harm she may have suffered; and, to support or object to the proposed sanction. She has expressed her preference that Attorney Carey receive the maximum possible sanction for his misconduct. Notwithstanding her perspective, particularly in light of the reality that T.B. was not aware of the circumstances giving rise to this matter until informed by Special Bar Counsel, the Commission finds that T.B suffered nominal harm that did not arise to the level of serious misconduct. The Commission does find that Attorney Carey committed misconduct by failing to safeguard her file. The Commission expects that Attorney Carey will learn from this lapse and refrain from engaging in similar misconduct with his future representation of clients.
Regarding potential aggravating factors, Attorney Carey has received no prior discipline/sanctions more serious than a Reprimand, and no more recently than 1993, but he has substantial experience in the practice of law. In mitigation, Carey has admitted his misconduct, has expressed remorse for that misconduct, and has been cooperative throughout the investigation and prosecution of this matter.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that a Reprimand is the appropriate sanctions to address the misconduct by Attorney Carey.
Pursuant to M. Bar R. 13., the Commission hereby imposes a Reprimand upon Thomas S. Carey, Esq.
Date: November 19, 2020
David S. Abramson, Esq., Panel Chair
Margaret D. McGaughey, Esq., Panel Member
Malcolm T. Dow, Public Member
Board of Overseers of the Bar v. Christopher W. Keenan, Esq.
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Docket No.: Bar-20-4
Issued by: Maine Supreme Judicial Court
Date: November 16, 2020
Respondent: Christopher W. Keenan, Esq.
Bar Number: 003338
Order: Reciprocal Discipline
Disposition/Conduct: Public Reprimand
M. Bar R. 26(e)
- Christopher W. Keenan, Esq., was admitted to practice law in the State of Maine in 1986.
- Attorney Keenan is also a member of the New Hampshire bar, where he was admitted in 1986.
- On January 8, 2020, the Board of Overseers of the Bar (the Board) received a certified copy of the New Hampshire Supreme Court’s December 17, 2019, Order with incorporated exhibits.
- By its terms, the Court’s Order imposed a Public Reprimand and Order on Costs upon Attorney Keenan resulting from his violations of Rules 1.15 and 8.4(a) and Sup. Ct. R. 50, as stipulated, of the New Hampshire Rules of Professional Conduct.
- Specifically, Attorney Keenan stipulated, and the New Hampshire Supreme Court found, that he had failed to properly account for and reconcile his trust account.
- The Board and Attorney Keenan stipulate for the purposes of this proceeding that the violation forming the basis of the New Hampshire Supreme Court’s December 17, 2019, Order was a continuation of related conduct that had resulted in a 2017 disciplinary proceeding.
- Neither the Board nor Attorney Keenan have demonstrated that it clearly appears upon the face of the record from which the order is predicated, that
(1) The 2019 New Hampshire procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The discipline imposed would result in grave injustice or be offensive to Maine public policy; or
(4) The reason for the original order no longer exists. - Attorney Keenan acknowledges that the above constitutes a sufficient basis to warrant the imposition of reciprocal discipline.
- The Court has reviewed M. Bar R. 21(c) and the ABA Standards for Imposing Lawyer Sanctions. Based upon its review, the court is satisfied that a public reprimand fulfills the purpose of lawyer regulation in this instance.
WHEREFORE, pursuant to M. Bar R. 26(e), the Court imposes upon Attorney Keenan a Public Reprimand due to his admitted professional conduct violations. The clerk shall enter this order on the docket.
Dated: November 16, 2020
Daniel F. Driscoll
Judge, Single Justice by Designation
Board of Overseers of the Bar v. Charles T. Ferris, Esq.
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Docket No.: GCF #20-046
Issued by: Grievance Commission
Date: December 18, 2020
Respondent: Charles T. Ferris, Esq.
Bar Number: 007550
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On December 14, 2020 with due notice, and pursuant to Maine Bar Rule 13(e)(7)(D), Panel B of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Charles T. Ferris, Esq. The disciplinary proceeding was commenced by Bar Counsel’s filing of a September 14, 2020 Stipulated Formal Disciplinary Charges Petition.
At the hearing, Attorney Ferris was present and represented by his counsel, Walter F. McKee, Esq. Bar Counsel Julia A. Sheridan was present on behalf of the Board. Complainant Emily Mee was provided with a copy of the proposed order in advance of the hearing but did not attend. Prior to the hearing, Bar Counsel and Attorney McKee negotiated a stipulated, proposed sanction Report & Order for the Grievance Commission Panel’s review and consideration.
After consideration and deliberation, the Panel rejects the parties’ proposed Stipulated Report of Findings and Order. Bar Counsel shall prepare and present a formal petition for disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will reset this case for hearing, and subsequently provide advance notice to the parties of the time and place of that hearing.
Date: December 18, 2020
Gretchen L. Jones, Esq., Panel Chair
Philip A. Notis, Esq., Panel Member
Michael W. Arthur, LCPC, Public Member
Board of Overseers of the Bar v. J.D. Hoffman, Esq.
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Docket No.: GCF #18-326
Issued by: Grievance Commission
Date: October 28, 2020
Respondent: J.D. Hoffman, Esq.
Bar Number: 008365
Order: Order
Disposition/Conduct: Rejection of Stipulated Report
On October 28, 2020, with due notice, Panel D of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 13(e)(7)(D), concerning alleged misconduct by the Respondent, J. D. Hoffman, Esq. The disciplinary proceeding was commenced by Bar Counsel’s filing of a March 5, 2020 formal Disciplinary Petition.
At the hearing, Attorney Hoffman was present and represented by his counsel, James M. Bowie, Esq. Assistant Bar Counsel Justin W. Andrus was also present. Complainant Regan A. Sweeney Esq. attended the hearing along with his client, Garth Clark. Prior to the hearing, Assistant Bar Counsel and Attorney Hoffman negotiated a stipulated, proposed sanction Report for the Grievance Commission Panel’s review and consideration.
After consideration and deliberation, the proposed Stipulated Report of Findings and Order is rejected. Given that this is the second proposed settlement that has been rejected, and given some of the questions and concerns this particular Panel had with both the proposed, stipulated factual findings and the proposed conclusions of law and sanctions, this Panel is of the opinion that this matter is better suited for an evidentiary hearing that a third proposed settlement.
The Board Clerk shall schedule this matter for further disciplinary proceedings before a different panel of the Grievance Commission. Those proceedings shall take place pursuant to Bar Rule 13(e)(7). The Board Clerk will notify the parties in advance of the time and place of the next hearing.
Date: October 28, 2020
Luis D. Carrillo, Esq., Panel Chair
Megan A. Sanders, Esq., Panel Member
Malcolm T. Dow, Public Member
Board of Overseers of the Bar v. Richard L. Rhoda, Esq.
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Docket No.: GCF #19-089
Issued by: Grievance Commission
Date: January 7, 2021
Respondent: Richard L. Rhoda, Esq.
Bar Number: 000124
Order: Reprimand
Disposition/Conduct: Communication, Confidentiality, Prejudicial Conduct
Board of Overseers of the Bar v. Clifford M. Ginn
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Docket No.: BAR-20-11
Issued by: Maine Supreme Judicial Court
Date: February 8, 2021
Respondent: Clifford M. Ginn
Bar Number: 009919
Order: Consent Order Immediate Interim Suspension
Disposition/Conduct: Consent Order of Interim Suspension
This matter came before the Court on the Plaintiff’s Petition for Interim Suspension dated October 29, 2020. The parties represented through their respective counsel that they had reached the following agreement: The Court therefore enters the following as its Order:
Attorney Clifford M. Ginn is suspended from the practice of law in Maine effective 5:00 p.m. on Friday, March 5, 2021.
Attorney Ginn shall comply with the requirements of Maine Bar Rule 31.
From the date of this Order, and until further order of this Court, Attorney Ginn shall not accept any new clients.
From the date of this Order, and until further order of this Court, Attorney Ginn shall not exercise control over his IOLTA accounts and/or operating accounts.
In furtherance of this agreement, Attorney Peter Marchesi of Waterville Maine has agreed to assume responsibility and control or Attorney Ginn’s IOLTA accounts and operating accounts, and shall net as Court–appointed Receiver during the period of suspension. Attorney Marchesi may confer with Special Counsel Angela Morse regarding receivership duties. Plaintiff and Attorney Ginn agree to this arrangement, and the Court Orders that Attorney Marchesi become and remain named as a signatory on Attorney Ginn’s IOLTA accounts and operating accounts, and assume responsibility for and control over Attorney Ginn’s IOLTA accounts and operating accounts. Attorney Marchesi’s service does not create an attorney–client relationship between Attorney Marchesi and Attorney Ginn, nor does it create an attorney-client relationship between Attorney Marchesi and any of Attorney Ginn’s clients.
Attorney Ginn has represented that as of the date of this Order his IOLTA account contains only client funds, and that it contains all funds to which any client is or may be entitled. The Plaintiff and the Court have relied on that representation in reaching agreement and approving this Order.
The Court further Orders that Attorney Ginn shall close his law office(s), cease practicing law, and cease operations of any and all of his websites, Facebook/social media account(s) and any other form of advertising of his legal services during the period of his suspension. The aforesaid provision is effective as of the date of this Order except that Attorney Ginn may finish the matters in which he is representing clients pro bono, and the interim suspension of his license will take effect on March 5, 2021. Attorney Ginn is prohibited from receiving any legal fees or client funds as or the date or this Order. Attorney Ginn has represented that all matters on which he will work between the date of this order and the effective date of suspension are pro bono. The Plaintiff and the Court have relied on that representation in reaching agreement and approving this Order.
Subject to any further order of this Court, and subject to the provisions of this Order, the period of this interim suspension shall be from the above-stated effective time/date of 5:00 p.m. on Friday, March 5, 2021, through final disposition by the Court of Bar 20–11 Board of Overseers of the Bar v. Clifford M. Ginn, Esq. The period of this interim suspension may be credited to Attorney Ginn at the discretion of the Court in the event final disposition of Bar 20–11 results in any sanction of suspension to be served.
In the event Attorney Ginn receives any fees after February 5, 2021, for services Attorney Ginn provided on or before that date, Attorney Ginn shall notify Plaintiff and said funds shall be deposited into Attorney's Ginn's operating accounts and/or IOLTA accounts for further disposition by the Receiver, Peter Marchesi.
Additionally, Attorney Ginn shall keep and maintain all client contacts and records m electronic storage and shall provide access to such client contacts and records, including all necessary login and password information, to the Court–Appointed Receiver, Attorney Peter Marchesi, as of the date of this Order. He shall also cooperate with the Court's Receiver, Attorney Marchesi in all aspects so as to protect the interests of his clients. Finally, as of the date of this Order Attorney Ginn will not access client files or records, except (i) with respect to the pro bono matters referenced in Paragraph 7, up to the date of suspension of March 5, 2021; (ii) for the purposes of his compliance with Bar Rule 31 and cooperation with Attorney Marchesi and only with prior notice to, and approval of, Plaintiff and under the supervision of Attorney Marchesi, and (iii) as reasonably necessary for purposes of addressing issues in Bar 20–11.
Attorney Ginn shall also ensure that communications are available directly between the relevant banking entities and Attorney Marchesi, without any intervening steps required by Attorney Ginn. In particular, Attorney Ginn will ensure that when any access code(s) are required by the relevant banking entities to access account(s), those codes will be sent directly by the bank to Attorney Marchesi.
Attorney Ginn is prohibited from removing from his law office, client files, or from the possession or control of the Receiver any funds, files, data, check books. financial records/bank information, client property, computer hardware/software or any client related or law office related items, from the date of this order until the interim suspension is effective and for the length of any time period that he may be suspended in BAR 20–11. Thereafter, Attorney Ginn will only access the aforesaid information in accordance with the provisions of a duly-approved and executed law office practice management contract referenced in paragraph 14.
lf Attorney Ginn receives any direct or indirect client communication relating to legal representation or legal advice on his personal cell phone, email or other platforms. he shall immediately direct the persons making communication to the Receiver and take no further action with regard to clients, client files or the communicating person.
Before Attorney Ginn may be reinstated to practice, he will present Plaintiff with the name of a practice monitor, approved by Plaintiff, und will obtain an evaluation and contract for law practice management assistance approved by Plaintiff.
Finally, from the date of this Order and during this interim suspension or any other suspension imposed in BAR 20–11. Attorney Ginn is prohibited from service in a professional capacity as a fiduciary and he is ordered to relinquish any such position as a fiduciary and take steps to receive any discharge from such fiduciary service.
Dated February 8, 2021
Hon. Dan Driscoll
Single Justice, by designation
Board of Overseers of the Bar v. Seth T. Carey
Download Bar-20-14 Order Signed By Justice Warren
Docket No.: BAR-20-14
Issued by: Maine Supreme Judicial Court
Date: February 23, 2021
Respondent: Seth T. Carey
Bar Number: 009970
Order: Order
Disposition/Conduct: Confidentiality, Safekeeping property, Meritorious claims, Fairness to opposing party and counsel, Conduct prejudicial to the administration of justice.
Before the court is a stipulated report of findings and order of the Grievance Commission in Grievance Commission Docket Nos. GCF # 17–239 and 19–101, which proposes an eight month suspension of Seth T. Carey’s license to practice law with that suspension to run concurrently with the suspension previously imposed by this court in Docket Nos. BAR–16–15 and BAR–18–04. That suspension is subject to the approval of the court pursuant to M. Bar R. 25(a).
The order assigning this matter directed the court to consider whether the provision in M. Bar R. 25(c) that review for approval of the sanction may be sought "as permitted by these rules" contemplated an additional procedure such as the filing of an information pursuant to M. Bar R. l 3(g). After hearing from Bar Counsel and reviewing the June 2015 Reporter’s Notes, the court concludes that the only procedure necessary is the procedure for set forth in Rule 25(a) whereby the court shall review and either approve or reject the sanction of suspension that has been reached by agreement of respondent, Bar Counsel, and the Grievance Commission.
In this case the court has reviewed the stipulated findings, agreed to by respondent Carey, with respect to the specified violations of M. R. Prof. Conduct 1.6(a), 1.15(f), 3.l(a), 3.1(b), 3.4(c), and 8.4(d) and approves the sanction of suspension determined by the Grievance Commission. Accordingly, Seth T. Carey’s license to practice law is suspended for eight months, commencing today. That suspension will run concurrently with the suspension previously imposed upon Mr. Carey in BAR–16–15 and BAR–18–04.
Dated: February 23, 2021
Thomas D. Warren
Justice, Superior Court
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: GFC 19-489
Issued by: Grievance Commission
Date: March 10, 2021
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Reinstatement Not Recommended Findings and Conclusions
Disposition/Conduct: Reinstatement Not Recommended - Findings and Conclusions
Petitioner Gary M. Prolman ("Petitioner" or "Prolman" ) has petitioned for reinstatement to the Maine Bar, pursuant to Maine Bar Rule ( "M.Bar.R.") 29, following a disciplinary suspension of more than six months. The Board of Overseers of the Bar, through Bar Counsel, filed a timely objection to Prolman’s reinstatement and the matter was scheduled for a contested hearing before a panel of the Grievance Commission. The duly-noticed hearing on Prolman’s petition was conducted via video conference on August 20, August 21, September 16, and September 17, 2020. Petitioner attended all four days of the hearing and was represented by Mark Franco, Esq. The Board was represented by Assistant Bar Counsel Justin Andrus, Esq.
I. PRIOR DISCIPLINARY HISTORY
A. First Suspension and Reinstatement
Prolman was admitted to the Maine Bar in 1991, where he primarily engaged in a solo practice focusing on state and federal criminal defense work, with some handling of family law matters and work advising small businesses.
See Findings, Conclusion, and Order, Board of Overseers of the Bar v. Gary M. Prolman, BAR-14-12, at 4-5 (March 7, 2016) ("2016 Reinstatement Order" ) (Board Exh. 901). 1 He was first suspended from the practice of law on June 23, 2014, after a felony conviction for Conspiracy to Launder Money and Aiding and Abetting in violation of 18 U.S.C. § 1956(a)(l) and (h) and 18 U.S.C. § 1957(2), resulting from a guilty plea. See 2016 Reinstatement Order, at 9-11 (Board Exh. 901); see also Order of Suspension, Board of Overseers of the Bar v. Gary M. Prolman, BAR–14–12 (June 23, 2014).
For many years prior to the events leading to his conviction, Prolman regularly used cocaine and sometimes drank alcoholic beverages excessively, with his cocaine use becoming more regular by 2012. At some point in 2012, Prolman’s cocaine dealer introduced him to David Jones, who he soon learned was an illegal drug dealer, primarily involved in sales of large quantities of marijuana. Prolman agreed to assist Jones in incorporating certain business ventures and acquiring real estate for them. He was paid in cash for these legal services. Subsequently, Prolman accepted Jones’ offer to infuse funds into a sports agent business Prolman had started, as well as a separate real estate venture. Prolman accepted $127,875 in cash from Jones, which he deposited into different banks in small amounts so as to avoid federal cash source reporting requirements. He later accepted an additional $50,000, which had been delivered to him by Jones’ girlfriend, in cash. Prolman’s plea
1 The Panel has taken judicial notice of all the prior disciplinary decisions relating to Petitioner, without objection.
eventually acknowledged participation in a felony–level conspiracy to launder $177,500 worth of marijuana trafficking proceeds received from Jones or Jones's girlfriend. 2016 Reinstatement Order, at 7–10 (Board Exh. 901).
Petitioner was sentenced to twenty–four months' imprisonment, to be served at a federal facility in Lewisburg, Pennsylvania, with an additional twenty–four months of supervised release. Mr. Prolman completed a 500–hour Residential Drug Abuse Treatment Program while in prison and was discharged to the supervision of Pharos House in Portland in October, 2015, for community confinement after only approximately nine months in Lewisburg. While at Pharos House, Prolman was subject to testing for alcohol and drugs and he continued to engage in substance abuse counseling. Prolman was released to home confinement with monitoring and reporting in February, 2016, and his supervised confinement ended in May, 2016, when his twenty–four month period of supervised release commenced. 2016 Reinstatement Order, at 11–14 (Board Exh. 901).
In November, 2015, the Board filed a motion seeking further discipline against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. See Board of Overseers of the Bar v. Prolman, 2018 ME 128, 1 3 (Board Exh. 906). After hearing before a Single Justice of the Maine Supreme Judicial Court (Alexander, J. )), Prolman was reinstated to the practice of law, conditioned on various items including: (a) compliance with all the terms and conditions of his federal sentence and community release and (b) continued engagement in substance abuse counseling and treatment to the satisfaction of the Board of Overseers of the Bar for a period of at least four years after the termination of any supervision pursuant to his federal sentence and community release. 2016 Reinstatement Order, at 24–25 (Board Exh. 901). Prolman's reinstatement was effective July 1, 2016. The conditions of Prolman's supervised release included no use or possession of any controlled substance, alcohol, or other intoxicant and no association with known felons except for business purposes. See Findings, Conclusions and Order, Board of Overseers of the Bar v. Gary M. Prolman, BAR–14–12, at 2–3 (September 14, 2017) ( "2017 Suspension Order" ) (Board Exh. 905).
B. Second Suspension
On April 17, 2017, less than a year after Prolman’s reinstatement, a client of Prolman’s filed a complaint with the Board. The Board, in turn, filed a Petition for Immediate Interim Suspension against Petitioner on May 26, 2017. After a contested, three–day hearing before Justice Alexander, the Court made the following salient findings: Prolman represented or advised the female complainant in connection with three criminal matters in 2016–2017. In one of these matters, Prolman secured early termination of the client's probation, to be effective in June, 2017, so long as she complied with her terms of probation until then, including the condition that the client not consume alcohol. This probation, and related participation in a closely–supervised diversion program, had been part of the client’s sentence for a felony drug conviction. Another matter the client discussed with Prolman related to the client’s status as a sex trafficking victim. In addition, during the time period that Prolman was representing her, the client lived in Topsham with a boyfriend. This individual was controlling and abusive and he assaulted the client on more than one occasion. Despite the involvement of law enforcement, these assaults were not prosecuted because the client refused to testify against her boyfriend. The situation culminated in a March, 2017, incident where the client sustained serious injuries, including broken bones in her face and marks on her throat due to an attempted strangulation. The Sagadahoc County authorities were concerned that the boyfriend, who had been arrested and held as a result of the incident, would soon return to the shared apartment, and believed the client needed to find other accommodations.
Prolman, who was in the process of returning from a vacation in Florida, spoke to the client on several occasions about the situation. Prolman also spoke with the Sagadahoc County Sheriff’s Deputy who was the client’s diversion supervision officer and told him that there was an apartment above his Saco law office where the client could stay. The Court found that Prolman conveyed the impression to the Deputy that the apartment was vacant and that the client would be living there by herself until she could find a permanent solution. Based on this, the Deputy agreed to place the client in the apartment.
Contrary to the impression given to the Deputy, Prolman was living in the three–bedroom apartment and a third person, who was not present at the time,
was also living there. The apparent plan was that the client would occupy the third bedroom and share common areas with the others, including a bathroom next to Prolman’s bedroom.2 Had the client’s diversion officer known Prolman was living at the apartment, she would have terminated the living arrangement. Similarly, Prolman’s federal probation office would have objected to Prolman allowing the client, with a felony drug conviction, to live with him. Prolman did not voluntarily disclose the co-habitation to either officer.
Prolman returned from Florida either late on the day the arrangements were made for the client to move into his apartment, or the next day. Upon his return, he secured a cell phone for the client through his own cell phone account and assisted her in obtaining a waitressing job. At all relevant times, Prolman was aware of his client's history, abuse by and submissiveness to men, and her vulnerability to abusive physical and sexual relationships. Despite this:
On more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman’s sexual acts as "gross. " While she did not consent, she also did not object to Prolman’s sexual acts, simply submitting to what Prolman demanded – "I went along with it" – as she had done in past relationships with men who had taken advantage of her vulnerabilities.
2017 Suspension Order, at 11-12 ( ¶26) ( Board Exh. 905). It should be noted that this sexual contact occurred between two to fourteen days after an
2 Also present in the building's basement was a brewery and tasting room, the staff of which regularly accessed the apartment's kitchen and laundry facilities.
incident when the client had been brutally assaulted, strangled, and had her nose broken.
On April 10, 2017, the client was able to obtain a vehicle with the assistance of her employer. That evening, Prolman prepared dinner for the client, during the course of which he provided wine, which they shared. He then approached the client in her bedroom and attempted to initiate sexual relations, which she refused. The next day, April 11, the client moved out. Shortly thereafter, she terminated their remaining attorney–client relationship. Prolman then filed a motion to withdraw in the matter involving early termination of the client's probation. In his motion, he represented to the Court that the client was in compliance with the terms of her probation and that early termination of that probation could proceed without further appearance of counsel. 2017 Suspension Order, at 13–14 ( ¶ 34).
At the 2017 hearing, Prolman denied that he had any sexual contact with the client. He claimed that he asked the client to leave the apartment because he learned she was using illegal drugs and that the accusations of sexual misconduct were a contrivance. The Court found that the evidence, as a whole, did not support Prolman’s version of events and ultimately concluded that the Board had proven, by clear and convincing evidence, that the client's version of events was true. 2017 Suspension Order, at 16-17 ( ¶36 ).3
The Court found that the Board proved violations of Maine Rules of Professional Conduct ("M.R.Prof.C. ") 1.7(a)(2), 2.1, 8.4(a), and 8.4(d), as well as the attorney’s oath, and imposed a six–month suspension. The specific conduct providing the basis for this discipline was:3 Prolman continues to deny that he had sexual contact with this client, but the Court's finding is binding on this panel.
1. Arranging for a vulnerable client, with a history of physical and sexual abuse by and submissiveness to men she was living with, to move in with him and not disclosing this living arrangement to the client’s diversion officer and others supporting her effort to comply with her terms of probation ... Creating this living arrangement, with this client, was a serious error of judgment. Not disclosing to the client or her support team that the offered apartment involved moving in with him was a failure to render candid advice ....
2. Initiating and engaging in a sexual relationship, including performing sex acts on more than one occasion, with a client he knew to be vulnerable and submissive ... In initiating the sexual gratification ahead of his client's interests ....
3. Consuming alcoholic beverages and providing alcoholic beverages for consumption to his client. While the Court’s March 7, 2016, order prohibited only "excessive" consumption of alcoholic beverages, that order also required compliance with the conditions of Prolman’s federal sentence. The federal probation conditions prohibited any possession or use of alcoholic beverages. Thus, Prolman’s consumption of alcoholic beverages violated this Court's order, and violated Rule 8.4(d) prohibiting conduct "prejudicial to the administration of justice. " Providing alcoholic beverages to his client caused the client to violate her conditions of probation, placing her freedom and the early termination of her probation at risk. This also violated Rule 8.4(d). And providing alcoholic beverages in those circumstances certainly was not acting toward the client using the best of Prolman’s knowledge and discretion, as required by the Attorney’s Oath.
2017 Suspension Order, at 26–27 (Board Exh. 905). The Court ordered the six month suspension to commence on November 1, 2017. Id. at 30.
Pursuant to the Maine Bar Rules, an attorney whose license is suspended for six months or less maybe reinstated at the end of the period of suspension by submitting an affidavit stating the attorney has complied with
the requirements of the suspension order and paid all required fines and costs. M.Bar.R. 28. In contrast, an attorney whose license is suspended for more than six months must go through the same reinstatement process as a disbarred attorney, establishing each of the eight criteria in Maine Bar Rule 29(e) through clear and convincing evidence.
The Board appealed Justice Alexander’s imposition of a six–month suspension. The Maine Supreme Judicial Court unanimously agreed that this discipline was not sufficiently severe: "We all agree that the sanctions imposed were simply insufficient and represent an abuse of discretion .... Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to reapply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney. " Prolman,/i> 2018 ME 128, ¶ ¶ 25–26 (Board Exh. 906). Three justices of the six–justice panel (Jabar, J., Mead, J., and Hjelm, J.), reasoned that the Single Justice should have applied the American Bar Association’s Standards for Imposing Lawyer Sanctions (Am. Bar Ass’n 1992) (ABA Sanction Standards) in deciding the appropriate sanctions for Prolman’s violations. The other three justices (Saufley, C.J., Gorman, J., and Humphrey, J. ( concluded that it was not necessary– to find that the ABA Sanction Standards should have been applied to conclude that the sanction of six months was inappropriate:
When an attorney has been sentenced to federal prison for using his legal talents to commit serious crimes, and upon reinstatement to the Bar engages in behavior that is abhorrent to the profession, including taking sexual advantage of a client he knew to have been the victim of
sex trafficking, a six–month suspension, requiring no demonstration of rehabilitation in order to return to the practice of law, is plainly and compellingly insufficient.
The history of Prolman’s actions as an attorney is particularly important in this case. Prolman is apparently a very skilled persuasive attorney. He used those considerable talents to engage in a course of conduct through which he laundered money for his clients in the drug trafficking business. For that behavior, he was sentenced to two years in federal prison, followed by two years of supervision. His license to practice law was suspended indefinitely. After he was released from prison, the court lifted that suspension and allowed Prolman to return to the practice of law.
Within a year after recovering his privilege to practice law, Prolman engaged in the conduct that brings this appeal before us. Again, he was able to successfully assist his client in several matters, and again he engaged in completely unacceptable behavior....
The error in the court's selection of a sanction does not lie in the failure to identify and analyze a lengthier list of factors to consider. The error lies in the sanction's brevity and its failure to require a substantial improvement in Prolman’s understanding of the trust that the public reposes in an attorney. At base, the brief six–month suspension substantially minimizes the seriousness of the conduct in which Prolman was found to have engaged.
...We should say clearly that it is an abuse of discretion to impose a six– month period of suspension on an attorney who has sex with a vulnerable client who he knows has been the victim of sex trafficking and domestic abuse. We should say that with even more certainty here, where the attorney who committed these wrongs had recently been reinstated to the Bar following a two–year suspension arising out of felony convictions.
We would conclude that the court committed no error of fact or law, but that the sanction imposed in wholly insufficient to protect the public and it therefore an abuse of discretion.
Prolman, 2018 ME 128, ¶ ¶54-59 (Board Exh. 906). 4
4Although Justices Jabar, Mead, and Hjelm felt the ABA Sanctions Standards should have been applied, they made clear their agreement with the conclusion articulated by their colleagues that the court abused its discretion and that the six–month
After the Supreme Judicial Court issued its decision, Prolman filed a motion for relief from judgment claiming he had unearthed newly–discovered evidence, in the form of several witnesses who were prepared to attack the credibility of the client at issue in the 2017 proceeding, as well as the substance of her testimony. In the course of pursuing this motion, he texted the following comment about the client to a third–party: "...we will get that lying skank ... trust me! " Board Exhibit 802.5 He later noted to the same individual that the client would "get what’s coming to her". Id. After an evidentiary hearing on April 23, 2019, the Court denied the motion for relief. The Court noted, on the record, that some of the information offered actually reinforced certain of its original conclusions. 2019 Sanctions Order (Board Exhibit 909(, at 2–3.
On remand on the sanctions issue, the Single Justice engaged in an extensive analysis of other disciplinary cases and sanctions. The Court examined the relative aggravating and mitigating circumstances present in Prolman’s case, along with other relevant factors, including the fact that, at that point, Prolman had already served the original six–month suspension. The Court then amended its original sanction and imposed a two–year suspension, with all but nine months suspended, under the condition that Prolman engage in counseling regarding boundary issues and engage in ethics training and
suspension, requiring no substantive demonstration prior to a return to practice, was insufficient to protect the public. Prolman, 2018 ME 128, ¶ 46 n. 10
5Similarly, in a voice mail left with the same third-party later in 2019, Prolman references the client as a "fraudulent bitch". Board Exh. 110.
counseling with particular emphasis on issues regarding client communications and relationships, and what the rules of ethics require in terms of those relationships. See Sanctions Order, Board of Overseers of the Bar v. Prolman, BAR–14–12 (July 8, 2019) (Alexander, J. ) ( "2019 Sanctions Order") (Board Exh. 909). Prolman’s additional three months of suspension began on October 1, 2019. Order, Board of Overseers of the Bar. v. Prolman, BAR–14–12 (July 22, 2019) (Alexander, J. ) (Board Exh. 910). Neil Weinstein, Esq. was appointed receiver of Prolman’s law practice. Order for Appointment of Receiver, Board of Overseers of the Bar v. Prolman, BAR–14–12 (September 18, 2019) (Petitioner’s Exh. 73).
II. REINSTATEMENT
A. Governing Standard
In order to recommend reinstatement in this matter, this Panel must find that Prolman established, by clear and convincing evidence, that he meets each of the criteria set forth in Maine Bar Rule 29(e) or, if not, that there is a good and sufficient reason why the Petitioner should nevertheless be reinstated. To meet the clear and convincing evidence standard of proof, the party bearing the burden of persuasion may prevail only if that party can "place in the ultimate factfinder an abiding conviction" that the truth of their factual contentions is "highly probable. " In re Estate of Home, 2003 ME 73 , ¶ 18 n. 1,822 A.2d 1177 (2003).
The criteria set forth in Rule 29(e) are as follows:
(1) the petitioner has fully complied with the terms and conditions of all prior disciplinary orders issued in Maine or in any other jurisdiction
except to the extent they are abated under Rule 30, unless such suspension, disbarment, or discipline is solely the result of reciprocal action resulting from disciplinary action taken by Maine authorities;
(2) the petitioner has not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment;
(3) if the petitioner was suffering under a physical or mental disability or infirmity at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the petitioner's misconduct, the petitioner shall not be reinstated unless:
(A) the petitioner has pursued appropriate rehabilitative treatment;
(B) the petitioner has abstained from the use of alcohol or other drugs for at least one year; and
(C) the petitioner is likely to continue to abstain from alcohol or other drugs;
(4) the petitioner recognizes the wrongfulness and seriousness of the misconduct for which the petitioner was suspended or disbarred;
(5) the petitioner has not engaged in any other professional misconduct since suspension or disbarment;
(6) notwithstanding the conduct for which the petitioner was disciplined, the petitioner has the requisite honesty and integrity to practice law;
(7) the petitioner has met the CLE requirements of Rule 5 for each year the attorney has been suspended or disbarred, but need not complete more than 24 hours of approved credit hours for that entire period of absence from practice, provided that (i) no more than one half of the credit hours are earned through self study; (ii) at least two credit hours are primarily concerned with the issues of ethics or professionalism; and
(iii) at least two credit hours are primarily concerned with issues of recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law; and
(8) In addition to all of the requirements in this provision, the attorney shall comply with Rule 4(a) and (b), and remit to the Board an arrearage registration payment equal to the total registration fee that the attorney would have been obligated to pay the Board under Rule 4(a) and (b) had the attorney remained actively registered to practice in Maine.
The Board stipulated that, as of the time of the hearing, Prolman had complied with the requirements of Bar Rule 29(e)(7) and (8).
B. Findings and Conclusions
(1) M.Bar.R. 29(eH1): Compliance with Terms and Conditions of Prior Disciplinary Orders
(a) 2016 Reinstatement Condition: Four years of substance abuse counseling and treatment:
Pursuant to the terms of the 2016 Reinstatement Order (Board Exh. 901),6 Prolman’s 2016 reinstatement was conditioned, in part, on:
Continued engagement in substance abuse counseling and treatment to the satisfaction of the Board of Overseers of the Bar for a period of at least four years after the termination of any supervision pursuant to his federal sentence and community release.
Prolman’s period of probation ended on May 5, 2018.
Based on the evidence presented, the Panel finds as follows: Prolman completed an intensive, nine and a half–month residential substance abuse program while in federal prison. Prolman also completed the follow up and/ or community components of that treatment program, see Pet. Exh. 15, while he was under supervised confinement at Pharos House. See Pet. Exhs. 16–17. There is no evidence in the record that Prolman engaged in any additional substance abuse counseling or treatment after he left Pharos House in May, 20 16,7 despite the fact that Justice Alexander had conditioned his 2016
6 No evidence was offered at the Hearing that any portion of the 2016 Reinstatement Order was abated or modified by the Court. M.Bar.R. 30.
7 As will be discussed below, Prolman sought evaluation and counseling from Elise Magnuson, PsyD., LCSW, but that counseling did not address substance use.
reinstatement on participating in such counseling/treatment for four years after the end of his probation, or until May 8, 2022. No evidence was offered that the Court abated or modified this reinstatement condition and nothing in the 2017 Suspension Order or the 2019 Sanctions eliminated this condition.
At the reinstatement hearing, Prolman emphasized several times that the 2017 suspension did not involve the use of illegal drugs or excessive consumption of alcohol by him and minimized the role of alcohol in his 2017 violations. Although excessive drinking may not have been involved in the 201 7 suspension, the conduct that led to that suspension involved a failure to observe the boundaries around alcohol use that were in place in both Prolman’s probation conditions and the probation conditions of his client. See also M.Bar.R. 29(e)(3) ( "Where alcohol and other drug abuse was a causative factor in the petitioner's misconduct, the petitioner shall not be reinstated unless ... the petitioner has pursued appropriate rehabilitative treatment .... " ). Prolman’s failure to complete the substance abuse counseling required by the 2016 Reinstatement Order and his inability to maintain important boundaries around alcohol in 2017 cannot be said to be unrelated.
In short, Petitioner has failed to prove by clear and convincing evidence that he complied with the substance abuse counseling provision of the 2016 Reinstatement Order.
(b) 2016 Reinstatement Order: Association with Felons
The evidence at the hearing demonstrated that Prolman invited individuals serving felony convictions at Lewisburg to contact him upon their release. He
did this despite the fact that his probation conditions prohibited him from associating with known felons. At least two individuals did, in fact, contact him and he willingly associated with them, at least in part during his probationary period. Although Petitioner justified this association because he was "helping them out", doing so crossed a boundary set by his federal probation conditions. Based on this evidence, the Panel finds that Petitioner did not prove, by clear and convincing evidence, that he met the 2016 Reinstatement condition that he comply the requirements of his federal probation. (c) Receivership Order
The Board has taken the position that the Court’s September 18, 2019, Order for Appointment of Receiver ( "Receivership Order") qualifies as a "prior disciplinary order" and that Prolman failed to comply with the order. The Panel finds that the Receivership Order was directed at Neil Weinstein, Esq., the appointed receiver in this matter, not Prolman. To the extent that the provisions of the Receivership Order were not strictly met, the onus was not on Petitioner to ensure they were met. Therefore, the Panel does not consider proof of compliance with the Receivership Order part of Prolman’s burden in establishing compliance with prior disciplinary orders.8
(d) 2019 Conditions: Counseling/ training
In his 2019 Sanctions Order, the Court imposed the following sanction:
8 That is not to say that Prolman’s conduct or interactions with the Receiver are not relevant to other aspects of this proceeding.
... a suspension of two years with all but nine months suspended, with the suspended portion to be served subject to conditions to engage in counseling regarding boundary issues, and to engage in ethics training and counseling with particular emphasis on issues regarding client communications and relationships and what the rules of ethics require in terms of those relationships.
The Panel reads the Order to require Petitioner to continue to engage in counseling and training throughout the entirety of the suspended portion of his suspension, i.e. through September 30, 2021. In other words, the Court allowed Prolman to practice during that fifteen months, but only if he was in counseling throughout that period with respect to the issues listed. Prolman was placed under similar requirements in connection with his federal probation after the 2017 suspension, which he completed by attending regular counseling with Elise Magnuson, PsyD., LCSW, until his probationary period ended. See discussion of counseling with Dr. Magnuson, infra.
Prolman has failed to demonstrate that he is in compliance with the 2019 counseling conditions, for multiple reasons. First, at the time of the hearing, he had not attended any sort of counseling since he last saw Dr. Magnuson in December, 2019.9 Second, the 2019 Sanctions Order requires counseling with respect to both boundary issues AND client communications and relationships and what the rules of ethics require in terms of those relationships. Apart from the completion of 9–10 hours of CLE, half of which were self–study,10 Prolman
offered no evidence that he has engaged in counseling with respect to client communications and relationships and what the rules of ethics require.11 While Dr. Magnuson may be skilled in assisting with boundary issues, which is discussed in more detail below, she was not established to have expertise with respect to the ethical rules governing attorneys or the standards governing client communications and relationships.9To the extent Prolman argues he no longer needs counseling on the relevant issues, the evidence at hearing did not support this assertion.
1 0 Five of these hours were self–study in seminars entitled "Lying, Loyalty, and Lots of Ethics Rules" (completed before the date of the 2019 Sanction Order), "Keeping Client Trust Even When Things Go Wrong", "Sexual Harassment: Understanding,
For these reasons, Petitioner has failed to establish, by clear and convincing evidence, that he is in compliance with the counseling conditions of the 2019 Sanction Order.
(2) M.Bar.R. 29(e)(2): Engagement or Attempted Engagement in the Unauthorized Practice of Law During the Period of Suspension
As a result of the 2017 Suspension Order, Prolman’s license was initially suspended from November 1, 2017, until May 1, 2018. The evidence presented at hearing was that Prolman complied with the terms of M.Bar.R. 31 in connection with this suspension, and, in conjunction with input from Bar
Preventing, and Correcting", "Stuart Teicher Takes a Trip and Teaches about Misconduct", and "Law and the Good Life". Petitioner also completed five live CLE hours relating to harassment and discrimination and one live hour attending "Law and the Good Life". See Pet. Exh. 3(h). Three of the nine hours were ethics hours. Beyond the titles, no information was provided about the content of these seminars and how they comprised training that complied with the Court’s order. Petitioner’s testimony focused more on the volume of the hours than the relevance of the seminars to the issues he was ordered to address.
11 The only reference to the seminars in Dr. Magnuson's notes is a note that Petitioner informed her that he was taking CLE relating to harassment and discrimination and another note that Petitioner felt a particular CLE involved "man-bashing" and "no grain of truth". This last note was dated December 11, 2019, the same day he executed his final affidavit in support of his reinstatement. See Board Exhibit 202; Pet. Exh. 3.
Counsel, wound down his practice and abstained from the practice of law during that period.
As a result of the 2019 Sanctions Order and the Receivership Order, Prolman was again required to cease practice, effective October 1, 2019, and his practice was placed under the control and supervision of Attorney Weinstein. Attorney Weinstein, Petitioner, and Petitioner’s longtime assistant testified as to the steps taken to transfer control of Prolman’s practice to the Receiver in compliance with the Receivership Order. The Receiver testified that Prolman had done everything the Receiver considered necessary to comply with the Receivership Order and that, to his knowledge, Prolman had not engaged in, or attempted to engage in, the practice of law during his suspension.
The Board took issue with whether there had been strict compliance with certain provisions of the Receivership Order. The first question involved the requirement that the Receiver obtain signatory authority over all Prolman law office bank accounts. The Receiver examined Petitioner’s IOLTA account and found there were no funds in the account and it appeared the account had been dormant for years. There was also an operating account that Attorney Weinstein testified was used by Petitioner to pay expenses relating to his Saco building, which housed his law office and other businesses. He testified that no lawyer funds relating to active cases were being deposited into that account and that it was being used strictly to pay building–related expenses. The Receiver did not interpret the Receivership Order as mandating that he obtain signatory authority of these accounts if he determined, in his discretion as
Receiver, that it was not warranted. Despite questions about the propriety of leaving those accounts in Petitioner’s control, no evidence was introduced that he actually used these accounts to engage in the unauthorized practice of law after his suspension.
With respect to the requirement that the Receiver obtain access to Prolman’s mobile devices, Attorney Weinstein did not interpret that term to include cell phones and he did not take control of Prolman’s phone. No evidence was introduced that Mr. Prolman used his cell phone to engage in the unauthorized practice of law after his suspension.
Finally, the Receivership Order requires the Receiver to secure the files of the Prolman law office. The testimony at the hearing was that Attorney Weinstein has custody of all active files and that the others are in a secure facility to which the Receiver has exclusive access. Attorney Weinstein testified that, at some point after control of the files had been transferred, Prolman informed him that a client asked for her closed file. He testified that he asked Prolman to pick up the keys from him, retrieve the file from storage, and send the file to the client via overnight mail. As far as he knew, Prolman did this and returned the keys to the Receiver. This version of events comports with Prolman’s testimony to the Panel. Specifically, Petitioner testified that the client, L.L., discussed below, requested her file on November 20, 2019. According to Prolman, he then contacted the Receiver who asked him to get the file out of storage and send it. Prolman testified that he then performed the ministerial act of sending the file, as requested, with a simple enclosure letter,
and that he did not provide any legal advice in connection with the provision of the file.
An examination of the cover letter to L.L., in conjunction with the other evidence in the case, contradicts Petitioner’s characterization of the situation. See Pet. Exh. 55. The letter that Petitioner sent with the file materials is five paragraphs long. According to the letter, the client did not ask for her file. She asked for one particular document inside her file. Instead of just acting as a conduit for delivery of the material requested, as he told the Receiver, and as he told this Panel under oath, Petitioner analyzed the file and sent those portions of the file he determined she needed. He then made suggestions to L.L. as to what to review and advised her that certain missing information could be obtained by requesting a transcript of the relevant proceeding. At this point in his personal and professional relationship with L.L., she was angry with Prolman as to the result in the matter at issue and he was aware of it, as is discussed in detail below. The evidence supports a conclusion that, despite his suspension, Petitioner took L.L. ’s request for information as an opportunity to provide advice in conjunction with his ongoing efforts to control the situation with L.L., while not being upfront with the Receiver about exactly what he was doing. The Panel concludes that Petitioner's letter to L.L. contained legal advice.12 Based on this, the Panel finds that Petitioner has failed to prove, by
12Prolman’s denial, in the letter, that he is providing legal advice does not negate this conclusion.
clear and convincing evidence, that he did not engage in the unauthorized practice of law during his suspension.
(3) M.Bar.R. 29(eH3): Removal of Any Physical or Mental Disability or Infirmity/Alcohol
Prolman offered evidence of his counseling work with Elise Magnuson PsyD., LCSW,13 in support of restatement, in light of the counseling condition contained in the 2019 Sanctions Order. Prolman’s relationship with Dr. Magnuson began when the federal parole office overseeing his probation referred him to her for evaluation after the 2017 suspension of his license. Pertinent portions of her November, 2017, evaluation state:
...Mr. Prolman denies both the original charges (of money laundering) and having engaged in sexual behavior with his client. He has completed drug and alcohol treatment while in prison and participated in out-patient treatment. Mr. Prolman does not present with signs or symptoms of mental health problems. The testing did not find evidence of depression, anxiety, or bipolar disorders. It is highly likely he does not have a mental health problem that requires mediation or treatment.14
However, when looking at the behavior Mr. Prolman acknowledges engaging in, there appears to be a pattern of making very risky choices and not considering the potential damaging outcomes ... These situations [including bringing a client into his home] demonstrate a pattern of not paying attention to significant cues of potential problems for him.
Much of the documentation counters what Mr. Prolman said and suggest[s] he was not the "victim" in many of these situations. Even if he did not intend to cross legal or ethical boundaries, there is ample evidence that he did not pay attention to alarming factors and situations .... At minimum, Mr. Prolman continues to make risky decisions that have resulted in him making decisions that have negative consequences.
13 See Pet. Exh. 11 for Dr. Magnuson’s curriculum vitae.
14 Although she had not formally diagnosed him with the disorder initially, Dr. Magnuson testified at the reinstatement hearing that she would, in fact, diagnose Prolman as having narcissistic personality disorder. See infra.
It is likely that Mr. Prolman’s decision making was influenced by what he wanted to have happen, rather than being the result of others being "out to get" him. Mr. Prolman would benefit from therapy to address the thought patterns that underlie these decision-making processes. Some of these processes include hearing/ seeing what he wants to and disregarding warning signs. Others appear expecting not to have to follow rules (such as pointing out his rules of release required he not associate with felons outside of work). It is unclear if his desire to manage the impressions others have of him, such as being "the good guy" or "successful" have encouraged him to take unwise risks. His therapist should consider the way narcissistic patterns have been problematic in the past and continue to be so.
Board Exhibit 203, at 8. Prolman sought to have Dr. Magnuson complete the recommended therapy and she agreed. Prolman engaged in approximately six sessions of therapy with Dr. Magnuson from December, 2017, through April, 2018, ending therapy in conjunction with the end of his federal probation. See Board Exh. 202 (Dr. Magnuson note) ( "Doesn't wish to continue [treatment] - Reviewed when would need to return. ").
According to Dr. Magnuson, Prolman’s narcissistic thought patterns impact his feelings, behavior, decision–making, and interpersonal relationships. These narcissistic patterns are life–long and typically do not go away, but their impacts can be modified and lessened through therapy and related strategies. Dr. Magnuson testified that she considers all of Prolman’s past, problematic behaviors – the money laundering, cocaine use, and 2017 client–related misconduct– to be related to his narcissistic patterns. Dr. Magnuson also testified that, as a result of his narcissistic personality, Prolman feels a need to present himself in the best possible light at all times, including presenting descriptions of his own goodness that do not fully comport with the facts.
Dr. Magnuson’s initial work with Prolman focused on maintaining appropriate boundaries in the context of his interpersonal relationships, with emphasis on avoiding even the appearance of inappropriate sexual relationships with clients. See e.g. Petitioner’s Exhibit ( "Pet. Exh. ") 14. As part of his narcissistic personality disorder, Prolman’s strong desire to be seen as a "good guy" allows him to justify blurring the lines between attorney–client relationships and closer, more personal relationships. Petitioner struggled in counseling with the idea that, for him, the maintenance of healthy boundaries meant he would not be able to provide personal help to clients and others at the same level as in the past. To assist with this, Prolman and Dr. Magnuson worked on tools that could help him recognize and avoid troublesome situations and thought processes – so–called "stop signs". For example, Dr. Magnuson suggested meeting female clients during working hours only, when a staff person was also present in the office. Also, Petitioner was aware that he should treat his inclination to extend himself, financially or otherwise, to "save" people who are struggling, as a "stop sign", requiring him to avoid the situation or seek counseling with respect to whether his impulse is appropriate.15 Dr. Magnuson opined that any failure by Prolman to honor the stop signs flagged
during counseling and employ the strategies put in place creates the risk that he will again cross an inappropriate boundary with a client.15 Prolman told the panel at the reinstatement hearing that he had, in fact, implemented the strategies discussed with Dr. Magnuson, including keeping client relationships separate from personal friendships and avoiding meetings with his clients outside of his office, particularly after hours. See also Board Exh. 100, at 3, ¶7; id. at 4, ¶17 (Petition for Reinstatement); id. at 11, ¶ 24 (Final Affidavit of Gary M. Prolman).
In October, 2018, a couple of months after the Maine Supreme Judicial Court rejected the six–month suspension imposed by the Single Justice as too lenient, Prolman recommenced his sessions with Dr. Magnuson, seeing her approximately ten times between October 25, 2018, and May 23, 2019. The stated reason for returning to therapy was to deal with increased stressors in his life.16 Then, on October 15, 2019, Prolman returned to Dr. Magnuson to discuss the counseling requirements imposed by the 2019 Sanctions Order. During the October 15, 2019, meeting, Prolman and Dr. Magnuson "spent a lot of time" discussing whether Prolman needed further work on the issue of boundary maintenance. As a result of this session, Dr. Magnuson concluded that Prolman did not have a clinical need for counseling. Board Exh. 202, at 8. Prolman returned on November 3, 2019, and requested a letter to the Court outlining Dr. Magnuson’s opinion that their 2017–2018 work had adequately addressed Prolman’s boundary issues. Board Exh. 202, at 7; Pet. Exh. 14. Prolman had one last session with Dr. Magnuson on December 11, 2019. Board Exh. 202, at 6.17
16 The Court was under the impression, at the time of the 2019 Sanction Order, that Prolman’s voluntary counseling after the Law Court decision (issued in August, 2018) related to boundary issues. See Board Exh. 909, at 25. That does not comport with Petitioner's position in this reinstatement proceeding, which is that the boundary work was complete as of April, 2018. The counseling relating to boundary issues was also not voluntary. Rather, it was done at the behest of the federal probation office.
17Prolman testified at hearing that he did a "mountain of counseling". Prolman met with Dr. Magnuson about nineteen times over a two–year period.
Despite Dr. Magnuson's opinion of Prolman’s progress, as expressed in the fall of 2019, it became clear during the course of the hearing that Prolman is not as capable of recognizing boundaries and "stop signs" as he would have had Dr. Magnuson or the Panel believe.
Evidence was presented at the hearing about Petitioner’s relationship with L.L. L.L. is a long-time friend, and occasional client, of Prolman. She is one of the individuals who supported him in conjunction with his various disciplinary matters. Prolman admitted at hearing that he had a past sexual relationship with L.L., but testified that the sexual relationship did not overlap with any period of legal representation and that it ended in 2009. Prolman testified that he frequently gave funds to L.L. over the years to pay bills and meet other obligations, because she was often in difficult financial straits. He did not charge her for legal representation. See e.g. Board Exhibit 1000, at 2 ( "I did not charge her as she and her family have been on subsidized housing for years."(.
In 2018, L.L. was an active client of Prolman’s from July 9th through the end of the year, in connection with two separate matters: (1) a burglary/ theft by unauthorized taking charge in Cumberland County and (2) a speeding ticket. During this time frame, Prolman made six separate payments to L.L. from his firm account that totaled $1,650. These payments were recorded on the checks as payments for cleaning; an exhibit submitted by Prolman to the Panel represented the payments were for cleaning, Pet. Exh. 69; and Prolman also so
testified.18 This was all after Prolman had completed his counseling with Dr. Magnuson, where he told the Panel he had learned: (1) that it was important for him to keep attorney–client relationships separate from closer, personal relationships and (2) that he should see situations where he is inclined to extend financial help to struggling clients as a red flag, requiring caution and perhaps counseling.
In 2019, Prolman represented L.L. in multiple criminal matters. L.L. was an active client of Prolman’s for the entire first half of 2019, extending through August 19, 2019, in connection with the following: (1) the speeding ticket matter that had commenced in July, 2018 (active 7/6/2018–1/9/2019); (2) charges of Aggravated OUI and Endangering the Welfare of a Child (active 12/6/2018–8/19/2019); and (3) a speeding and failure to display inspection ticket matter (active 2 /17 /2019–5/14/2019). See Pet. Exh. 67.
As noted above, one of the strategies Prolman testified he had put in place as a result of his work around boundaries was to meet with clients at his office, during office hours, preferably with his assistant present, and to avoid making himself available after hours. On March 12, 2019, while L.L. was a client, Prolman and L.L. had a text exchange at 7:17 p.m. in which Prolman asked her whether she wanted to "come over". Board Exh. 802, at 4. On March 31, 2019, he again contacted her via text to see if she wanted to meet at 9:30 p.m. Board Exh. 802, at 12. On April 5, 2019, Prolman texted L.L. and proposed
meeting her at 8 p.m. to discuss her case and the hearing on his motion for relief from judgment. Board Exh. 802, at 17.19 On May 23, 2019, Prolman and L.L. communicated, via text, about meeting at approximately 10 p.m. so Prolman could congratulate her on her job "properly". Board Exh. 803, at 49,20 On May 26, 2019, they were arranging to meet at Prolman’s house at around 6:30 p.m. Board Exh. 803, at 51. On June 11, 2019, they arranged to meet at 6 p.m. Board Exh. 803, at 55. On June 17, 2019, L.L. texted Prolman at 6:39 p.m. that she was on her way to meet him and was close. Board Exh. 803, at 56.21 On June 20, 2019, they had a text exchange at 8:29 p.m. about getting together later that .eve n i n g. Board Exh. 803, at 57. A June 22, 2019, text exchange indicated that they were getting together at 6:21 p.m. Board Exh. 803, at 60.18 As discussed below, the evidence appears to indicate that L.L. did not actually engage in cleaning for Prolman as represented, but that he would use money in his cleaning budget for the office to pass her funds.
19 On April 24, 2019, L.L. and Prolman have a set of text exchanges relating to a urinalysis done in relation to L.L.'s pending Aggravated OUI. L.L. states " there is cocaine in my system but I'm sure you're ready [sic] knew that". Board Exhibit 803, at 4. By May 10, 2019, Prolman had the test result indicating cocaine in her system at the time of the test in December, 2018. Id. at 19. There is no indication in the parties’ text exchanges that knowledge of her substance use generated a red flag for Prolman at the time or had any impact on his ongoing relationship with L.L.
20 On this same date, Prolman wrote a check for $250 to L.L. for "cleaning". Pet. Exh. 69. The text exchanges between them that day do not discuss L.L. providing cleaning services for Prolman's office in Saco. Instead, they focus on L.L. attending to issues relating to a new job and plans to get together that evening. There is evidence elsewhere that Prolman would use office funds budgeted for "cleaning" to meet requests from L.L. for personal funds, with no expectation that cleaning services would be provided. See Board Exh. 803, at 167 ( January, 2020, text exchange where L.L. states she is "broke" and needs to figure out how to get through the week; Prolman offers a check for $200 "which is what I’ve got in acct for cleaning" ).
21The next day, June 18, 2019, Prolman writes L.L. a $200 check for "cleaning". Pet. Exh. 69.
On July 3, 2019, at 5:10 p.m., Prolman texted L.L. to say "I'm really excited to cu and hope u r too." L.L replied, asking if Prolman was planning to assist her with paying for her son's camp, and they had the following exchange:
Prolman: Yes, I can ... r u still excited to come here like I am
LL: What is the amount?
Prolman: Who do I make it out to?
Prolman: I'm jumping on shower ... when will u b here???
L.L replied that there was " $500 left" and that she was ten minutes away. Board Exh. 803, at 64.22 Prolman texted L.L. on July 21, 2019, that he was left"home and showered, shaved, etc. left", prompting further texts about getting together later that evening. Board Exh. 803, at 73. Prolman made payments to L.L. on or around the dates of several of these get–togethers.
L.L.’s OUI stop generated a hearing before the Bureau of Motor Vehicles in addition to criminal charges. Prolman represented L.L. at the BMV hearing in August, 2019, which resulted in the loss of her license. L.L. was very upset about this result and communications with Prolman broke off for a few months.23
In late November, 2019, L.L. restarted communications with Prolman. In a series of texts in late November, L.L. makes a series of statements questioning their past relationship and revealing she had contacted "the Board" to ask
2 2 Prolman wrote a check to L.L., from his firm account, for $500 toward the summer camp on July 3, 2019. Pet. Exhs. 69 and 69a.
23 On August 9, 2019, L.L. had asked Prolman to help her with her car payment. Board Exh. 803, at 93-94. Prolman wrote L.L. a check for $150 on August 15, 2019, for bartending according to Petitioner’s Exhibit 69 and Prolman’s testimony.
some questions. She accused Prolman of taking advantage of her, including expecting sexual favors from her in the context of his representation of her and in the context of her assistance to him in connection with his Bar disciplinary matters. Board Exh. 803, at 95–105; see also Board Exh. 803, at 207, 256, 263,291, 315–317.
Although Prolman never explicitly admits, in response to L.L.’s allegations, that he had a recent sexual relationship with her, there are several texts where he appears to implicitly acknowledge that there was one, but that it was consensual. Board Exh. 803, at 208 (after accusation that he texted her three times a week for sex while he was handling her case, Prolman responded "...I never forced you to come here and helped you for so many years...the only time you had an issue is when I lost your first case ... " ); Board Exh. 803, at 262-263 ("...if I was such a monster why did you keep coming over... " ); Board Exhibit 803, at 290-92 ( "I guess I forced you to come here for years [L] ... funny you had no problem when I helped everyone in your family, mother, boyfriend, daughter ... our 8 cases and never asked for anything in return from you ... if I was so bad [L] why did you keep calling me to come over ... everything happened between us was absolutely consensual and began long before I ever helped you or your family. " ); Board Exh. 803, at 292 ( "funny when I got ur 8 cases dismissed or gave u money when u needed or helped your whole family over 8 ... years you had no problem w that ... I never thought of our relationship as anything but consensual and u know u did too and I certainly never represented you in return for sex.... " ); see also Board Exhibit 1000 (police statement in which Prolman says he began a "relationship/friendship" with L.L. ten years ago, that lasted ""till today", further stating "she told me she had an on again/ off again relationship with her boyfriend, so for several years she’d call me or I’d call her but she’d come to visit, and we became friends .. our relationship, although consensual was nothing serious from hers or my view"). Prolman’s legal assistant, April Gardner, testified that Prolman told her that he and L.L. had an on–again/off–again sexual relationship for years.
After they resumed communications in November, Prolman started making payments to L.L, paying her at least $13,177.22 between November 27, 2019, and March 25, 2020. Pet. Exh. 60. According to her text messages during this period, L.L. blamed Prolman for the loss of her license and the resulting inability to work and expected him to, in effect, replace that income. See e.g. Board Exh. 803, at 268, 284. Prolman responded to her frequent text messages about her economic needs with, at time desperate, attempts to mollify L.L., referencing his own financial difficulties, promising to make payments when he could, promising additional help once he got reinstated,24 and going to far as to tell her when he was going to receive funds in connection with his legal work that he could use to pay her. At the end of March, 2020, Prolman and L.L. started texting about him getting a loan and paying her a final, lump sum of $20,000 in exchange for a release and nondisclosure
agreement. See e.g. Board Exhibit 803, at 270-271. On March 26, Prolman communicated that he had no funds and would not have any until he was paid by a particular client or his loan came through. Board Exh. 803, at 320.24 See e.g,. Board Exhibit 803, at 126 ( "hopefully I'll b reinstated soon which will take away my cash crisis"); id. at 134 ( "... I’m doing the best I can for you and look forward to helping ur family once reinstated"); id. at 215 ( "..I'll give you half of that but that’s the best I can do right now ... I’m so stressed out [L] as I know u r too not working ... hopefully the Bar will b ok any day").
In mid–March, 2020, as the exchanges with L.L. deteriorated, Prolman started to accuse L.L. of extortion. These accusations escalated until Prolman started raising the possibility of reporting L.L. to the police. See e.g. Board Exhibit 803, at 257; id. at 286-290; id. at 311–314, 317–318, 322–323; 327–328; 331–339. At no point before this had Prolman, an experienced criminal defense attorney, suggested to L.L. that her course of conduct or her receipt of payments from him were creating legal risk for her, nor did he advise her to seek counsel with respect to her course of action. Instead, he paid her and attempted to keep the situation under control, until he could no longer do so.
On March 27, 2020, Prolman, in fact, filed a complaint against L.L. with the Saco Police Department for theft by extortion. He eventually told the Saco P.D. that he did not want his funds back, but simply wanted L.L. to stop with her demands. According to the police reports provided, she agreed to this and police involvement ended. See Board Exh. 1000, at 34–38. In this same time frame, L.L did also contact the Board about her experience with Prolman.
Prolman did not disclose or discuss his relationship with L.L. during his counseling sessions with Dr. Magnuson, nor did he seek assistance from Dr. Magnuson in addressing the escalating situation with L.L. When presented with the salient facts at the reinstatement hearing, even when making certain presumptions in Petitioner’s favor, Prolman’s interactions with L.L. were concerning and suggested to Dr. Magnuson that he had not made the changes he led her to believe he had made. She testified she could no longer opine that his narcissistic personality disorder has been sufficiently addressed/ mitigated without additional investigation and work with Prolman. At a minimum, Dr. Magnuson would recommend continued treatment. 25
Dr. Magnuson testified that she would diagnose Prolman with narcissistic personality disorder and that the actions that resulted in his conviction for money laundering, his drug use, and his 2017 misconduct with his client all stemmed from this disorder. Based on this evidence, the Panel concludes that Prolman has a mental health diagnosis that impacts his ability to meet his ethical obligations as an attorney, that the condition existed at the time of the 2017 suspension, and that the condition directly related to the conduct that resulted in that suspension. Furthermore, Petitioner’s work with Dr. Magnuson appears to have been inadequate to mitigate the risks associated
25 Another relationship that caused the Panel to question Prolman’s mastery of the guidelines provided by Dr. Magnuson was Prolman’s relationship with C.C. C.C. was called by Prolman to highlight his generosity and confirm he never made sexual advances toward her. C.C. is significantly younger than Prolman – she was twenty– seven at the time of the reinstatement hearing. They met in 2016 at an establishment where C.C. was bartending and they became friends over the course of a year or so. C.C. was economically vulnerable during the course of their relationship and was, for a period, a client. In 2017, Prolman represented C.C. in connection with a speeding ticket. He went beyond representation and ended up paying the fine for her. In 2017 and possibly 2018, Prolman also gave C.C. money towards a medical office skills class. C.C. then testified that she was struggling financially in June, 2019, so Prolman offered to allow her to stay in his guest room rent–free, echoing his actions towards the complainant in the 2017 matter. C.C. lived in Prolman’s apartment in Saco, with him, from June, 2019, until December, 2019. Mr. Prolman did not disclose his relationship with C.C. to his counselor, despite the power differential between them, nor did he seek Dr. Magnuson’s input with respect to extending financial help to C.C. by offering her his guest room and co–habiting with her for six months.
with his narcissistic personality disorder. There is ample evidence in the record that Prolman is still unable to identify and maintain appropriate boundaries in situations that pose a significant risk of misconduct. Therefore, the Panel finds that the criteria set forth in M.Bar.R. 29(e)(3) apply to this matter and that Prolman has failed to demonstrate, by clear and convincing evidence, that he meets them.26
(4) M.Bar.R. 29(e)(4): Recognition of the Wrongfulness and Seriousness of the Misconduct for which the Petitioner was Suspended.
Prolman continues to deny that he had a sexual relationship with the client involved in the 2017 suspension, so he does not acknowledge the conduct at all. Prolman argued at hearing, however, that he has demonstrated recognition of the wrongfulness and seriousness of the conduct because he has educated himself about, and accepts, the wrongfulness of the type of conduct at issue, namely having a sexual relationship with a vulnerable client, even if he does not admit doing it, and that he does regret bringing the client into his home and otherwise blurring the boundaries of his attorney–client relationship with the client.
Prolman may regret bringing the client into his home, but he also appears to continue to place the blame for what happened at the client’s feet. There was evidence at the hearing that, when discussing the matter with those
in his circle, Prolman’s explanation of what happened is that he helped someone who was not of "good character", who then victimized him. As discussed previously, there is evidence that, after the 2017 suspension order, Petitioner used extremely derogatory language when discussing the client with L.L, who also knows her, indicating that the client was going to "get what’s coming to her". This does not support the conclusion that Prolman recognizes the wrongfulness and seriousness of his own conduct, including the negative impacts that he had on the client’s life. It certainly does not evidence intent to make amends for those impacts,27 or even an intent to avoid inflicting additional harm to her. Instead, he has continued to malign the client to others and to blame her for what happened.26 In addition to the risks posed by his narcissistic personality disorder, Prolman has also failed to demonstrate any work relating to his failure to maintain boundaries around alcohol use in 2017. If that conduct qualifies as alcohol "abuse", this would provide another reason Prolman has failed to meet the Rule 29(e)(3) criteria. See supra Section II(B)(l)(a).
Perhaps the strongest evidence that Prolman does not accept the wrongfulness and seriousness of the conduct that led to his discipline is the situation that developed with L.L. Despite giving lip service to his work on boundary issues, Prolman blew through all the relevant stop signs when it came to L.L. L.L. was economically vulnerable. There is evidence that she has or had substance use/ abuse issues. Her circumstances were such that she faced repeated criminal charges for which she needed representation and she depended on him for that representation and additional financial support, which he provided. He had frequent meetings with her well after office hours,
27 The Panel did consider Pet. Exhs. 19 and 20, which are sealed, and Petitioner’s testimony relating to the import of those documents. Given the fact that Petitioner’s own self–interest in risk mitigation was also served by the actions evidenced by these exhibits, this evidence does not alter the Panel’s conclusions with respect to this reinstatement criteria.
at his home. Despite his denials, based on the parties’ contemporaneous text messages and other evidence described above, the Panel finds it likely that Prolman indeed had a sexual relationship with L.L. while she was a client, and that she perceived that sexual relationship, to some degree, as a quid pro quo for financial assistance and legal representation. When their attorney–client and personal relationship fell apart, Prolman then engaged in efforts to silence L.L. that continued to blur appropriate boundaries and that potentially exposed her to criminal liability, while then taking advantage of that exposure when it suited him. Much of the conduct described in the preceding sentence occurred after Prolman had submitted his Petition for Reinstatement.
For these reasons, and other relevant evidence cited herein, the Panel finds that Prolman has not met his burden of proving, through clear and convincing evidence, that he recognizes the wrongfulness and seriousness of the misconduct for which he was suspended.
(5) M.Bar.R. 29(e)(5): Professional Misconduct Since Suspension.
The evidence presented at hearing implicates Prolman’s potential violation of M.R.P.C. 1.8(j), which prohibits a lawyer from having sexual relations with a client unless a consensual sexual relationship existed between them when the client–lawyer relationship commenced. The text messages between Prolman and L.L., when considered in the light of the other evidence, strongly suggest that they engaged in sexual relations while she was a client. The evidence indicates that they had an on–again/ off–again sexual relationship driven, at least in part, by L.L. ’s need for financial assistance or legal representation, which does not appear to be the sort of pre–existing, "consensual" sexual relationship contemplated by the rule. The power dynamics between Prolman and L.L. strongly suggest that any sexual relationship between them was not fully consensual. In light of the other evidence, Prolman’s denials of inappropriate conduct with L.L. fall flat. Prolman simply failed to create an "abiding conviction" in the Panel that it was "highly probable" he did not violate Rule 1.8(j).
Based on the other findings made herein, the Panel also concludes that Prolman failed to establish, through clear and convincing evidence, that he has not violated various other Rules of Professional Conduct, including Rules 1.7(a)(2); 2.1, 3.3(a)(1); 3.3(a)(3); 8. l(a); 8.4{a), 8.4(c); 8.4(d), since his suspension.
(6) M.Bar.R. 29(e}(5): Requisite Honesty and Integrity to Practice Law.
With respect to Prolman’s character as a general matter, evidence was presented at the reinstatement hearing of Prolman’s extensive history of community involvement and various good works. This history has been cited by the Court in previous disciplinary orders relating to Petitioner, including the 2016 Restatement Order.28 Prolman outlined this history in his testimony before the Panel, including his actions coaching high school hockey while in
28Petitioner's Exhibit 7(a) contains seventy-seven (77) letters of support that were submitted at his original reinstatement hearing in 2016. Pet. Exh. 7(a). These letters were all drafted prior to Prolman’s second suspension. With two exceptions, no evidence was provided that any of the letter writers in Petitioner’s Exhibit 7(a) support Mr. Prolman’s reinstatement at this time.
college and beyond, his assistance to various alma maters with outside admissions, his fundraising efforts for the Make–A–Wish Foundation and various other groups, his organization of community fundraisers and charity events for various causes, his involvement in creating and supporting the Maine High School Hockey Invitational, his work assisting individuals sentenced to federal prison with respect to navigating the system, and his volunteer work for his synagogue. See also Pet. Exh. 66. He also testified about his involvement with the Portland Boxing Club, an amateur youth boxing organization, which was verified by the testimony of the individual who runs the club. In addition, evidence was presented with respect to pro bono legal work done by Prolman over the years.
Petitioner also offered evidence of instances where he extended himself to provide financial help or other support to clients or others. This included two witnesses who had served sentences for felony convictions at the Lewisburg facility with Petitioner. Both of these witnesses testified that Prolman told them to let him know if they ever needed anything after they were released. Prolman, in fact, provided financial assistance and encouragement to both individuals.29
Finally, Petitioner submitted evidence that many clients hold him in high regard and value his skill and service as their attorney. Petitioner’s Exhibit 7 contains more than thirty letters of support from different individuals – all
women – – that were submitted to the Single Justice in connection with the 2017 Suspension and the proceeding leading to the 2019 Sanction Order. In addition to discussing Prolman’s service as their attorney, many of these individuals write that Petitioner did not make sexual advances, nor did he otherwise, in their view, act inappropriately toward them or make them feel uncomfortable. These letter writers included L.L. and some of her family members. Two letter writers testified at the reinstatement hearing. With respect to the rest, the current status of their support for Petitioner was not provided.29 As noted above, at least some of Mr. Prolman’s interactions with these individuals, who had felony convictions, occurred during his federal probationary period, which ended in May, 2018, and prohibited Prolman from contacting felons.
The fact that Prolman gives significant time and resources to causes and people in his community cannot be disputed. The fact that many clients and others are willing to testify on his behalf also cannot be disputed. Similar evidence has been offered in every disciplinary hearing involving Mr. Prolman. Similar evidence was offered at his federal criminal sentencing. Back in 2014, the federal judge who sentenced Prolman noted:
Mr. Prolman has a genuine desire to help people. His charitable works, his reputation in the community for assisting people, young athletes, students was brought clearly to me with the multitude of letters that I received and read. There’s simply no issue that way beyond that of any average person, he had a significant impact on the lives of many athletes and non–athletes in the community and one should certainly not deny him credit for that ....
Board Exh. 911, at 118 (Singal, J.).
Despite these observations, Judge Singal also recognized another hidden side to Mr. Prolman – the Gary Prolman that operated outside of the cultivated public persona. The Prolman that crossed inappropriate boundaries in private
and attempted to keep those actions hidden or cover them up with disingenuous explanations. See e.g. Board Exh. 911, at 119 ( "Mr. Prolman is [deluding] himself if he believes that any reasonable person listening to this story would think that he was a babe in the woods. "). Recognizing this, Judge Singal discounted the testimony of multiple witnesses who testified at sentencing because they had not been given the whole story:
What concerns me is that Mr. Prolman didn’t level with me and he didn't level with anyone else. When the press called him, he didn't level with them because he was concerned about his reputation in the community and he didn't level with the people who wrote letters to me by making them. fully cognizant of what was going on in this case before they would write a judge expressing their views. And I don't think he leveled with his family ... I think his family was learning today things that they didn't know ever.
Board Exh. 911, at 119 (emphasis added).
These observations are still applicable today in assessing the relevance of the character witnesses Prolman offered in support of reinstatement. From the testimony at hearing, it can be concluded that Prolman minimized the reasons for his discipline to the character witnesses that appeared before the Panel. For example, the Executive Director of Prolman’s temple testified as to her personal experiences with Prolman as a volunteer and wrote in support of his reinstatement on two occasions. See Board Exhibits 5, 5a. This witness was aware that someone had accused Prolman of sexual misconduct, which conduct he denied to her. She was not aware, however, that a Court had found that Prolman actually engaged in client–related sexual misconduct, which she had to admit on cross might impact her recommendation. Another example is the Director of the Boxing Club where Prolman volunteers. This gentleman
testified that Prolman told him that he got in trouble because he agreed to help out a client who did not have good character, and that it backfired and resulted in a false sexual harassment allegation. Although these and the other character witnesses are well–versed with the face Prolman wants them to see, their testimony is of limited value in assessing the risk posed by what goes on behind closed doors.
Also countering Petitioner’s character evidence are demonstrable instances of lack of candor on Prolman’s part as he attempted to obscure or conceal his issues with L.L. First, as discussed in detail above, Prolman was not candid with the Receiver in November, 2019, about the nature of the file retrieval that took place relating to L.L. ’s request for materials. In addition, Prolman specifically testified to this Panel that all he did was retrieve and provide the file with a simple enclosure letter when that was not the case.
Then, there was the lack of candor in Prolman’s December 11, 2019, Petition for Reinstatement. The most blatant example of this is Prolman’s submission of a 2018 letter from L.L. in support of his Petition. The letter was submitted in connection of paragraph 14 of the Petition, which stated:
...Petitioner has not had any complaints similar in character made in the Bar Complaint in the Petitioners lifetime, let alone during the practice of law, and in fact, has included letters of nearly all female clients that the Petitioner has represented over the last four (4) years, or females he has interacted with at his office through employment. (see Exhibit 4. Letters of female clients, female business associates, and female personnel. )
Board Exhibit 100, ¶ 14. Exhibit 4 attached to the Petition contains a November, 2018, letter from L.L. Board Exhibit 100, at 50–51.
The submission of this letter was an implicit representation to the Board, on December 11, 2019, that L.L. supported his reinstatement. This was accompanied by the explicit representation in paragraph 14 of the Petition, that the 2017 Bar Complaint was an aberration and no one else, in any context, had ever accused him of an inappropriate sexual conduct. See also Board Exhibit 100, ¶ 14 ( "Petitioner has not engaged in any other professional misconduct like this before or after this suspension. " (.30 This representation was made despite the fact that L.L. had recently told Prolman she felt he had taken advantage of her through their sexual relationship and referenced calling the Board. The representation was made on the same day Prolman made a car payment on behalf of L.L. in his ongoing attempt to control the situation and prevent L.L. from making a complaint. See Pet. Exh. 60 (12/11/2019 Payment); see also Board Exh. 803, at 114–115. None of those details were disclosed. Instead, Prolman represented that no one had any complaints about him and held L.L. up as an example.
The Petition also stretches the truth with respect to Petitioner’s counseling with Dr. Magnuson. The Petition states that Prolman underwent "significant counseling to assess the issues surrounding the suspension voluntarily before this Sanctioning Order. " Board Exhibit 101, at 3, ¶ 7; see also id. at 4, ¶ 17 ( "... Petitioner recognizes the wrongfulness and seriousness of
30 See also Final Affidavit of Gary M. Prolman, dated 12/11/2019 ( "I also know and recognize that any type of sexual relationship with any client is inappropriate for me and I assure Bar Counsel and this Court I will never ever place myself or anyone else in this situation again. " ). Board Exhibit 100, at 11, ¶ 24.
the allegations made by his former client which the suspension revolved around, and has engaged in every possible way in exhaustive counseling (24 sessions to date) .... " ). The evidence at hearing was that Prolman’s work around boundaries – six sessions only – was not voluntarily completed. Rather, it was required by his federal probation. To the extent he engaged in other counseling, that was to deal with stressors in his life, not to work on boundary issues.
Prolman goes on to say he continued counseling after the 2019 Sanctions Order and had reached an endpoint. Board Exhibit 100, at 3, ¶ 7. The implication of this is that Prolman continued to work earnestly on the issues relevant to his suspension after the Sanctions Order. Again, we know that his boundary work ended in April, 2018. Furthermore, after the July, 2019, Sanctions Order, Prolman did not go to see Dr. Magnuson until October 15, 2019, and he had a total of three visits before the Petition was filed. During the October 15, 2019 visit, Prolman did not tell Dr. Magnuson about his relationship with L.L. He did not mention that C.C., a financially vulnerable, former client, was, at that moment, living in his apartment. Rather, he selectively shared information to lead Dr. Magnuson to conclude that he did not need further work on boundaries. On November 13, 2019, he went back to see her to request a letter in support of his Petition. His final session with Dr. Magnuson was on December 11, 2019, the day he filed the Petition, during which session he revealed he was struggling with the CLEs he
was attending. The reality of Prolman’s counseling just does not comport with his spin on the facts as presented to the Board and the Panel.
Also problematic, in the Final Affidavit submitted with his Petition, executed under oath on December 11, 2019, Prolman stated that the Receiver, Attorney Weinstein had maintained the key to the storage facility where his closed files were kept "throughout the entire suspension process". Board Exhibit 100, at 9, ¶ 9. He also reiterated that his clients knew that they would be able to obtain any file materials through the Receiver, an implicit assurance to the Board that all client contact and file retrieval would go through the Receiver. See Board Exhibit 100, at 8, ¶ 8; id. at 9–10, ¶ 13. It is now clear, from the evidence presented at trial, that the key was not continuously in the Receiver’s possession. As noted previously, Prolman convinced the Receiver to let him have the key in connection with L.L.’s request for file materials, without disclosing that there was more going on with this former client than a simple file request and without disclosing that he was going to be doing more than just copying the file with a simple, one–line enclosure letter. This calls into question Petitioner’s candor with the Board and his candor with the Receiver.
Furthermore, representations made in some of the exhibits prepared and submitted by Prolman at hearing do not hold up under scrutiny. Already discussed is the documentation, and Prolman’s supporting testimony, that L.L. was paid certain sums over the years for "cleaning", when the evidence suggests this was not the case. Then there is Petitioner's Exhibit 60, which is a summary prepared by Prolman describing the circumstances of his payments
to L.L. between November 27, 2019, and March 25, 2020. The summary was submitted to the Saco Police Department and also to this Panel as evidence. Petitioner's Exhibit 60 references multiple dates when Prolman alleged that he was forced to make payments due to "threatening" phone calls from L.L. The summary states that he made a February 19, 2020, payment after several threatening calls. A review of Prolman’s phone bills shows one phone call from Prolman to L.L. on February 19, but not one incoming call from her number. The payment made on Sunday, February 23, 2020, was allegedly made in response to "multiple calls on Friday and Saturday" where L.L. made threats and demands for money. Prolman’s phone records for Friday, February 21, and Saturday, February 22, 2020, show one single phone call from Prolman to L.L., but no incoming calls from her number. According to the log, L.L. then made many phone calls on February 25, 2020, demanding more money with multiple threats, during which calls she was "high as a kite". There are no incoming calls from L.L. to Prolman on February 25, 2020. More threatening phone calls were then allegedly made on February 28, 2020. Prolman’s phone records show no calls to or from L.L. on February 28, 2020. Indeed, there were no calls to or from L.L. between February 25 and February 28, 2020.
Prolman’s summary alleges multiple calls from L.L. over multiple days leading up to March 11 and repeated calls and threats for several days leading up to March 18, 2020, with four calls on the morning of March 18 alone. The summary also states that, on March 25, L.L. made multiple calls to Prolman "speaking irrationally to [him] with all kinds of lies she was going to tell the
Bar". He stated that, as a result, he paid her $350.00, but she still "continued to call several times during the day to continue her threats and intimidation. " Pet. Exh. 60 (second page). Prolman’s phone records show that there were two incoming calls to Prolman from L.L. ’s number for the entirety of the month of March. The first such call was on March 3 and it lasted two minutes. The second such call was on March 12 and it lasted eleven minutes.
When confronted with these inconsistencies at the hearing, Petitioner claimed that he was using the terms phone call and text exchange interchangeably and that his references to "calls" were intended to include "texts". This seems unlikely, particularly after a review of the language used in Pet. Exh. 60, a review of the relevant text messages, the fact that Prolman knew how to specify texts in other places, and the fact that Prolman, an experienced criminal defense attorney, was crafting this document for use by the police to pursue criminal charges against L.L. Furthermore, Prolman’s reference to the fact that the communications were calls rather than texts permitted him to make claims such as the fact that L.L. was "high as a kite" when they spoke and that she was "speaking irrationally". Referencing phone calls would also permit him to make assertions about the content of the communications that could not be contradicted by a writing. For these reasons, the Panel does not find credible Prolman’s assertions that the alleged phone calls from L.L. enumerated in the exhibit were meant to reference texts. In sum, the factual assertions made in Petitioner’s Exhibit 60 simply do not hold up under examination. Rather, it appears the summary was an attempt
by Prolman to paint an inaccurate picture of his interactions with L.L., first to gain traction with the police and then to discredit L.L. during the course of this reinstatement proceeding.
Prolman’s conduct surrounding L.L. again harks back the decision–making that led to his criminal conviction. To again quote Judge Singal:
Mr. Prolman will understand fully that he made several serious mistakes. Number one, he thought he wouldn't get caught and that the short period of collecting $250,000 in drug money would go by, he would get on his financial feet ... and his dreams of becoming a sports agent would come true. And number two, perhaps more disastrously for him, he believed that because he had always been able to convince people that his side of the story was accurate, that the same would work in the criminal justice system here. He was wrong in both cases.
See Board Exh 911, at 120–121. The evidence at hearing indicates that he is still making these mistakes, i.e. internally justifying a course of unethical conduct to get himself out of difficulty and trusting that he can use his persuasive skills to spin the facts and avoid consequences if his conduct is discovered.
Turning to the issue of integrity, in order to have the integrity needed to practice law, an individual must, at the least, have the reasonable ability to align one's actions with the boundaries, rules, and standards that one is expected to abide by as a practicing Maine attorney. The record in this matter is replete with evidence that Petitioner still struggles with aligning his actions with relevant standards and boundaries in this way. This is particularly so when Petitioner is operating in his "danger" areas, where his inclination to find justifications for ignoring relevant boundaries is high.
Based on all of these factors, and other relevant facts found elsewhere in this decision, the Panel cannot conclude that Petitioner has met his burden of proving that he has the requisite honesty and integrity to practice law.
III. RECOMMENDATION
Based on the findings contained in this decision, the Panel concludes that Petitioner has failed to demonstrate, by clear and convincing evidence, that he has met the criteria set forth in M.Bar.R. 29(e)(l) –(6). Furthermore, Petitioner has not demonstrated any other reason why he should, nonetheless, be reinstated. As a result of the findings and conclusions set forth herein, the Panel recommends that Petitioner's Petition for Reinstatement be DENIED.
The Board requested a recommendation that Petitioner not be permitted to apply for reinstatement for a period of three years after the Court’s order denying his Petition. The scope of the Grievance Commission’s jurisdiction in this matter is to render findings and recommendations as to whether Petitioner met the Rule 29(e) criteria or should otherwise be reinstated. M.Bar.R. 29(g). The length of any prohibition against re-filing is squarely within the jurisdiction of the Court. M.Bar.R. 29(h). Having said that, many of the facts found herein suggest strongly that Petitioner should be prohibited from refiling a Petition for Reinstatement for more than one year. Petitioner's issues are not minor and his showing at hearing was not close to establishing that he should be reinstated. The instant Petition was disingenuous and lacking in candor in many respects, yet the Board, Bar Counsel’s Office, and the Panel were required to expend considerable time and resources to evaluate and litigate it,
including four full days of hearing. In light of the resources required to litigate each filing and the multiple ways Petitioner fell short, a significant moratorium on refiling would be appropriate.
March 10, 2021
Teresa M. Cloutier, Esq., Panel Chair
Jane Clayton, Esq., Panel Member
Sophia Leotsakos–Wilson, Public Member
Board of Overseers of the Bar v. Lawrence A. Lunn, Esq.
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Docket No.: BAR-19-008
Issued by: Justice Thomas D. Warren, Superior Court
Date: March 19, 2021
Respondent: Lawrence A. Lunn, Esq.
Bar Number: 002358
Order: Suspension Interim Order
Disposition/Conduct: Interim Order of Suspension
On March 19, 2021, the Maine Supreme Judicial Court issued an Interim Order imposing specific conditions on Attorney Lawrence Lunn’s continued practice. The Court otherwise deferred ruling on Bar Counsel’s request for an Immediate Suspension.
Board of Overseers of the Bar v. Charles T. Ferris, Esq.
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Docket No.: GCF #20-046
Issued by: Grievance Commission
Date: March 23, 2021
Respondent: Charles T. Ferris, Esq.
Bar Number: 007550
Order: Report of Findings and Order
Disposition/Conduct: Conflict of Interest, Former Client
On February 24, 2021 a panel of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Charles T. Ferris, Esq. The Panel found that Attorney Ferris’s conduct violated Maine Rules of Professional Conduct 1.9(a) and 8.4(a) and determined that a Public Reprimand combined with a period of probation constituted a satisfactory sanction for the misconduct.
Board of Overseers of the Bar v. In Re Michael P. Kenney
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Docket No.: BAR-21-2
Issued by: Maine Supreme Judicial Court
Date: March 25, 2021
Respondent: Michael P. Kenney
Bar Number: 009139
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement
Michael P. Kenney has petitioned for reinstatement to the Maine bar. Pursuant to M. Bar R. 4(j) and 29(f)(1), Bar Counsel has stipulated to Mr. Kenney's reinstatement, subject to the Court’s approval.
The Court has reviewed Mr. Kenney’s Petition for Reinstatement and determines that the petition is in order and may be granted without a hearing.
Therefore, it is ORDERED that, effective on the date of this Order, Michael P. Kenney, Bar #009139, is hereby reinstated to the Maine bar with all the rights and responsibilities hereto.
Dated: March 25, 2021.
For the Court,
E. Mary Kelly
Judge, District Court
Sitting as Single Justice by Designation
Board of Overseers of the Bar v. Christopher J. Whalley
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Docket No.: CV-20-01
Issued by: Maine Supreme Judicial Court
Date: April 2, 2021
Respondent: Christopher J. Whalley
Bar Number: 007370
Order: Suspension/Monitoring Order
Disposition/Conduct: Candor toward the Tribunal. Truthfulness in statements to others.
The Maine Supreme Judicial Court has suspended Christopher J. Whalley for one year, with the sanction fully suspended with conditions.
Board of Overseers of the Bar v. Elmer E. Runyon
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Docket No.: BAR-20-5
Issued by: Justice Thomas D. Warren, Superior Court
Date: April 28, 2021
Respondent: Elmer E. Runyon
Bar Number: 000952
Order: Receiver Discharge Order
Disposition/Conduct: Order to Discharge Limited Receiver
Pending before the Court is the Board of Overseers of the Bar's Petition for Discharge of Limited Receiver filed on April 16, 2021. For good cause shown and without objection, the Board's Petition for Discharge is GRANTED as follows:
It is ORDERED that the Board of Overseers of the Bar is discharged as Receivers of the law practice of deceased attorney Elmer E. Runyon. It is further ORDERED that the Board shall utilize the remaining funds held in trust by the Board for costs associate d with winding down the law practice.* The Board shall continue to ensure that all client property is protected and destroyed consistent with the Maine Rules of Professional Conduct.
*Once all of those cost have been paid, any remaining funds should be released to the Estate.
Date: April 28, 2021
Thomas D. Warren
Single Justice
Maine Supreme Judicial Court
Board of Overseers of the Bar v. Clarence H. Spurling
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Docket No.: BAR-20-08
Issued by: Justice Valerie Stanfill
Date: May 28, 2021
Respondent: Clarence H. Spurling
Bar Number: 007416
Order: Order of Surrender
Disposition/Conduct: Surrender
M. BAR R. 25(d)
This matter is before the Court on a Motion for Interim Suspension and an Information filed by the Board of Overseers of the Bar (the "Board"). After hearing, by Order dated September 4, 2020, the Court granted the Board's Motion for Interim Suspension.
Pursuant to M. Bar R. 25(d) Defendant has submitted to the Court a Letter of Surrender of License ("Surrender"). Pursuant to M. Bar R. 25(d), Defendant has stated that the Surrender is freely and voluntarily rendered, he is not subject to coercion or duress, and he is fully aware of the implications of surrender. Defendant acknowledges, pursuant to M. Bar R. 25(d), that the material facts, or specified material portions of them, underlying the allegations are true or could be proven, if said facts are found to be credible by the Court.
Defendant agrees that, pursuant to M. Bar R. 25(d)(4), he may be reinstated only upon petition filed in the Court after at least 5 years from the effective date of surrender. Defendant further acknowledges that he may not file such a petition unless he has remitted all outstanding amounts resulting from any claims paid out by the Lawyers’ Fund for Client Protection and any reasonable costs that the Board of Overseers of the Bar incurred in its prosecution of this matter. Those costs include transcript fees associated with the hearing on the related Motion for Interim Suspension.
As of the date of this Order, Defendant’s Surrender is accepted by the Court, pursuant to the terms set forth in this Order.
It is further Ordered that the Interim Suspension Order dated September 4, 2020 is hereby vacated and rendered moot. Defendant is prohibited from practicing law as of the date of this Order.
It is further Ordered that the pending Disciplinary Information (Rule 13(g)), which includes a complaint by a former client and a sua sponte complaint regarding another former client, is hereby dismissed with prejudice, with the exception that in the event Defendant files a Petition for Reinstatement this Order does not prohibit Bar Counsel from requesting that the complaints be considered in that proceeding and allows the Grievance Commission and Court to consider all prior disciplinary history, including the two complaints discussed in this Order.
Finally, it is Ordered that the September 15, 2020 Order for Appointment of Co- Receivers shall remain in effect until further order of this court.
Dated: May 28, 2021
Valerie Stanfill
Justice sitting by designation of the
Supreme Judicial Court
Board of Overseers of the Bar v. Dana F. Strout
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Docket No.: BAR-21-04
Issued by: Justice, Ann M. Murray, Maine Superior Court
Date: June 21, 2021
Respondent: Dana F. Strout
Bar Number: 008239
Order: Order of Surrender
Disposition/Conduct: Surrender
M. BAR R. 25(d)
This matter is before the Court on a Petition for Immediate Interim Suspension filed by the Board of Overseers of the Bar (the "Board").
Pursuant to M. Bar R. 25(d) Defendant has submitted to the Board of Overseers a Letter of Surrender of License ("Surrender"). Pursuant to M. Bar R. 25(d), Defendant has stated that the Surrender is freely and voluntarily rendered, he is not subject to coercion or duress, and he is fully aware of the implications of surrender. Also pursuant to M. Bar R. 25(d). Defendant has stated that he is aware that there is presently pending an investigation into allegations of misconduct, the nature of which Defendant has set forth in his accompanying affidavit ("Affidavit"), which is attached hereto and which is impounded pursuant to M. Bar R. 25(d)(3). Finally, Defendant acknowledges, pursuant to M. Bar R. 25(d), that specified material portions of the underlying allegations could be proven, if those said facts were found to be credible by the Court.
Defendant agrees that, pursuant to M. Bar R. 25(d)(4), he may be reinstated only upon petition filed in the Court after at least 5 years from the effective date of surrender. Defendant further acknowledges that he may not file such a petition unless he has remitted all outstanding amounts resulting from any claims paid out by the Lawyers' Fund for Client Protection.
The Defendant's Surrender of his license is hereby accepted by the Court, pursuant to the terms set forth in this Order, and the Board's Petition for the Interim Suspension dated May 5, 2021, is hereby rendered moot and dismissed. The Defendant's Surrender will be effective as of July 1, 2021, and he will be prohibited from practicing law thereafter.
This Order does not prohibit Bar Counsel from requesting that the investigation underlying its Petition for Immediate Interim Suspension be considered in any reinstatement proceeding and allows the Grievance Commission and Court to consider all prior disciplinary history, including the Petition for Immediate Interim Suspension discussed in this Order.
Dated: June 21, 2021
Ann M. Murray
Justice
Maine Superior Court
Board of Overseers of the Bar v. Eugene McLaughlin, Jr., Esq.
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Docket No.: BAR-21-05
Issued by: Hon. Thomas D. Warren
Date: July 21, 2021
Respondent: Eugene McLaughlin, Jr., Esq.
Bar Number: 003748
Order: Order
Disposition/Conduct: Default
(M.R.Civ.P. 55(a))
Board of Overseers of the Bar v. In Re Gary M. Prolman
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Docket No.: BAR 14-12
Issued by: E. Mary Kelly, District Court Judge
Date: July 26, 2021
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Reinstatement Order
Disposition/Conduct: Decision Under Appeal
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: BAR 14-12
Issued by: E. Mary Kelly, District Court Judge
Date: June 16, 2021
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Order
Disposition/Conduct: Decision Under Appeal
Board of Overseers of the Bar v. Richard L. Rhoda, Esq.
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Docket No.: BAR-21-01
Issued by: Hon. Daniel F. Driscoll
Date: 2021-09-09
Respondent: Richard L. Rhoda, Esq.
Bar Number: 000124
Order: Order
Disposition/Conduct: Communication, confidentiality of information, and misconduct.
The Court affirmed the Report of Findings and Order of the Grievance Commission imposing a reprimand and probation with conditions.
Board of Overseers of the Bar v. Stephen J. Link, Esq.
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Docket No.: Bar-20-12
Issued by: Hon. E. Mary Kelly
Date: October 29, 2021
Respondent: Stephen J. Link, Esq.
Bar Number: 005539
Order: Sanction Order
Disposition/Conduct: Competence, diligence, communication, unreasonable fee and conduct involving dishonesty.
Attorney Link was retained to obtain his client’s appointment as the personal representative of an estate. Despite making multiple false representations to the client that appropriate probate filings had been made, he failed to take any action on the estate for several months. In the second matter Attorney Link was retained to file suit contesting a will. Attorney Link failed to file the lawsuit, or to respond to inquiries from his client about the status of her matter until his client's lawsuit was time–barred by statute. Attorney Link failed to refund his client’s retainer.
Board of Overseers of the Bar v. In Re Ragnar R. Huffman aka Ronald E. Hoffman
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Docket No.: BAR 21-6
Issued by: Judge Michael A. Duddy, Maine District Court
Date: December 6, 2021
Respondent: Ragnar R. Huffman aka Ronald E. Hoffman
Bar Number: 008593
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement
Board of Overseers of the Bar v. Reginald E. Burleigh
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Docket No.: BAR-21-
Issued by: Single Justice Michael A. Duddy
Date: December 6, 2021
Respondent: Reginald E. Burleigh
Bar Number: 001472
Order: Receiver Appointment Order
Disposition/Conduct: Order Appointing Limited Receiver
M. Bar R. 32
Board of Overseers of the Bar v. James L. Audiffred, Esq.
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Docket No.: BAR-21-010
Issued by: Single Justice William R. Stokes
Date: December 2, 2021
Respondent: James L. Audiffred, Esq.
Bar Number: 002382
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Co-Receivers
M. Bar R. 32
Board of Overseers of the Bar v. In Re Peter J. Richard, Jr.
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Docket No.: Bar-21-8
Issued by: Justice Thomas McKeon, Superior Court
Date: December 28, 2021
Respondent: Peter J. Richard Jr.
Bar Number: 004674
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement
Board of Overseers of the Bar v. In Re Alyson L. Roberts
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Docket No.: BAR-21-11
Issued by: Single Justice Ann M. Murray, Superior Court
Date: January 6, 2022
Respondent: Alyson L. Roberts
Bar Number: 005501
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement
Board of Overseers of the Bar v. Randy L. Robinson, Esq.
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Docket No.: GCF #19-098
Issued by: Grievance Commission
Date: February 1, 2022
Respondent: Randy L. Robinson, Esq.
Bar Number: 009251
Order: Report of Findings and Order
Disposition/Conduct: Fairness to opposing party and counsel. Conduct prejudicial to the administration of justice.
M. Bar R. 13(e)
On February 1, 2022 a panel of the Grievance Commission conducted a public disciplinary hearing concerning alleged misconduct by the Respondent, Randy L. Robinson, Esq. The Panel found that Attorney Robinson's conduct violated Maine Rules of Professional Conduct 3.4 and 8.4(d) and determined that an 18-month period of probation was the appropriate sanction for his misconduct.
Board of Overseers of the Bar v. Christopher J. Whalley
Download Whalley Suspension Order & Receiver Appointment
Docket No.: BAR-22
Issued by: Single Justice
Date: 2022-02-17
Respondent: Christopher J. Whalley
Bar Number: 007370
Order: Receiver Appointment Immediate Interim Suspension
Disposition/Conduct: Misuse of client funds; Failure to respond to Bar Counsel investigation; Dishonesty
Board of Overseers of the Bar v. Kevin G. Grimes, Esq.
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Docket No.: GCF #21-026
Issued by: Grievance Commission
Date: February 16, 2022
Respondent: Kevin G. Grimes, Esq.
Bar Number: 007847
Order: Report of Findings and Order
Disposition/Conduct: Communication, Truthfulness in Statements to Others, Candor Towards the Tribunal, Misconduct.
M. Bar R. 13(e)
Order: Report of Findings and Order
Christina Moylan, Esq., Panel Chair
Ross Hickey, Esq., Panel Member
Diane Tennies, PhD, Public Member
Grievance Commission
Board of Overseers of the Bar v. Jennifer A. Davis, Esq.
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Docket No.: GCF #21-140
Issued by: Grievance Commission
Date: March 2, 2022
Respondent: Jennifer A Davis, Esq.
Bar Number: 008923
Order: Report of Findings and Order
Disposition/Conduct: Diligence; Communication; Conduct Prejudicial to the Administration of Justice.
M. Bar R. 13(e) and 21(b)(5)
Order: Report of Findings and Order
Peter B. Bickerman, Esq., Panel Chair
David R. Dubord, Esq., Panel Member
Leslie Karen Randolph-Anderson, Public Member
Grievance Commission
Board of Overseers of the Bar v. Michael J. Cianchette, Esq.
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Docket No.: GCF #19-245
Issued by: Grievance Commission
Date: March 3, 2022
Respondent: Michael J. Cianchette, Esq.
Bar Number: 004788
Order: Report of Findings and Order
Disposition/Conduct: Truthfulness in Statements to Others; Conflict of Interest - Business Transaction with a Client; Conflict of Interest - Dual Representation of Organization and Constituent.
M. Bar R. 13(e)
Order: Report of Findings and Order
Jane S.E. Clayton, Esq., Panel Chair
Megan A. Sanders, Esq., Panel Member
Tim I. Marks, Public Member
Grievance Commission
Board of Overseers of the Bar v. Roger Hurley, Esq.
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Docket No.: Bar-22-6
Issued by: Superior Court Justice William Stokes
Date: March 29, 2022
Respondent: Roger Hurley, Esq.
Bar Number: 004834
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. Roger Hurley, Esq.
Download Download Amended Order
Docket No.: BAR-22-6
Issued by: Justice William Stokes, Superior Court
Date: April 4, 2022
Respondent: Roger Hurley, Esq.
Bar Number: 004834
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Receivers
M. Bar R. 32
Board of Overseers of the Bar v.
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Docket No.: BAR 20-11
Issued by: Judge E. Mary Kelly
Date: March 31, 2022
Respondent: Clifford M. Ginn
Bar Number: 009919
Order: Sanction Order
Disposition/Conduct: Safekeeping Property, Client Trust Accounts, False Statement of Material Fact and Conduct Prejudicial to the Administration of Justice.
Board of Overseers of the Bar v. Clifford M. Ginn
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Docket No.: BAR 20-11
Issued by: Judge E. Mary Kelly
Date: March 31, 2022
Respondent: Clifford M. Ginn
Bar Number: 009919
Order: Sanction Order
Disposition/Conduct: Safekeeping Property, Client Trust Accounts, False Statement of Material Fact and Conduct Prejudicial to the Administration of Justice.
Board of Overseers of the Bar v. Clifford M. Ginn
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Docket No.: BAR-20-11
Issued by: Judge E. Mary Kelly
Date: March 30, 2022
Respondent: Clifford M. Ginn
Bar Number: 009919
Order: Order for Monitoring Probation Order
Disposition/Conduct: Probation & Monitoring Order
Board of Overseers of the Bar v. In Re Jennifer A. Willis
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Docket No.: CRT 22-139
Issued by: Aria Eee, Esq., Executive Director, Board of Overseers of the Bar
Date: March 7, 2022
Respondent: Jennifer A. Willis
Bar Number: 009896
Order: Order Reinstatement: Administrative
Disposition/Conduct: Administrative Order of Reinstatement
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: Cum-21-238
Issued by: PER CURIAM
Date: April 14, 2022
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Judgment vacated. Remanded for further proceedings consistent with this opinion.
Disposition/Conduct: Remanded for further proceedings.
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: CRT 21-233; CRT 22-003; BAR 21-007; BAR 22-001
Issued by: Grievance Commission Panel E
Date: April 22, 2022
Respondent: Seth T. Carey
Bar Number: 009970
Order: Report of Findings
Disposition/Conduct: Report of Findings and Recommendations by Grievance Commission
M. Bar R. 29(G)
Reinstatement Not Recommended
John J. Aromando, Esq., Panel Chair
Peter Bickerman, Esq., Panel Member
Sophia Leotsakos-Wilson, Public Member
Grievance Commission Panel E
Board of Overseers of the Bar v. Jennifer Ann Willis
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Docket No.: Bar 22-7
Issued by: Supreme Judicial Court
Date: April 4, 2022
Respondent: Jennifer Ann Willis
Bar Number: 009896
Order: Order
Disposition/Conduct: Order Permitting Board Of Overseers To Reinstate Attorney
Board of Overseers of the Bar v. Matthew J. Martin, Esq.
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Docket No.: BAR 22-4
Issued by: Single Justice
Date: May 12, 2022
Respondent: Matthew J. Martin, Esq.
Bar Number: 004784
Order: Order
Disposition/Conduct: Suspension
Board of Overseers of the Bar v. Heather B. Sanborn
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Docket No.: BAR-22-8
Issued by: Supreme Judicial Court
Date: May 18, 2022
Respondent: Heather Sanborn, Esq.
Bar Number: 004259
Order: Order
Disposition/Conduct: Order Permitting Board Of Overseers To Reinstate Attorney
Board of Overseers of the Bar v. In Re Heather B. Sanborn, Esq.
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Docket No.: Bar-22-08
Issued by: Board of Overseers of the Bar
Date: May 23, 2022
Respondent: Heather B. Sanborn, Esq.
Bar Number: 004259
Order: Order Reinstatement: Administrative
Disposition/Conduct: Administrative Order of Reinstatement
Board of Overseers of the Bar v. Paul S. Bulger, Esq.
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Docket No.: GCF #21-161
Issued by: Grievance Commission
Date: May 31, 2022
Respondent: Paul S. Bulger, Esq.
Bar Number: 003209
Order: Report of Findings and Order
Disposition/Conduct: Competence; Diligence; Failure to respond to Bar Counsel investigation; and Conduct Prejudicial to the administration of justice.
M.Bar R. 13(e) and 21(b)(5)
Megan A. Sanders, Esq., Panel Chair
Steven M. Carey, Esq., Panel Member
Richard P. Dana, CPA, Public Member
Grievance Commission
Board of Overseers of the Bar v. John C. Hunt, Esq.
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Docket No.: Bar-22-10
Issued by: Single Justice
Date: June 21, 2022
Respondent: John C. Hunt, Esq.
Bar Number: 000240
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. Daniel W. Mooers
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Docket No.: BAR 22-9
Issued by: Single Justice
Date: June 14, 2022
Respondent: Daniel W. Mooers
Bar Number: 000460
Order: Receiver Appointment Order
Disposition/Conduct: Order Appointing Receiver
M. Bar R. 32
Board of Overseers of the Bar v. In Re Gary M. Prolman
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Docket No.: BAR 14-12
Issued by: Single Justice
Date: June 17, 2022
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement After Remand
Board of Overseers of the Bar v. Sarah J. Hooke
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Docket No.: Bar-22-12
Issued by: Supreme Judicial Court
Date: June 30, 2022
Respondent: Sarah J. Hooke
Bar Number: 002580
Order: Reinstatement Order
Disposition/Conduct: Order Permitting Board Of Overseers To Reinstate Attorney
Board of Overseers of the Bar v. In Re Sara J. Hooke, Esq.
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Docket No.: BAR 22-12
Issued by: Board of Overseers of the Bar
Date: July 13. 2022
Respondent: Sarah J. Hooke, Esq.
Bar Number: 002580
Order: Order Reinstatement: Administrative
Disposition/Conduct: Administrative Order of Reinstatement
Board of Overseers of the Bar v. Gary M. Prolman
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Docket No.: BAR-14-12
Issued by: Single Justice
Date: August 3, 2022
Respondent: Gary M. Prolman
Bar Number: 007253
Order: Receiver Discharge Order
Disposition/Conduct: Order Granting Petition for Receiver Discharge
Board of Overseers of the Bar v. Board v. Keri J. Marshall
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Docket No.: BAR 22-13
Issued by: Single Justice
Date: August 22, 2022
Respondent: Keri J. Marshall
Bar Number: 003593
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
M. BAR R. 25(d)
Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: BAR-22-02
Issued by: Single Justice
Date: 2022-08-31
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Findings, Conclusions and Order
Disposition/Conduct: CLE Reporting; Violating Rules of Professional Conduct; Engaging in Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; and Conflict of Interest.
Board of Overseers of the Bar v. Wayne R. Reed
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Docket No.: BAR-22-19
Issued by: Associate Justice
Date: September 2, 2022
Respondent: Wayne R. Reed
Bar Number: 003860
Order: Reinstatement Order
Disposition/Conduct: Order Permitting Board Of Overseers To Reinstate Attorney
Board of Overseers of the Bar v. Katherine D. Hambley
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Docket No.: BAR 22-17
Issued by: Associate Justice
Date: August 29, 2022
Respondent: Katherine D. Hambley
Bar Number: 005632
Order: Reinstatement Order
Disposition/Conduct: Order Permitting Board Of Overseers To Reinstate Attorney
Board of Overseers of the Bar v. Peter J. Kaynor, Esq.
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Docket No.: BAR 22-20
Issued by: Single Justice
Date: September 7, 2022
Respondent: Peter J. Kaynor, Esq.
Bar Number: 007075
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. Peter J. Kaynor, Esq.
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Docket No.: BAR-22-20
Issued by: Single Justice
Date: September 8, 2022
Respondent: Peter J. Kaynor, Esq.
Bar Number: 007075
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Receivers
M. Bar R. 32
Board of Overseers of the Bar v. Susan C. Hopkins, Esq.
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Docket No.: BAR 22-21
Issued by: Single Justice
Date: September 7, 2022
Respondent: Susan C. Hopkins, Esq.
Bar Number: 008026
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. James L. Audiffred, Esq.
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Docket No.: BAR-21-10
Issued by: Single Justice
Date: September 9, 2022
Respondent: James L. Audiffred, Esq.
Bar Number: 002382
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Co-Receivers
M. Bar R. 32(c)
Board of Overseers of the Bar v. Michael J. Cianchette, Esq.
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Docket No.: BAR 22-005 (GCF 19-245)
Issued by: Single Justice
Date: September 14, 2022
Respondent: Michael J. Cianchette, Esq.
Bar Number: 004788
Order: Sanction Order
Disposition/Conduct: Truthfulness in Statements to Others; Conflict of Interest - Business Transaction with a Client
Board of Overseers of the Bar v. In Re Seth T. Carey
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Docket No.: 21-007 & 22-001
Issued by: Single Justice
Date: September 22, 2022
Respondent: Seth T. Carey
Bar Number: 009970
Order: Reinstatement Denied
Disposition/Conduct: Order Denying Petition for Reinstatement
Board of Overseers of the Bar v. Reginal E. Burleigh
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Docket No.: BAR-21-09
Issued by: Single Justice
Date: September 26, 2022
Respondent: Reginald E. Burleigh
Bar Number: 001472
Order: Receiver Discharge Order
Disposition/Conduct: Order to Discharge Limited Receiver
Board of Overseers of the Bar v. J. Mitchell Flick, Esq.
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Docket No.: GCF #21-301
Issued by: Grievance Commission
Date: September 29, 2022
Respondent: J. Mitchell Flick, Esq.
Bar Number: 003167
Order: Report of Findings and Order
Disposition/Conduct: Business with a Client and Violating Rules of Professional Conduct.
M. Bar R. 13(e)
Order: Report of Findings and Order
Peter B. Bickerman, Esq., Panel Chair
Marianne Lynch, Esq., Panel Member
Ricard P. Dana, Public Member
Grievance Commission
Board of Overseers of the Bar v. Pasquale J. Perrino, Jr., Esq.
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Docket No.: GCF #21-074
Issued by: Grievance Commission
Date: October 4, 2022
Respondent: Pasquale J. Perrino, Jr., Esq.
Bar Number: 001675
Order: Report of Findings and Order
Disposition/Conduct: Sexual Relations with a Client
M. Bar R. 13(e)
Order: Report of Findings and Order
Sarah McPartland-Good, Esq., Panel Chair
Erica Anne Veazey, Esq., Panel Member
Richard P. Dana, Public Member
Grievance Commission
Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: BAR-22-02
Issued by: Single Justice
Date: October 4 2022
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Sanction Order
Disposition/Conduct: CLE Reporting; Violating Rules of Professional Conduct; Engaging in Conduct involving Dishonesty, Fraud, Deceit or Misrepresentation; and Conflict of Interest.
Board of Overseers of the Bar v. J. Daniel Hoffman
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Docket No.: BAR-21-15
Issued by: Single Justice
Date: November 1, 2022
Respondent: J. Daniel Hoffman
Bar Number: 008365
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
M. BAR R. 25(d)
Board of Overseers of the Bar v. Nicolas Bull, Esq.
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Docket No.: BAR-20-007
Issued by: Single Justice
Date: October 27, 2022
Respondent: Nicholas Bull, Esq.
Bar Number: 001030
Order: Receiver Discharge Order
Disposition/Conduct: Order Granting Receiver Discharge
M. BAR R. 32(c)
Board of Overseers of the Bar v. Charlene A. Hoffman, Esq.
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Docket No.: BAR 22-24
Issued by: Single Justice
Date: October 31, 2022
Respondent: Charlene A. Hoffman, Esq.
Bar Number: 003220
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. In Re Sarah J. Morath
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Docket No.: CRT 22-254
Issued by: Board of Overseers of the Bar
Date: August 22, 2022
Respondent: Sarah J. Morath
Bar Number: 004267
Order: Order Reinstatement: Administrative
Disposition/Conduct: Administrative Order of Reinstatemen
Board of Overseers of the Bar v. In Re Katherine D. Hambley
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Docket No.:
Issued by: Board of Overseers of the Bar
Date: November 15, 2022
Respondent: Katherine D. Hambley
Bar Number: 005632
Order: Order Reinstatement: Administrative
Disposition/Conduct: Administrative Order of Reinstatement
Board of Overseers of the Bar v. In Re Brian M. Connelly
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Docket No.:
Issued by: Board of Overseers of the Bar
Date: November 15, 2022
Respondent: Brian M. Connelly
Bar Number: 008858
Order: Order Reinstatement: Administrative
Disposition/Conduct: Administrative Order of Reinstatement
Board of Overseers of the Bar v. Board v. Clifford M. Ginn
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Docket No.: BAR 20-11
Issued by: Single Justice
Date: November 10, 2022
Respondent: Clifford M. Ginn
Bar Number: 009919
Order: Order for Monitoring Probation Amended Order
Disposition/Conduct: Order Amending Probation & Monitoring
Board of Overseers of the Bar v. James F. Day, Esq.
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Docket No.: BAR 22-26
Issued by: Single Justice
Date: November 16, 2022
Respondent: James F. Day, Esq.
Bar Number: 000654
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
M. BAR R. 25(d)
Board of Overseers of the Bar v. Board v. Donald F. Brown, Esq.
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Docket No.: BAR-22-2
Issued by: Single Justice
Date: November 23, 2022
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Order for Monitoring Probation Order
Disposition/Conduct: Probation & Monitoring Order
Board of Overseers of the Bar v. Board v. Donald F. Brown, Esq.
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Docket No.: BAR 22-2
Issued by: Single Justice
Date: November 23, 2022
Respondent: Donald F. Brown, Esq.
Bar Number: 008541
Order: Order
Disposition/Conduct: Order on the Board's Motion for Clarification & Further Order
Board of Overseers of the Bar v. Board v. Kayla M. Alves, Esq.
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Docket No.: BAR 22-23
Issued by: Single Justice
Date: November 21, 2022
Respondent: kayla M. Alves, Esq.
Bar Number: 006088
Order: Amended Order Sanction Order
Disposition/Conduct: Serious crime conviction, unlawful destroying potential evidence, criminal conduct, trustworthiness or fitness as a lawyer, conduct involving dishonesty, fraud, deceit or misrepresentation and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. Board v. Christopher J. Whalley
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Docket No.: BAR-22-03
Issued by: Single Justice
Date: December 19, 2022
Respondent: Christopher J. Whalley
Bar Number: 007370
Order: Disbarment Findings, Conclusions and Order
Disposition/Conduct: Illegal Conduct; Diligence; Failure to Safekeep Property & Hold Funds Separate; Fraud; Deceit; Dishonesty; Knowingly Made False Statement of Material Fact; Conduct Prejudicial to Administration of Justice.
Board of Overseers of the Bar v. Board v. John A. Doonan, Esq.
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Docket No.: BAR-22-16
Issued by: Single Justice
Date: January 2, 2023
Respondent: John A. Doonan, Esq.
Bar Number: 003250
Order: Reciprocal Discipline
Disposition/Conduct: Public Reprimand, negligent misuse of client funds.
M. Bar R. 26(e)
Board of Overseers of the Bar v. Board v. Thomas E. Dewhurst III, Esq.
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Docket No.: BAR-22-18
Issued by: Single Justice
Date: January 5, 2023
Respondent: Thomas E. Dewhurst III, Esq.
Bar Number: 003542
Order: Reciprocal Discipline Order
Disposition/Conduct: Conflict of interest and communication with represented person.
M. Bar R. 26(e)
Board of Overseers of the Bar v. Board v. J. Mitchell Flick, Esq.
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Docket No.: GCF #22-079
Issued by: Grievance Commission
Date: January 25, 2023
Respondent: J. Mitchell Flick, Esq.
Bar Number: 003167
Order: Report of Findings and Order
Disposition/Conduct: Candor Towards the Tribunal; Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation; Conduct Prejudicial to the Administration of Justice and Knowingly Making a False Statement of Material Fact in Connection with a Disciplinary Matter.
Order: Report of Findings and Order
John J. Aromando, Esq., Panel Chair
Megan A. Sanders, Esq., Panel Member
Daniel P. Belyea, Public Member
Grievance Commission Panel E
Board of Overseers of the Bar v. Board v. Edward G. Dardis, Esq.
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Docket No.: BAR-22-25
Issued by: Single Justice
Date: January 31, 2023
Respondent: Edward G. Dardis, Esq.
Bar Number: 001509
Order: Order Immediate Interim Suspension
Disposition/Conduct: IOLTA account rule violations, failure to supervise nonlawyer assistant, failure to respond to a lawful demand for information, dishonest conduct and conduct prejudicial to the administration of justice.
ORDER OF IMMEDIATE INTERIM SUSPENSION
M. Bar R. 24
Board of Overseers of the Bar v. Edward G. Dardis
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Docket No.: BAR-22-25
Issued by: Single Justice
Date: January 31, 2023
Respondent: Edward G. Dardis
Bar Number: 001509
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. Board v. David K. Fulton, Esq.
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Docket No.: BAR-22-22
Issued by: Single Justice
Date: February 23, 2023
Respondent: David K. Fulton, Esq.
Bar Number: 002249
Order: Reciprocal Discipline Order
Disposition/Conduct: Suspension with Probation.
Board of Overseers of the Bar v. Board v. Kevin G. Grimes, Esq.
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Docket No.: GCF #20-021
Issued by: Grievance Commission
Date: March 7, 2023
Respondent: Kevin G. Grimes, Esq.
Bar Number: 007847
Order: Report of Findings and Order
Disposition/Conduct: Competence, Diligence, Communication, Failure to Deliver and Safekeep Client Property, Knowingly Make a False Statement of Material Fact or Fail to Disclose a Fact Necessary to Correct a Misapprehension and Misconduct.
M. Bar R. 13(e)(7)
Gretchen L. Jones, Esq., Panel Chair
Marianne Lynch, Esq., Panel Member
Tim I. Marks, Public Member
Grievance Commission Panel A
Board of Overseers of the Bar v. Jeremy J. Bethel, Esq.
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Docket No.: Bar 23-3
Issued by: Single Justice
Date: March 10, 2023
Respondent: Jeremy J. Bethel, Esq.
Bar Number: 006403
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
M. Bar R. 32
Board of Overseers of the Bar v. Board v. Scott L. Fenstermaker, Esq.
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Docket No.: BAR-23-4
Issued by: Single Justice
Date: 2022-03-17
Respondent: Scott L. Fenstermaker
Bar Number: 010197
Order: Order Immediate Interim Suspension
Disposition/Conduct: Unlawful Conduct and Conduct Prejudicial to the Administration of Justice.
Board of Overseers of the Bar v. Scott L. Fenstermaker
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Docket No.: BAR-23-4
Issued by: Single Justice
Date: 2022-03-17
Respondent: Scott L. Fenstermaker
Bar Number: 010197
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. Board v. Edward L. Dilworth III, Esq.
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Docket No.: GCF #22-152
Issued by: Grievance Commission
Date: March 28, 2023
Respondent: Edward L. Dilworth III, Esq.
Bar Number: 007644
Order: Report of Findings and Order
Disposition/Conduct: Admonition/Failure to provide timely written confirmation of fee sharing and failure to provide reasonably necessary communication.
Board of Overseers of the Bar v. Arthur John Greif, Esq.
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Docket No.: BAR-22-11
Issued by: Single Justice
Date: April 3, 2023
Respondent: Arthur John Greif, Esq.
Bar Number: 002551
Order: Receiver Discharge Order
Disposition/Conduct: Order to Discharge Receiver Appointed to Protect Clients' Interests
Board of Overseers of the Bar v. J. Mitchell Flick, Esq.
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Docket No.: BAR 23-2
Issued by: Single Justice
Date: April 10, 2023
Respondent: J. Mitchell Flick, Esq.
Bar Number: 003167
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. Board v. Lawrence C. Winger, Esq.
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Docket No.: GCF #22-314
Issued by: Grievance Commission
Date: May 11, 2023
Respondent: Lawrence C. Winger, Esq.
Bar Number: 002101
Order: Report of Findings and Order
Disposition/Conduct: Reprimand: Competence, diligence, communication and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. Board v. Lawrence C. Winger, Esq.
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Docket No.: GCF 22-314
Issued by: Grievance Commission
Date: May 11, 2023
Respondent: Lawrence C. Winger, Esq.
Bar Number: 002101
Order: Order for Monitoring Probation Order
Disposition/Conduct: Probation & Monitoring Order
Board of Overseers of the Bar v. Jason M. Jabar, Esq.
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Docket No.: 22-168
Issued by: Grievance Commission
Date: June 16, 2023
Respondent: Jason M. Jabar, Esq.
Bar Number: 009154
Order: Dismissal Report of Findings and Order
Disposition/Conduct: Report of Findings and Order of the Grievance Commission
Board of Overseers of the Bar v. Peter J. Kaynor, Esq.
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Docket No.: BAR-22-20
Issued by: Single Justice
Date: April 11, 2023
Respondent: Peter J. Kaynor, Esq.
Bar Number: 007075
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Co-Receivers
Board of Overseers of the Bar v. Jeremy J. Bethel, Esq.
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Docket No.: BAR-23-3
Issued by: Single Justice
Date: May 22, 2023
Respondent: Jeremy J. Bethel, Esq.
Bar Number: 006403
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Receiver
Board of Overseers of the Bar v. Seth T. Carey
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Docket No.: Mem 23-76/Cum-22-324
Issued by: Law Court
Date: June 20, 2023
Respondent: Seth T. Carey
Bar Number: 009970
Order: Decision Affirmed Reinstatement Denied
Disposition/Conduct: Judgment Affirmed - Denying Petition for Reinstatement
Board of Overseers of the Bar v. Board v. Melanie A. Allen, Esq.
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Docket No.: GCF #22-213
Issued by: Grievance Commission
Date: July 14, 2023
Respondent: Melanie A. Allen, Esq.
Bar Number: 005998
Order: Report of Findings and Order
Disposition/Conduct: Admonition: Competence, Diligence and Misconduct
Board of Overseers of the Bar v. Board v. Vanessa A. Bartlett, Esq.
Docket No.: 22-323
Issued by: Grievance Commission
Date: July 24, 2023
Respondent: Vanessa A. Bartlett, Esq.
Bar Number: 008873
Order: Reprimand Report of Findings and Order
Disposition/Conduct: Reprimand: Competence, Diligence, Failure to Respond to Lawful Request for Information, Misconduct and Conduct Prejudicial to the Administration of Justice
Board of Overseers of the Bar v. Karen M. Burke, Esq.
Docket No.: BAR 23-18
Issued by: Single Justice
Date: July 31, 2023
Respondent: Karen M. Burke, Esq.
Bar Number: 002940
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Co-Receivers
Board of Overseers of the Bar v. In re Reinstatement of Kayla Alves
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Docket No.: BAR 23-10
Issued by: Single Justice Michael A. Duddy
Date: August 3, 2023
Respondent: Kayla M. Alves
Bar Number: 006088
Order: Reinstatement Approved Order
Disposition/Conduct: Order Approving Reinstatement
Board of Overseers of the Bar v. Donald F. Brown, Esq.
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Docket No.: 2023 ME 58
Issued by: Maine Supreme Judicial Court
Date: August 24, 2023
Respondent: Donald F.. Brown
Bar Number: 008541
Order: Decision Affirmed Suspended Suspension Reprimand/Monitoring Order
Disposition/Conduct: CLE requirements; Conduct involving dishonesty, fraud, deceit or misrepresentation; Conflict of interest.
Board of Overseers of the Bar v. Dan P. Umphrey
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Docket No.: BAR-23-11
Issued by: Single Justice
Date: August 24, 2023
Respondent: Dan P. Umphrey
Bar Number: 004502
Order: Suspension Order
Disposition/Conduct: Unauthorized Practice of Law; Conduct involving Dishonesty, Deceit and Misrepresentation and Interference with the Administration of Justice; and Failure to Respond to Lawful Request for Information
Board of Overseers of the Bar v. Board v. Jason R. Buckley
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Docket No.: BAR-23-9
Issued by: Single Justice
Date: September 7, 2023
Respondent: Jason R. Buckley
Bar Number: 004070
Order: Suspension Order
Disposition/Conduct: CLE requirements and Conduct involving dishonesty, fraud, deceit or misrepresentation
Board of Overseers of the Bar v. In re Thomas P. Elias, Esq.
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Docket No.: BAR-23-21
Issued by: Single Justice
Date: August 25, 2023
Respondent: Thomas P. Elias, Esq.
Bar Number: 009062
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. In re Thomas P. Elias, Esq.
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Docket No.: BAR-23-21
Issued by: Single Justice
Date: August 29, 2023
Respondent: Thomas P. Elias, Esq.
Bar Number: 009062
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Receiver
Board of Overseers of the Bar v. Board v. Stephen Matthew Bander
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Docket No.: BAR-23-16
Issued by: Single Justice
Date: August 29, 2023
Respondent: Stephen Matthew Bander
Bar Number: 005135
Order: Disbarment Reciprocal Discipline Order
Disposition/Conduct: Reciprocal Discipline; Disbarment
Board of Overseers of the Bar v. Neil S. Shankman
Docket No.: BAR 23-13
Issued by: Single Justice
Date: June 6, 2023
Respondent: Neil S. Shankman
Bar Number: 001578
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. In re Thomas F. Shehan, Jr. Esq.
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Docket No.: BAR 23-22
Issued by: Single Justice
Date: September 22, 2023
Respondent: Thomas F. Shehan, Jr. Esq.
Bar Number: 003978
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. In re Naira B. Soifer, GAL
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Docket No.: GAL 22-370
Issued by: Guardian ad Litem Review Board
Date: October 2, 2023
Respondent: Naira B. Soifer
Bar Number:
Order: Reprimand Report of Findings and Order
Disposition/Conduct: Failure to file Compliance Report, failure to file report in timely manner, violation of the rules or an appointment order and failure to diligently investigate or communicate
Board of Overseers of the Bar v. Board v. Daniel Goldsmith Ruggiero
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Docket No.: BAR-23-6
Issued by: Single Justice
Date: October 27, 2023
Respondent: Daniel Goldsmith Ruggiero
Bar Number: 004420
Order: Suspension Reciprocal Discipline Order
Disposition/Conduct: Competency, communication, fees, supervision of nonlawyer assistants, professional independence, communications concerning a lawyer's services, firm names and letterheads and misconduct involving dishonesty, fraud, deceit or misrepresentation
Board of Overseers of the Bar v. Board v. James G. Mitchell, Jr.
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Docket No.: BAR-23-23
Issued by: Single Justice
Date: October 30, 2023
Respondent: James G. Mitchell, Jr.
Bar Number: 007221
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. Board v. Eugene McLaughlin Jr., Esq.
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Docket No.: BAR 21-05
Issued by: Single Justice
Date: February 24, 2022
Respondent: Eugene McLaughlin Jr., Esq.
Bar Number: 003748
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. Robert Meggison, Esq.
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Docket No.: Bar 23-19
Issued by: Single Justice
Date: December 2, 2023
Respondent: Robert Meggison, Esq.
Bar Number: 008816
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Receiver
Board of Overseers of the Bar v. Board v. Lawrence C. Winger, Esq.
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Docket No.: GCF #22-314
Issued by: Grievance Commission
Date: December 22, 2023
Respondent: Lawrence C. Winger, Esq.
Bar Number: 002101
Order: Amended Order Report of Findings and Order
Disposition/Conduct: Probation violation, competency, diligence, communication, knowingly disobeying an obligation under the rules of a tribunal, misconduct and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. Board v. Lawrence C. Winger, Esq.
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Docket No.: GCF #22-314
Issued by: Grievance Commission
Date: December 22, 2023
Respondent: Lawrence C. Winger, Esq.
Bar Number: 002101
Order: Order for Monitoring Probation
Disposition/Conduct: Probation & Monitoring Order
Board of Overseers of the Bar v. In Re Valeriano Diviacchi
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Docket No.: Bar 23-7
Issued by: Single Justice
Date: December 21, 2023
Respondent: Valeriano Diviacchi
Bar Number: 006975
Order: Reinstatement Denied Order
Disposition/Conduct: Order Denying Reinstatement
Board of Overseers of the Bar v. In re William N. Ferm
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Docket No.: BAR 23-12
Issued by: Single Justice
Date: December 29, 2023
Respondent: William N. Ferm
Bar Number: 000243
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Receivers
Board of Overseers of the Bar v. Karen M. Burke, Esq.
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Docket No.: BAR 23-18
Issued by: Single Justice
Date: January 3, 2024
Respondent: Karen M. Burke, Esq.
Bar Number: 002940
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Co-Receivers
Board of Overseers of the Bar v. Daniel J. Quinn
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Docket No.: Bar 23-24
Issued by: Single Justice
Date: December 28, 2023
Respondent: Daniel J. Quinn, Esq.
Bar Number: 008537
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. In Re James P. Dunleavy, Esq.
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Docket No.: BAR 24-1
Issued by: Single Justice
Date: January 8, 2024
Respondent: James P. Dunleavy, Esq.
Bar Number: 001548
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. Christopher J. Whalley
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Docket No.: BAR 22-3
Issued by: Single Justice
Date: January 9, 2024
Respondent: Christopher J. Whalley
Bar Number: 007370
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Receiver
Board of Overseers of the Bar v. Board v. David M. Zirschky, Esq.
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Docket No.: GCF# 22-214
Issued by: Grievance Commission
Date: January 12, 2024
Respondent: David M. Zirschky, Esq.
Bar Number: 005647
Order: Report of Findings and Order
Disposition/Conduct: Failure to report criminal conviction; Conduct involving dishonesty, fraud, deceit or misrepresentation; Failure to respond to lawful demand for information; and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. In re Thomas P. Elias, Esq.
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Docket No.: BAR 23-21
Issued by: Single Justice
Date: March 12, 2024
Respondent: Thomas P. Elias, Esq.
Bar Number: 009062
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment Limited Receiver
Board of Overseers of the Bar v. In re Petition for Reinstatement of Donna D. Vincenti
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Docket No.: BAR 24-2
Issued by: Single Justice
Date: March 13, 2024
Respondent: Donna D. Vincenti
Bar Number: 002822
Order: Reinstatement Approved Order
Disposition/Conduct: Order Granting Reinstatement
Board of Overseers of the Bar v. In re William N. Ferm
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Docket No.: BAR 23-12
Issued by: Single Justice
Date: May 12, 2023
Respondent: William N. Ferm
Bar Number: 000243
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. In re Robert E. Meggison
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Docket No.: BAR 23-19
Issued by: Single Justice
Date: July 28, 2023
Respondent: Robert Meggison, Esq.
Bar Number: 008816
Order: Receiver Appointment
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. Board v. Matthew J. Martin
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Docket No.: BAR 23-1
Issued by: Single Justice
Date: March 18, 2024
Respondent: Matthew J. Martin
Bar Number: 004754
Order: Reciprocal Discipline Disabililty Suspension
Disposition/Conduct: Reciprocal Discipline: Disability Suspension
Board of Overseers of the Bar v. In re Vicki Mathews, Esq.
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Docket No.: BAR 24-
Issued by: Single Justice
Date: April 8, 2024
Respondent: Vicki Mathews
Bar Number: 007793
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Co-Receivers
Board of Overseers of the Bar v. In Re: Charlene A. Hoffman
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Docket No.: 22-24
Issued by: Single Justice
Date: February 15, 2023
Respondent: Charlene A. Hoffman
Bar Number: 003220
Order: Receiver Discharge Order
Disposition/Conduct: Receiver Discharge Order
Board of Overseers of the Bar v. Stephen C. Packard, Esq.
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Docket No.: Bar 24-05
Issued by: Single Justice
Date: April 22, 2024
Respondent: Stephen C. Packard, Esq.
Bar Number: 000481
Order: Receiver Appointment Order
Disposition/Conduct: Appointment of Limited Receiver
Board of Overseers of the Bar v. In Re Clarence H. Spurling, Esq.
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Docket No.: BAR 20-8
Issued by: Single Justice
Date: August 24, 2021
Respondent: Clarence H. Spruling, Esq.
Bar Number: 007416
Order: Receiver Discharge Order
Disposition/Conduct: Discharge of Receivers
Board of Overseers of the Bar v. Board v. Scott L. Fenstermaker
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Docket No.: BAR-23-4
Issued by: Single Justice
Date: April 25, 2024
Respondent: Scott L. Fenstermaker
Bar Number: 010197
Order: Decision
Disposition/Conduct: Competence, conflict of interest, meritorious claims and contentions, lawyer as witness, respect for rights of third persons, judicial and legal officials, misconduct and conduct prejudicial to the administration of justice
Board of Overseers of the Bar v. Board v. Kevin G. Grimes
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Docket No.: BAR 23-5
Issued by: Single Justice
Date: April 30, 2024
Respondent: Kevin G. Grimes
Bar Number: 007847
Order: Suspension Sanction Order
Disposition/Conduct: Competence; diligence; communication; safekeeping property; candor towards the tribunal; bar admission and disciplinary matters; misconduct; conduct involving dishonesty, fraud, deceit or misrepresentation; and conduct prejudicial to the administration of
Board of Overseers of the Bar v. In re Kevin G. Grimes
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Docket No.: BAR-24-10
Issued by: Single Justice
Date: May 7, 2024
Respondent: Kevin G. Grimes
Bar Number: 007847
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Co-Receivers
Board of Overseers of the Bar v. In re Receivership John C. Hunt, Esq.
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Docket No.: BAR-22-10
Issued by: Single Justice
Date: May 6, 2024
Respondent: John C. Hunt
Bar Number: 000240
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Receiver
Board of Overseers of the Bar v. Board v. Dan P. Umphrey
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Docket No.: BAR-22-14
Issued by: Single Justice
Date: May 10, 2024
Respondent: Dan P. Umphrey
Bar Number: 004502
Order: Suspension Sanction Order
Disposition/Conduct: Diligence, Communication, Fees, Bar Admission and Disciplinary Matters and Misconduct.
Board of Overseers of the Bar v. Board v. Donald J. Gasink, Esq.
Docket No.: GCF 23-005
Issued by: Grievance Commission
Date: May 16, 2024
Respondent: Donald J. Gasink
Bar Number: 001772
Order: Admonition Report of Findings and Order
Disposition/Conduct: Diligence, fairness to opposing party and counsel, misconduct and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. In re Deborah Feagans, GAL
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Docket No.: GAL 23-169
Issued by: Guardian ad Litem Review Board
Date: May 16, 2024
Respondent: Deborah Feagans, GAL
Bar Number:
Order: Reprimand Report of Findings and Order
Disposition/Conduct: Failure to file timely final written report, violation of court order, failure to file compliance report, failure to obtain court approval to exceed hours, failure to submit bills every ninety days.
Board of Overseers of the Bar v. In re James P. Dunleavy, Esq.
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Docket No.: BAR 24-01
Issued by: Single Justice
Date: May 14, 2024
Respondent: James P. Dunleavy, Esq.
Bar Number: 001548
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Receiver
Board of Overseers of the Bar v. Board v. George Royle, V
Docket No.: BAR-24-4
Issued by: Single Justice
Date: May 23, 2024
Respondent: George Royle V
Bar Number: 004305
Order: Suspension Order
Disposition/Conduct: Conviction of Serious Crime
Board of Overseers of the Bar v. In Re Receivership Of Vicki M. Mathews, Esq.
Docket No.: BAR-24-08
Issued by: Single Justice
Date: June 13, 2024
Respondent: Vicki M. Mathews
Bar Number: 007793
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Co-Receivers
Board of Overseers of the Bar v. Board v. Scott L. Fenstermaker
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Docket No.: BAR-23-4
Issued by: Single Justice
Date: June 21, 2024
Respondent: Scott L. Fenstermaker
Bar Number: 010197
Order: Suspension Order
Disposition/Conduct: Suspension
Board of Overseers of the Bar v. In re Warren Poulin, Esq.
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Docket No.: BAR 24-14
Issued by: Single Justice
Date: June 21, 2024
Respondent: Warren Poulin
Bar Number: 000125
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Limited Co-Receivers
Board of Overseers of the Bar v. Board v. James P. Loring
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Docket No.: BAR 24-11
Issued by: Single Justice
Date: June 21, 2024
Respondent: James P. Loring
Bar Number: 003392
Order: Order of Surrender Order
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. Board v. Eliot R. Cutler
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Docket No.: BAR 23-15
Issued by: Single Justice
Date: July 22, 2024
Respondent: Eliot R. Cutler
Bar Number: 002088
Order: Disbarment Reciprocal Discipline Order
Disposition/Conduct: Conviction of Four Counts of Possession of Sexually Explicit Material of a Minor Under 12
Board of Overseers of the Bar v. Board v. Amy L. Fairfield, Esq.
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Docket No.: GCF 22-212
Issued by: Grievance Commission
Date: July 22, 2024
Respondent: Amy L. Fairfield, Esq.
Bar Number: 009598
Order: Reprimand Probation Report of Findings and Order
Disposition/Conduct: Competence, diligence, meritorious claims and contentions, fairness to opposing party and counsel, and conduct prejudicial to the administration of justice
Board of Overseers of the Bar v. Board v. Jacqueline L.L. Gomes, Esq.
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Docket No.: GCF 23-221
Issued by: Grievance Commission
Date: July 29, 2024
Respondent: Jacqueline L.L. Gomes, Esq.
Bar Number: 007360
Order: Reprimand Report of Findings and Order
Disposition/Conduct: Competency, allocation of authority, diligence, communication, declining or terminating representation, failure to respond to lawful request for information, and misconduct and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. In re Michael L. Dubois, Esq.
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Docket No.: BAR 24-18
Issued by: Single Justice
Date: July 17, 2024
Respondent: Michael L. Dubois, Esq.
Bar Number: 003827
Order: Receiver Appointment Order
Disposition/Conduct: Order for Appointment of Limited Co-Receivers
Board of Overseers of the Bar v. Board v. Lowell D. Weeks
Docket No.: BAR 96-6
Issued by: Single Justice
Date: July 30, 1996
Respondent: Lowell D. Weeks
Bar Number: 001430
Order: Suspension Decision and Order
Disposition/Conduct: Suspension
Board of Overseers of the Bar v. Board v. Charles G. Williams III
Docket No.: BAR-02-5
Issued by: Single Justice
Date: May 1, 2003
Respondent: Charles G. Williams III
Bar Number: 8827
Order: Order
Disposition/Conduct: Order for Temporary Custody of Files
Order for Temporary Custody of Files
Board of Overseers of the Bar v. Board v. Seth H. Berner
Docket No.: 92-G-264
Issued by: Grievance Commission
Date: November 16, 1993
Respondent: Seth H. Berner
Bar Number: 002774
Order: Dismissal with Warning Findings and Conclusions
Disposition/Conduct: Dismissal with Warning
Board of Overseers of the Bar v. Board v. Mark S. Kierstead
Docket No.: 86-102
Issued by: Grievance Commission
Date: October 28, 1998
Respondent: Mark S. Kierstead
Bar Number: 001895
Order: Reprimand
Disposition/Conduct: Reprimand
Board of Overseers of the Bar v. Board v. Peter S. Kelley
Docket No.: 92-G-238
Issued by: Grievance Commission
Date: November 8, 1994
Respondent: Peter S. Kelley
Bar Number: 001940
Order: Reprimand
Disposition/Conduct: Reprimand
Board of Overseers of the Bar v. Board v. Aaron Blaschke Rowden
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Docket No.: BAR 24-19
Issued by: Single Justice
Date: August 5, 2024
Respondent: Aaron Blaschke Rowden
Bar Number: 004694
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. Board v. Christopher R. Largay, Esq.
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Docket No.: GCF 22-331
Issued by: Grievance Commission
Date: July 22, 2024
Respondent: Christopher R. Largay, Esq.
Bar Number: 007348
Order: Reprimand/Monitoring Order Probation
Disposition/Conduct: Lack of diligence, lack of communication and misconduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. Board v. Roger M. Champagne, Esq.
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Docket No.: GCF 23-176 & 23-184
Issued by: Grievance Commission
Date: August 13, 2024
Respondent: Roger M. Champagne, Esq.
Bar Number: 009273
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Probable cause found for further proceedings before the Court
Board of Overseers of the Bar v. In re Michael L. Dubois, Esq.
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Docket No.: BAR 24-18
Issued by: Single Justice
Date: August 7, 2024
Respondent: Michael L. Dubois, Esq.
Bar Number: 003827
Order: Receiver Appointment Amended Order
Disposition/Conduct: Amended Order for Appointment of Limited Co-Receivers
Board of Overseers of the Bar v. Board v. Paul S. Bulger, Esq.
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Docket No.: BAR 24-13
Issued by: Single Justice
Date: August 15, 2024
Respondent: Paul S. Bulger
Bar Number: 003209
Order: Order of Surrender
Disposition/Conduct: Order Accepting Surrender of License
Board of Overseers of the Bar v. Board v. William B. Blaisdell IV, Esq.
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Docket No.: BAR 24-07
Issued by: Single Justice
Date: August 16, 2024
Respondent: William B. Blaisdell IV, Esq.
Bar Number: 008799
Order: Order Suspended Suspension/Monitoring
Disposition/Conduct: Diligence, communication, failure to withdraw from representation upon request, expediting litigation, failure to respond to lawful request for information, misconduct
Board of Overseers of the Bar v. In re Petition for Reinstatement to the Maine Bar of Timothy Fredheim
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Docket No.: BAR 24-15
Issued by: Single Justice
Date: August 12, 2024
Respondent: Timothy Fredheim
Bar Number: 007940
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement
Board of Overseers of the Bar v. In re Petition for Reinstatement of Bronwen Pierson
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Docket No.: BAR 24-12
Issued by: Single Justice
Date: August 16, 2024
Respondent: Bronwen Pierson
Bar Number: 008547
Order: Reinstatement Order
Disposition/Conduct: Order of Reinstatement
Board of Overseers of the Bar v. Board v. Jon P. Plourde
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Docket No.: GCF 23-164
Issued by: Grievance Commission
Date: September 27, 2024
Respondent: Jon. P. Plourde
Bar Number: 004772
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Report Finding of Probable Cause for Filing of Information with the Court
Board of Overseers of the Bar v. Board Counsel v. Melanie A. Allen, Esq.
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Docket No.: GAL 23-577
Issued by: Guardian Ad Litem Review Board
Date: October 18, 2024
Respondent: Melanie A. Allen
Bar Number: 005998
Order: Report of Findings and Order
Disposition/Conduct: REMOVAL: Conflicts of interest and Mandatory Disclosure; Willful Violation of order imposing discipline; Willful failure to comply with subpoena or knowingly fail to respond to a lawful demand from disciplinary authority; Failure to Comply with duty to Re
Board of Overseers of the Bar v. In Re Receivership Of Michael L. Dubois, Esq.
Docket No.: BAR 24-18
Issued by: Single Justice
Date: October 18, 2024
Respondent: Michael L. Dubois, Esq.
Bar Number: 003827
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Co-Receivers
Board of Overseers of the Bar v. Board v. David M. Blumenthal, Esq.
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Docket No.: BAR 24-17
Issued by: Single Justice
Date: November 6, 2024
Respondent: David M. Blumenthal, Esq.
Bar Number: 007917
Order: Reprimand Reciprocal Discipline Order
Disposition/Conduct: Scope of representation and allocation of authority between client and lawyer; communication.
Board of Overseers of the Bar v. Board v. Edward G. Dardis, Esq.
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Docket No.: BAR 22-25
Issued by: Single Justice
Date: November 5, 2024
Respondent: Edward G. Dardis
Bar Number: 001509
Order: Disbarment Findings, Conclusions and Order
Disposition/Conduct: Commingling/failure to safeguard funds; violating court orders; obstructing access to evidence; failure to supervise; failure to respond to lawful requests for information; unlawful, dishonest conduct prejudicial to administration of justice
Board of Overseers of the Bar v. GAL Review Board Counsel v. Heidi M Drew, Esq..
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Docket No.: GAL 23-364
Issued by: District Court Judge
Date: November 21, 2024
Respondent: Heidi M. Drew
Bar Number: 004704
Order: Order Immediate Interim Suspension
Disposition/Conduct: GAL Immediate Interim Suspension
Board of Overseers of the Bar v. Board v. Daniel D. Feldman, Esq.
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Docket No.: GCF 24-037
Issued by: Grievance Commission
Date: December 9, 2024
Respondent: Daniel D. Feldman, Esq.
Bar Number: 005638
Order: Reprimand Probation Report of Findings and Order
Disposition/Conduct: Reprimand w/Probation: Competence, diligence, communication and conduct prejudicial to the administration of justice.
Board of Overseers of the Bar v. Board v. Robert F. Stone, Esq.
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Docket No.: GCF 22-248
Issued by: Grievance Commission
Date: December 24, 2024
Respondent: Robert F. Stone, Esq.
Bar Number: 010224
Order: Report Finding of Probable Cause for Filing of Information with the Court
Disposition/Conduct: Probable cause found for further proceedings before the Court
Board of Overseers of the Bar v. Board v. Mark A. Perry, Esq.
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Docket No.: GCF 24-005
Issued by: Grievance Commission
Date: December 26, 2024
Respondent: Mark A. Perry
Bar Number: 002477
Order: Admonition Report of Findings and Order
Disposition/Conduct: Decision under appeal
Board of Overseers of the Bar v. Lynne A. Williams
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Docket No.: BAR 24-28
Issued by: Supreme Judicial Court
Date: December 17, 2024
Respondent: Lynne A. Williams
Bar Number: 009267
Order: Immediate Interim Suspension
Disposition/Conduct: Immediate Interim Suspension: Misconduct serves as an imminent threat to clients, the public and to the administration of justice.
Board of Overseers of the Bar v. In Re Receivership Of Lynne A. Williams, Esq.
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Docket No.: SJC BAR 24-28
Issued by: Maine Supreme Judical Court
Date: December 17, 2024
Respondent: Lynne A. Williams
Bar Number: 009267
Order: Receiver Appointment
Disposition/Conduct: Order for Appointment of Co-Receivers
Board of Overseers of the Bar v. Daniel J. Quinn
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Docket No.: BAR 24-23
Issued by: Supreme Judicial Court
Date: December 17, 2024
Respondent:
Bar Number:
Order: Receiver Appointment
Disposition/Conduct: Order for Appointment of Limited Receiver
Board of Overseers of the Bar v. Joe Lewis, Esq.
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Docket No.: BAR-25-1
Issued by: Supreme Judicial Court
Date: January 17, 2025
Respondent: Joe Lewis
Bar Number: 004800
Order: Receiver Appointment
Disposition/Conduct: Order for Appointment of Limited Receiver
Board of Overseers of the Bar v. Board v. Jeremy J. Bethel, Esq.
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Docket No.: GCF 23-398
Issued by: Grievance Commission
Date: January 13, 2025
Respondent: Jeremy J. Bethel, Esq.
Bar Number: 006403
Order: Admonition Report of Findings
Disposition/Conduct: Report of Findings and Order of the Grievance Commission
Board of Overseers of the Bar v. Anna Barbara Hantz Marconi - Stratham, NH
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Docket No.: BAR 24-22
Issued by: Supreme Judicial Court
Date: January 20, 2025
Respondent: Anna Barbara Hantz Marconi
Bar Number: 007611
Order: Reciprocal Discipline
Disposition/Conduct: Order of Reciprocal Discipline
Board of Overseers of the Bar v. Roger M. Champagne, Esq.
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Docket No.: BAR 24-20
Issued by: Supreme Judicial Court
Date: January 13, 2025
Respondent: Roger M. Champagne, Esq.
Bar Number: 009273
Order: Findings, Conclusions and Order Sanction Order
Disposition/Conduct: Competence, fees, confidentiality, conflict of interest, falure to supervise and unauthorized practice of law
Board of Overseers of the Bar v. Roger M. Champagne, Esq.
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Docket No.: BAR 24-20
Issued by: Board of Overseers of the Bar
Date: January 13, 2025
Respondent: Roger M. Champagne, Esq.
Bar Number: 009273
Order: Order for Monitoring Probation
Disposition/Conduct:
Board of Overseers of the Bar v. Jon P. Plourde
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Docket No.: BAR 24-21
Issued by: Supreme Judicial Court
Date: January 8, 2025
Respondent: Jon P. Plourde
Bar Number: 004772
Order: Suspension Findings, Conclusions and Order Sanction Order
Disposition/Conduct: candor towards tribunal, fairness to opposing party and counsel, truthfulness in statements to others and misconduct
Board of Overseers of the Bar v. Heidi M. Drew, Esq.
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Docket No.: GAL-24-364
Issued by: Maine District Court
Date: February 5, 2025
Respondent: Heidi M. Drew, Esq.
Bar Number: 004704
Order: Final Order on Motion for Reconsideration
Disposition/Conduct: Interim Suspension Terminated
Board of Overseers of the Bar v. Charles F. Budd, Jr., Esq.
Docket No.: GCF 23-112
Issued by: Grievance Commission
Date: February 14, 2025
Respondent: Charles F. Budd, Jr., Esq.
Bar Number: 009428
Order: Admonition Report of Findings and Order
Disposition/Conduct: Admonition. Misconduct and Conduct Prejudicial to the Administration of Justice.
Board of Overseers of the Bar v. William B. Blaisdell, IV, Esq.
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Docket No.: BAR 24-07
Issued by: Supreme Judicial Court
Date: March 11, 2025
Respondent: William B. Blaisdell, IV, Esq.
Bar Number: 008799
Order: Order
Disposition/Conduct: Status Order
Board of Overseers of the Bar v. Stephen D. Bither, Esq.
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Docket No.: BAR-25-04
Issued by: Supreme Judicial Court
Date: March 11, 2025
Respondent: In re: Stephen D. Bither, Esq.
Bar Number: 03911
Order: Receiver Appointment
Disposition/Conduct: Order for Appointment of Receiver
Board of Overseers of the Bar v. Jennifer S. Sparda, Esq.
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Docket No.: BAR 24-27
Issued by: Supreme Judicial Court
Date: March 14, 2025
Respondent: Jennifer S. Sparda
Bar Number: 004839
Order: Reinstatement
Disposition/Conduct: Reinstatement
Board of Overseers of the Bar v. Francesca DeSanctis, Esq.
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Docket No.: BAR 24-29
Issued by: Supreme Judicial Court
Date: February 24, 2025
Respondent: Francesca DeSanctis, Esq.
Bar Number: 004100
Order: Reinstatement
Disposition/Conduct: Reinstatement
Board of Overseers of the Bar v. Vanessa A. Bartlett, Esq.
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Docket No.: BAR -25-6
Issued by: Supreme Judicial Court
Date: March 22, 2025
Respondent: Vanessa A. Bartlett, Esq.
Bar Number: 008874
Order: Order for Monitoring
Disposition/Conduct: Monitoring Order
Board of Overseers of the Bar v. In Re: Daniel J. Quinn
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Docket No.: BAR 24-23
Issued by: Maine Supreme Judical Court
Date: March 28, 2025
Respondent: In Re: Daniel J. Quinn
Bar Number: 008537
Order: Receiver Discharge Order
Disposition/Conduct: Order for Discharge of Receivership
Board of Overseers of the Bar v. William B. Blaisdell, IV, Esq.
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Docket No.: BAR-24-07
Issued by: Maine Supreme Judical Court
Date: April 7, 2025
Respondent: William B. Blaisdell, IV, Esq.
Bar Number: 008799
Order: Immediate Interim Suspension
Disposition/Conduct: Violations of Rules of Professional Conduct, threatens imminent injury to a client, to the public, and to the interests of justice
Board of Overseers of the Bar v. William B. Blaisdell, IV, Esq.
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Docket No.: BAR-24-07
Issued by: Maine Supreme Judical Court
Date: April 7, 2025
Respondent: William B. Blaisdell, IV, Esq.
Bar Number: 008799
Order: Receiver Appointment
Disposition/Conduct: Appointment of Co-Receivers
Board of Overseers of the Bar v. William B. Blaisdell, IV, Esq.
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Docket No.:
Issued by: Maine Judicial Branch
Date: April 11, 2025
Respondent: William B. Blaisdell, IV, Esq.
Bar Number: 008799
Order: Suspension
Disposition/Conduct: Suspension from the Maine Judicial Branch GAL Roster
Board of Overseers of the Bar v. In Re: Paul L. Gibbons, Esq.
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Docket No.: BAR-25-__
Issued by: Maine Supreme Judical Court
Date: February 27, 2025
Respondent: Paul L. Gibbons
Bar Number: 001941
Order: Receiver Appointment
Disposition/Conduct: Order appointing co-receivers
Board of Overseers of the Bar v. In Re: Jan Geller, Esq.
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Docket No.: BAR 25-12
Issued by: Maine Supreme Judical Court
Date: April 15, 2025
Respondent: In Re: Jan B. Geller
Bar Number: 006107
Order: Receiver Appointment
Disposition/Conduct: Order appointing Receiver
